• LinkedIn
  • Google +
  • Twitter
  • Facebook

+1-703-556-0411

Bid Protest Weekly
  • Home
  • Bid Protest Ed Center
    • WHAT is a bid protest?
    • WHO can file a bid protest
    • DO I need an Attorney?
    • WHY Should you file a bid protest?
    • WHEN Must you file a bid protest?
    • WHERE can you file a bid protest?
    • READING the RFP
  • Blog
  • Topics
  • About Us
  • Contact Us

KAES Enterprises, LLC-Protest and Costs, B-402050.4, February 12, 2010

  • By GCPC GovCon Legal Team
  • February 25, 2010
  • Cancellation of a SolicitationReimbursement of Protest Costs

Link: GAO Opinion

Agency: Federal Emergency Management Agency

Disposition: Protest denied; request for reimbursement denied in part and sustained in part.

Keywords: Cancellation of RFP; Award of Protest Costs

General Counsel P.C. Highlight: Cancellation of a procurement is justified where the Agency determines that its needs have changed and the RFP as written no longer meets those needs; Corrective action taken during a protest but well after the Agency Report and Protester’s Comments are filed will justify recommendation of payment of protest costs and fees on a clearly meritorious protest.

—————————————————————————————————————————–

The Federal Emergency Management Agency (FEMA) issued a request for proposals (RFP) to provide generator maintenance, and subsequently awarded the contract to a vendor following its evaluation of proposals. After this award, KAES Enterprises, LLC, one of the unsuccessful bidders, protested the award to GAO on the primary basis that its proposal had been improperly excluded from the competitive range without consideration of its price. GAO conducted an “outcome prediction” alternative dispute resolution (ADR) conference, during which the parties were notified that KAES would likely be successful in its protest and that GAO would likely recommend that FEMA reassess KAES’s proposal to see if it should properly fall in the competitive range. In response, FEMA canceled the contract award, canceled the solicitation, and stated its intent to draft a new solicitation and to re-solicit the requirement, stating that its technical needs changed to the point where the contract award under the original solicitation would be inadequate to support its needs.

KAES protested this cancellation, claiming a number of different protest grounds. First, KAES asserts that the cancellation lacked credibility and was a pretext to avoid having to award the contract to KAES. This basis was found to be lacking. GAO presumes that procurement authorities act in good faith unless the record shows an intent by the agency to injure the protestor. Here, KAES general assertion of bad faith by FEMA did not evidence the necessary intent.

Next KAES claimed that it would be prejudiced by the cancellation because it prices were presumably exposed. GAO again points to the fact that this assertion lacks evidence. There was no evidence that KAES’s prices have been exposed, and further, there was no showing that KAES would be otherwise prejudiced by the cancellation to an extent greater than the other offerors.

Finally, KAES argued that the cancellation is inconsistent with the corrective action recommended by GAO during the ADR conference. However, during the conference, the GAO attorney did not recommend corrective action, rather he advised the parties of the likely recommendation in the event that the protest was sustained. For these reasons, GAO denied KAES’s protest of FEMA’s cancellation.

KAES also requested two reimbursements, one for the costs of pursing its original protest (challenging its exclusion from the competitive range), and the other for the costs of preparing its proposal on a procurement that was subsequently cancelled. GAO denied KAES’s request for reimbursement for the costs of the preparing its proposal because the expenses represented typical costs of doing business and competing for government contracts where the reasons for cancelling the solicitation were found to be unobjectionable. However, GAO recommended that KAES be reimbursed its costs for protesting FEMA’s decision to exclude it from the competitive range without considering its price.

In considering whether to grant a reimbursement of protest costs, GAO considers whether the procuring agency took corrective action in response to a protest, if so, did the agency unduly delay in taking corrective action in the face of a clearly meritorious protest. Here, because the result of the ADR conference was that the protest would likely be sustained, GAO deemed the protest clearly meritorious. Additionally, GAO found that FEMA did not take the corrective action promptly in the face of a clearly meritorious protest. GAO has traditionally held that corrective action will be considered prompt if it is taken before the due date for the agency report responding to the protest, will not be considered prompt if it is taken after that date. In summary, GAO denied the cancellation protest, denied the request for payment of bid and proposal costs, but granted the request for payment of protest costs relating to the meritorious protest ground.

Share

Related Posts

Matter of Spry Methods, Inc.—Reimbursement of Protest Costs

March 23, 2020

Matter of ANAMAR Environmental Consulting, Inc.

