Link: GAO Opinion
Agency: United States Agency for International Development
Disposition: Request denied.
Keywords: Corrective Action; Protest Costs; Clearly Meritorious Protest
General Counsel P.C. Highlight: GAO may recommend reimbursement of protest costs, including reasonable attorneys’ fees, if GAO determines that the agency unduly delayed taking corrective action in the face of a clearly meritorious protest. A protest is clearly meritorious where a reasonable agency inquiry into the protester’s allegations would reveal facts showing the absence of a defensible legal position.
Iron Vine Security, LLC requests that GAO recommend that the U.S. Agency for International Development (USAID) reimburse its costs of filing and pursuing its protest of the award of a blanket purchase agreement (BPA), under a request for quotations (RFQ) for information system security services.
The RFQ provided for the award of a BPA under the General Services Administration’s Federal Supply Schedule 70 for information security support services for the USAID Chief Information Security Officer and Chief Privacy Officer. Vendors were informed that award would be made on a best value basis, considering price and the following evaluation factors: technical approach and competencies, key and support personnel, and past performance. The BPA scope of work encompassed a broad range of tasks to support the Information System Security Program and the USAID Privacy Program, including providing subject matter expertise on federal information system security and privacy policies, regulations and standards, and providing audit and compliance support. The PWS also identified specific tasks the contractor would be required to perform. USAID received quotations from four vendors. The technical evaluation team (TET) individually reviewed and assigned numeric scores to the quotations and after a trade-off analysis, the TET concluded that another offeror’s quotation reflected the best value to the government. Iron Vine protested challenging the evaluation of quotations and the award decision. The protester raised a number of arguments in its initial protest, including, as relevant here, that USAID failed to evaluate quotations in accordance with solicitation, failed to properly document its tradeoff analysis and source selection decision, and made an unreasonable award decision.
Following receipt of the agency’s report, Iron Vine filed a supplemental protest, arguing that USAID improperly assessed a deficiency in evaluating Iron Vine’s proposal under the technical approach and competencies factor, and unreasonably compared the prices offered by Iron Vine and the awardee. As relevant here, Iron Vine also asserted, in its comments on the agency report, that the awardee’s quotation exceeded the page limitation in the RFQ. USAID advised GAO that it was taking corrective action because of an ambiguity in the RFQ’s page limitation. GAO dismissed Iron Vine’s protest as academic.
Iron Vine requests that GAO recommend that the agency reimburse its costs of pursuing its initial and supplemental protests. Iron Vine argues that USAID unduly delayed taking corrective action where Iron Vine’s protest grounds were clearly meritorious. GAO states that when a procuring agency takes corrective action in response to a protest, GAO may recommend reimbursement of protest costs, including reasonable attorneys’ fees, if, based on the circumstances of the case, GAO determines that the agency unduly delayed taking corrective action in the face of a clearly meritorious protest, thereby causing the protester to expend unnecessary time and resources to make further use of the protest process in order to obtain relief. The mere fact that an agency decides to take corrective action does not also establish that a statute or regulation clearly has been violated. Thus, as a prerequisite to recommending the reimbursement of costs where a protest has been settled by corrective action, not only must the protest have been meritorious, but it also must have been clearly meritorious, i.e., not a close question. A protest is clearly meritorious where a reasonable agency inquiry into the protester’s allegations would reveal facts showing the absence of a defensible legal position.
Here, GAO finds no basis to conclude that Iron Vine’s initial protest grounds were clearly meritorious. Although Iron Vine argued in its initial protest that USAID failed to evaluate quotations in accordance with identified evaluation factors, the agency responded that its evaluated weaknesses corresponded to PWS tasks and the solicitation provided for evaluating vendors’ approaches to performing PWS tasks. On this record, GAO does not find that the protest was clearly meritorious with respect to whether the agency used unstated factors in evaluating Iron Vine’s quotation. The request for entitlement to protest costs is denied.