Link: GAO Opinion
Agency: Department of the Army
Disposition: Request denied.
Keywords: Corrective Action; Bid Protest Costs
General Counsel P.C. Highlight: GAO’s policy is to recommend reimbursement of protest costs if it sustains a protest or where the agency has unduly delayed in taking corrective action in the face of a clearly meritorious protest.
The Department of the Army issued a request for proposals (RFP) for portable fire extinguishers. The RFP provided for award of a fixed-price, indefinite-delivery/indefinite-quantity (ID/IQ) contract for a base year with three option years with a minimum order of 3,348 extinguishers and maximum of 67,875. Other than a first article test (FAT) requirement, price was the only factor identified. The Army received three proposals, with TAMOR’s being the lowest priced. After performing the pre-award survey to determine TAMOR’s responsibility, the Army made award to TAMOR.
In its initial protest, Metalcraft alleged that the Army was required to consider past performance and quality assurance systems, rather than base the contract award solely on price. Metalcraft also alleged that the Army impermissibly held discussions only with TAMOR. The Army filed its agency report responding to the protest allegations and Metalcraft filed its comments in response plus a supplemental protest that repeated the original allegations, but with more specificity. The GAO requested an additional agency report on the supplemental protest. The Army then advised GAO that, after reviewing the supplemental protest allegations, it had decided to take corrective action. GAO dismissed the initial and supplemental protests as being moot following the corrective action decision. Metalcraft then filed a request for reimbursement of costs for filing and pursuing its protest.
GAO’s policy is to recommend reimbursement of protest costs if it sustains a protest or if the GAO determines that the agency has unduly delayed taking corrective action in the face of a clearly meritorious protest. In this instance, as the record showed, the initial protest was not clearly meritorious, so GAO will not recommend reimbursement. Also, GAO concluded that since the Army took corrective action before the due date for its supplemental agency report, GAO considered the action prompt and does not recommend reimbursement of costs. The request is denied.