April 11, 2017

SpectrumS4, LLC–Costs, B-408227.4, August 26, 2013

September 10, 2013

Latvian Connection, LLC; Solution Managers International–USA, LLC, B-408182.3, B-408182.4, August 13, 2013

August 21, 2013

Comments are closed

Search Bid Protest Weekly

Need help with a bid protest?

Call us at: 703-556-0411 Or fill out this form:

Categories

  • 8(a) Sole Source Awards
  • Acknowledging Amendments
  • Adequately Written Proposal
  • Adverse Agency Action
  • Adverse Impact Analysis
  • Agency Tender
  • Alternate or Previously-Approved Product
  • Alternative Dispute Resolution
  • Ambiguity in Solicitation
  • Attorney's Fees
  • Bad Faith in Evaluation
  • Below-Cost Offer
  • Best Value
  • Beyond the Scope
  • Bias
  • Bid and Proposal Costs
  • Bid Bond
  • Bid Compliance
  • Bid Protest Decisions
  • Bid Protest Jurisdiction
  • Bid Protests
  • Bidding Best Practices
  • Blanket Purchase Agreement
  • Blanket Purchase Order
  • Blog Articles
  • Bona Fide Needs Rule
  • Brand Name or Equal
  • Broad Agency Announcement
  • Brooks Act
  • Bundling or Consolidation
  • Buy American Act
  • Cancellation of a Solicitation
  • Capability of Contractor
  • CCR Registration
  • Certificate of Competency (COC)
  • Certification Requirements
  • Changes Clause
  • Clarifications
  • Clear and Convincing Evidence
  • Clearly Meritorious Protest
  • Clerical Error
  • Commercial Item Acquisition
  • Competitive Range
  • Compliance
  • Conflict of Interest
  • Construction Design-Build
  • Construction Services
  • Contract Administration
  • Contract Modifications
  • Contracting Preference
  • Contractor Responsibility
  • Corporate Capability
  • Corrective Action
  • Cost Accounting System
  • Cost Evaluation
  • Cost Realism
  • Cost Reimbursement Contract
  • Cost-Technical Trade-Off
  • Customary Commercial Practice
  • CVE
  • DCAA Audit
  • Debriefing
  • Default Termination
  • Deficient Price Proposal
  • Delivery Order jurisdiction
  • Delivery Schedule
  • Designated Employee Agent
  • Disclosure of Price
  • Disclosure of Source Selection-Sensitive Information
  • Discussions
  • Disqualification
  • Documentation of Evaluation
  • Domestic Production Requirement
  • Education Center Articles
  • Electronic Filing
  • Evaluation Criteria
  • Evaluations
  • Events
  • Executive Order Compliance
  • Experience of Contractor
  • Experience Requirement
  • Facility Clearance
  • Fair Market Price
  • FASA
  • FedBizOpps
  • Federal Prison Industries (FPI)
  • Filing Deadlines
  • Final Evaluation
  • Final Proposal Revisions
  • Financial Responsibility
  • Fixed Price Contract
  • Former Government Employees
  • FSS Contract
  • GAO Bid Protest Review
  • GAO Jurisdiction
  • GAO Standard of Review
  • Government Contracts
  • Government Office Closings
  • Government Surplus Material
  • GSA Lease
  • HUBZone
  • ID/IQ
  • Impaired Objectivity
  • In-Sourcing
  • Incentive Fee
  • Inclement Weather Delay
  • Incomplete Proposal
  • Incorporation by Reference
  • Incumbent Capture
  • Incumbent Status
  • Independent Government Estimate (IGE)
  • Individual Environmental Report
  • Industrial Mobilization
  • Innovations
  • Interested Party
  • Invitation for Bid
  • Invited Contractor
  • Javits-Wagner-O'Day Act
  • Joint Venture
  • Key Personnel
  • Labor Hours
  • Labor Rate Pricing
  • Late Proposals
  • Late Submissions
  • Level of Effort
  • Licensing Requirements
  • Limitation on Subcontracting
  • Liquidated Damages
  • Lost Proposal
  • Lowest Price Technically Acceptable
  • Mail-Box Rule
  • Management Planning
  • Market Research
  • MAS Contracts
  • Material Misrepresentation
  • Material Solicitation Amendment
  • Material Solicitation Terms
  • Meaningful Discussions
  • Micro-Purchase Threshold
  • Minimum Requirements
