Link: GAO Opinion
Agency: Department of the Army
Disposition: Request denied.
Request for recommendation that protest costs be reimbursed is denied where record establishes neither that action rendering the protest academic was taken in response to the protest nor that protest was clearly meritorious.
General Counsel P.C. Highlight:
Under the Competition in Contracting Act of 1984, GAO may recommend that protest costs be reimbursed where GAO finds that the agency’s action violated a procurement statute or regulation. GAO’s Bid Protest Regulations provide that where the contracting agency decides to take corrective action in response to a protest, GAO may recommend that the protester be reimbursed the costs of filing and pursuing its protest, including reasonable attorneys’ fees. This does not mean that GAO will recommend that costs be reimbursed in every case in which an agency takes action that renders a protest academic; rather, GAO will recommend that a protester be reimbursed its costs only where the record establishes that (1) the agency action that rendered the protest academic was taken in response to the protest, and (2) the agency unduly delayed taking the action in the face of a clearly meritorious protest. GAO considers a protest to be clearly meritorious when a reasonable agency inquiry into the protester’s allegations would show that the agency lacked a defensible legal position.
Here, it is not clear from the record that the agency decided to cancel the RFP in response to RANA’s protest. While GAO recognizes that the contracting officer represented in the agency’s request for dismissal of the underlying protest that the solicitation was being cancelled due to RANA’s protest, which suggests that there was a link between the protest and the decision to cancel, the agency explained in its response to the protester’s request for costs that it did not decide to cancel in response to RANA’s protest; rather, the agency maintained that it decided to take this action only after learning that the awardee, as well as offerors next in line for award, were unwilling or unable to commit to the prices originally offered in their proposals. Whether the agency decision to cancel was a response to RANA’s protest is not critical to the outcome of GAO’s decision here, however, because in any event GAO is not persuaded that RANA’s protest was clearly meritorious. RANA argues that by submitting its prices on the price schedule furnished in the RFP and acknowledging amendment No. 0001, it committed itself to deliver the items identified in the amendment for the prices that it entered on the schedule, and that its protest objecting to the rejection of its proposal as technically unacceptable was thus clearly meritorious. GAO disagrees. In GAO’s view, it was unclear from RANA’s proposal whether it was offering to furnish the items described in the price schedule or the items described in the amendment. Faced with an ambiguity as to what the protester was proposing to furnish (and thus an ambiguity as to whether it was proposing to furnish items meeting the requirements of the solicitation, as amended), GAO thinks that the agency’s rejection of RANA’s proposal was reasonable. The request for a recommendation that the agency reimburse RANA’s protest costs is denied.