Link: GAO Decision
Protestor: LGS Innovations LLC
Agency: Department of the Army
Disposition: Request for Reimbursement Denied.
Reimbursement of protest costs based on agency corrective action is not warranted where the protest was not clearly meritorious.
General Counsel PC Highlight:
LGS Innovations LLC requested that the GAO recommend that it be reimbursed for the costs of filing and pursuing its protest against the issuance of a delivery order to AT&T Government Solutions for infrastructure modernization at the Wiesbaden, Germany Command Battle Center (CBC). LGS initially objected to the technical evaluation, arguing that it included unstated evaluation preference for AT&T’s technical solution, that the best value tradeoff determination was flawed, and that the agency failed to conduct meaningful or equal discussions related to the “preferred” technical solution. In responding to the agency report, LGS added the allegation that evaluators had assigned two strengths to AT&T’s proposal relating to features of its technical solution while assigning no comparable strengths to LGS’s proposal of the same or better features. After the GAO requested that the agency furnish a supplemental report, the agency indicated that it would take corrective action.
The GAO first declined to recommend reimbursement for the costs of the supplemental protesting, noting that the corrective action was taken prior to the due date of the supplemental agency report and was therefore considered prompt. The GAO then held that the initial protest was not clearly meritorious, pointing out that the agency’s corrective action was in response to the supplemental protest. In taking corrective action, the agency did not concede that its original evaluation was based on a preference for AT&T’s technical solution. The GAO stated that the agency’s recognition of technical advantages associated with a more compatible solution did not constitute an improper unstated technical preference, and that the protest was therefore not clearly meritorious.
Protestors must remember that corrective action by the agency will not always lead to a valid claim for reimbursement for the costs of pursuing a protest. The GAO will only recommend reimbursement if the agency unduly delays taking corrective action in the face of a clearly meritorious protest. No matter what the outcome, however, protestors should always maintain detailed records of the costs of the protest, broken down by individual issues pursued, to be prepared if the protestor does seek reimbursement.