  • Misleading Discussions
  • Mistake
  • Mitigation Strategy
  • Multiple Awards
  • NAICS Code
  • National Security
  • Negotiation
  • News
  • Non-Procurement Instruments
  • Novations
  • Offeror Representations
  • OMB Circular A-76
  • Option Exercise
  • Oral Presentations
  • Organizational Conflict of Interest (OCI)
  • Page Limitations
  • Past Performance
  • Past Performance Information Retrieval System (PPIRS)
  • Performance Based Standards
  • Permits and Responsibilities
  • Personal Conflicts of Interest
  • Post-Award Changes to the Contract
  • Post-Protest Re-Evaluations
  • Practicable Alternative
  • Pre-Award Protest
  • Pre-award vs. Post-award Requirements
  • Pre-Qualification of Offerors
  • Pre-Solicitation Notice
  • Prejudice
  • Price Calculation Error
  • Price Calculation Error
  • Price Evaluation
  • Price of FSS Task Order Quote
  • Price Realism
  • Price Reasonableness
  • Price Reduction
  • Procurement Announcement
  • Procurement Integrity
  • Product Testing
  • Proposal Acceptance Period
  • Proposal Detail
  • Proposal Evaluation
  • Proposal Extension
  • Proposal Standards
  • Proposals
  • Protest Terms of Solicitation
  • Protester Comments
  • Public-Private Competition
  • Randolph-Sheppard Act (RSA)
  • Rate Tenders
  • Re-Certification of Size Status
  • Reconsideration
  • Reevaluation
  • Reevaluation Standards
  • Reimbursed Attorney's Fees
  • Reimbursement of Protest Costs
  • Rejection of Proposal
  • Relaxation or Waiver of Requirement
  • Relevancy of Past Performance
  • Reliance on the Proposal
  • Remedies
  • Requirements Contract
  • Responsibility
  • Responsiveness
  • Restricted Competition
  • Resumes
  • Revision of Proposal
  • Revision of Proposals
  • Risk
  • Rule of Two
  • SBA Status protest
  • Scope of GAO Review
  • SDVOSB Set-Asides
  • Significant Issue Exception
  • Simplified Acquisition Procedures
  • Site Visit
  • Size Determination
  • Size Protest
  • Small Business Innovation Research (SBIR) Program
  • Small Business Set-Asides
  • Small Business Subcontracting Goals
  • Sole-Source Award
  • Solicitation Amendment
  • Solicitation Requirements
  • Source Approval
  • Source Selection Authority
  • Source Selection Decision
  • Source Selection Plan
  • Sources Sought Notice
  • Staffing Plan
  • State and Local Requirements
  • Status of Forces Agreement (SOFA)
  • Subcontract Protest
  • Subcontractor Experience
  • Suspension and Debarment
  • Taking Exception to RFP Requirements
  • Task Orders
  • Teaming Agreement
  • Technical Acceptability
  • Technical Evaluation
  • Technical Evaluation
  • Termination of Award
  • Terms of the Solicitation
  • Timeliness of Protest
  • Timely Filing
  • Timely Performance
  • Timely Proposal Submission
  • Trade Agreement Act
  • Unbalanced Pricing
  • Unduly Restrictive Terms
  • Unequal Access to Information
  • Unequal Treatment of Offerors
  • Uniform Time Act of 1996
  • Unstated Evaluation Criteria
  • Unusual and Compelling Urgency
  • Use of Appropriated Funds
  • Veterans First
  • VIP Database
  • VOSB Set Asides
  • Wage Determination

Get Help


Talk to an
attorney who
specializes
in bid protests:

+1-703-556-0411
Email

Keep up to date
on bid protest
decisions and
policies:

© 2023 Bid Protest Weekly

  • LinkedIn
  • Google +
  • Twitter
  • Facebook
  • Home
  • Bid Protest Ed Center
  • Blog
  • Topics
  • About Us
  • Contact Us
  • Home
  • Bid Protest Ed Center
    • WHAT is a bid protest?
    • WHO can file a bid protest
    • DO I need an Attorney?
    • WHY Should you file a bid protest?
    • WHEN Must you file a bid protest?
    • WHERE can you file a bid protest?
    • READING the RFP
  • Blog
  • Topics
  • About Us
  • Contact Us
  • LinkedIn
  • Google +
  • Twitter
  • Facebook

+1-703-556-0411