Link: GAO Opinion
Agency: Department of the Army
Disposition: Request granted.
Agency’s contention that protester was not prejudiced by solicitation defect (and protest thus was not clearly meritorious for purposes of determining whether reimbursement of protest costs is appropriate) because protester failed to submit a compliant proposal even after the solicitation was amended to address the protested defect is without merit since prejudice in the context of a protest alleging a solicitation defect is not based on post-protest developments, but rather on whether the alleged defect affected the protester’s ability to compete at the time the protest was pending.
General Counsel P.C. Highlight:
On August 8, Pond submitted a revised proposal that removed its proposed training and administrative services provider from the joint venture. However, Pond failed to submit with that proposal the Article 134 licenses for the three security firms remaining in the joint venture. Accordingly, the agency did not consider Pond’s proposal, and award was made to another firm. Pond filed a protest of that award decision with GAO, which was denied. Pond now requests the costs of filing and pursuing its initial protest of the terms of the RFP. GAO states that where an agency takes corrective action in response to a protest, GAO may recommend reimbursement of protest costs where, based on the circumstances of the case, it 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. With respect to the promptness of the agency’s corrective action under the circumstances, GAO reviews the record to determine whether the agency took appropriate and timely steps to investigate and resolve the impropriety. GAO generally does not consider corrective action to be prompt if it is taken after the due date for the agency report responding to the protest.
Here, the agency argues that Pond should not be reimbursed its costs because its protest was not clearly meritorious. A clearly meritorious protest is one that clearly would have been successful–that is, it must involve a matter over which GAO has jurisdiction and be filed by an interested party in a timely manner and otherwise comply with the requirements of the Bid Protest Regulations, and the record must establish that the agency prejudicially violated a procurement statute or regulation. The agency argues that Pond’s protest was not clearly meritorious because Pond was not prejudiced by the ambiguity in the RFP, since, when subsequently given the opportunity to do so, Pond failed to provide the Article 134 licenses with its revised proposal. GAO disagrees.
The question of prejudice in the context of a protest challenging the terms of a solicitation concerns whether the alleged defect affects the protester’s ability to compete under the solicitation. Prejudice thus is measured in light of the circumstances while the protest is pending, not, as the agency argues, by post-protest developments. Here, at the time the initial protest was filed and while it was pending, the RFP’s failure to clearly state the agency’s requirements with regard to the Italian licensing requirements prejudiced Pond’s ability to prepare an offer on a common basis with other potential offerors, in response to the agency’s actual needs. The fact that Pond subsequently did not submit the required licenses, even after the RFP was amended to clarify the agency’s requirements, is not relevant to determining the question of prejudice in the context of the initial protest here.
In sum, GAO concludes that a reasonable inquiry by the agency into Pond’s initial protest would have revealed that the RFP was unclear regarding the requirements for the Chamber of Commerce Certificate and Article 134 license and, thus, by failing to act before the due date for the agency report, the agency unduly delayed taking corrective action. Accordingly, GAO recommends that the agency reimburse Pond for the reasonable costs of filing and pursuing its initial protest of the terms of the RFP. Pond should submit its claim for costs, detailing and certifying the time expended and costs incurred, directly to the Army within 60 days of receipt of this decision. The request is granted.