Agency: Department of Interior
Disposition: Request for Costs Granted
Decided: February 14, 2020
Keywords: Reimbursement of Protest Costs
General Counsel P.C. Highlight: If the agency delays taking corrective action in the face of a clearly meritorious protest, causing the protester to make further use of the protest process in order to obtain relief, GAO may recommend reimbursement of protest costs; even if the agency eventually takes corrective action.
Summary of Facts
Spry Methods, Inc. requests that GAO recommend that it be reimbursed the costs of filing and pursuing its protest challenging the issuance of a task order to Customer Value Partners, Inc. (CVP) under RFQ No. 140D0419Q0011, issued by the Department of the Interior (DOI)
for information management and assurance program support services.
The RFQ was first issued on October 15, 2018 and established that the task order award would be made on a best-value tradeoff basis between the equal evaluation factors of technical approach and price. Twenty vendors, including Spry and CVP, submitted quotations. On April 18, the contracting officer notified CVP of weaknesses in its proposal and offering CVP an opportunity to submit a revised technical quote. CVP revised its response to address the identified weaknesses. No other vendor was contacted or allowed to submit a revised quotation. CVP was awarded the task order, and Spry filed a protest.
On August 29, DOI filed its agency report and argued that the evaluation of vendors’ quotations and resulting award decision was reasonable and consistent with the stated evaluation criteria. On September 9, Spry filed its comments on the agency report. On October 9, DOI submitted a letter to GAO, stating that after reviewing the record, it concluded that “to ensure fairness to all [vendors], corrective action is warranted.” DOI noted that it “is unable to support [the] rationale in the award summary where only one [vendor] was given the opportunity to engage in discussions/negotiations with the Government.” GAO dismissed the protest in response to DOI’s corrective action.
Request for Costs
Spry requests that GAO recommend that the agency reimburse its costs of filing and pursuing its protest. Spry argues that DOI unduly delayed taking corrective action, as evidenced by its failure to do so until after filing of the agency report and submission of comments, and that its protest of the agency’s disparate treatment/unequal discussions was clearly meritorious. DOI argues that Spry’s protest of unequal discussions was not clearly meritorious, and therefore Spry is not entitled to reimbursement of protest costs.
GAO explained that even when a contracting agency takes corrective action in response to a protest, it may recommend reimbursement of protest costs, including reasonable attorneys’ fees. GAO will make this recommendation when, “we determine that the agency unduly
delayed taking corrective action in the face of a clearly meritorious protest (i.e., not a
close call), thereby causing the protester to expend unnecessary time and resources to
make further use of the protest process in order to obtain relief.” A protest is considered “clearly meritorious” where a reasonable agency inquiry into the protester’s allegations would reveal facts showing the absence of a defensible legal position.
DOI argues the exchanges with CVP did not amount to discussions, or even if they were discussions, that the agency’s actions were “fair and equitable,” and without prejudice to Spry.
However, GAO found that the record demonstrates that DOI’s exchange with CVP amounted to discussions, stating that “discussions occur when an agency communicates with a vendor for the purpose of obtaining information essential to determine the acceptability of a quotation, or provides the vendor with an opportunity to revise or modify its quotation in some material respect.” Since here, the contracting officer informed CVP of various weaknesses in its technical quotation and offered CVP an opportunity to submit a revised quotation, DOI had discussions with CVP. Additionally, since DOI did not conduct discussions or exchanges with any other vendor, GAO found that DOI’s actions were unequal and favored one vendor over another. Moreover, DOI admitted “the agency is unable to support [the] rationale in the
award summary where only one [vendor] was given the opportunity to engage in
discussions/negotiations with the Government.” Given DOI’s admission that it conducted unequal discussions, GAO concluded that Spry’s protest was clearly meritorious.
GAO also found that Spry’s challenge of the unequal discussions was part of the larger issue of DOI’s unreasonable technical evaluation. Therefore, Spry is entitled to the reimbursement of its protest costs for each ground raised.
GAO recommend that Spry be reimbursed the reasonable costs of filing and pursuing its protest, including attorneys’ fees, including those incurred for requesting a recommendation for costs.