Link: GAO Decision
Protestor: Split Rock, Inc.
Agency: Defense Information Systems Agency
Disposition: Request for Reimbursement Denied.
Request for reimbursement of protest costs is denied where record fails to establish that the agency unduly delayed taking corrective action in the face of clearly meritorious protest.
General Counsel PC Highlight:
Split Rock, Inc. (SRI) requested that the GAO recommend that it be reimbursed for the costs of its protest of the terms of an RFP for security information manager engineering support services. SRI argued that the RFP, which was issued as a small business set-aside, should instead have been set aside for SDVOSBs. The SBA, in commenting on the protest, first responded that the agency was not required to conduct market research to determine whether two or more SDVOSBs could perform the requirement prior to setting it aside for small businesses. The GAO pointed out that the agency and the SBA were relying on an out-of-date version of the SBA’s regulations. Beginning one month prior to the issuance of the RFP, agencies were required to consider SDVOSB or other specific set-aside programs prior to proceeding with a small business set-aside. In response, the agency elected to take corrective action and perform the applicable market research.
The GAO disagreed with SRI that the agency unduly delayed in taking corrective action. It pointed out that SRI had not argued that the agency had acted improperly under the SBA’s new regulation; rather SRI had itself relied on the old regulation. Noting that the agency acted promptly after receiving the SBA’s interpretation of the new regulation, the GAO concluded that reimbursement was not appropriate in this case.
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.