Link: GAO Opinion
Agency: Department of the Army
Disposition: Request denied.
Request for recommendation that agency reimburse protester its costs of filing and pursuing protests is denied where the agency did not unduly delay implementing promised corrective action and the record does not establish that the protest grounds were 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 an agency’s action violated a procurement statute or regulation. Where an agency takes corrective action in response to a protest, GAO may recommend that the protester recover the reasonable costs of filing and pursuing the protest, where GAO concludes that the agency unduly delayed taking corrective action in the face of a clearly meritorious protest. GAO has recognized that the mere promise of corrective action, without reasonably prompt implementation, has the obvious effect of circumventing the goal of the bid protest system for the economic and expeditious resolution of bid protests. Thus, where an agency fails to implement the promised corrective action, or implements corrective action that fails to address a meritorious issue raised in the protest that prompted the corrective action, such that the protester is put to the expense of subsequently protesting the very same procurement deficiency, the agency’s action has precluded the timely, economical resolution of the protest.
Here, however, GAO finds that the agency promptly instituted its promised corrective action, and thus this is not a situation where the agency either failed to implement the corrective action, or unduly delayed the corrective action, such that the protester was required to file a second protest. In this regard, the Army, as promised, reviewed its determinations regarding the SDVOSB set-aside, bundling, and the conflict of interest, and subsequently documented this review. While the protester disagrees with the Army’s conclusions, this does not demonstrate that the Army failed to implement its promised corrective action. Moreover, GAO finds no basis in the record here to conclude that Taylor’s protest grounds were clearly meritorious. A prerequisite to GAO’s recommendation that costs be reimbursed is that the protest must not only have been meritorious but must also have been clearly meritorious, i.e., not a close question. Here, further record develop would be required to determine whether the requirements had changed such that a set aside was not required (as maintained by the CO), whether the agency had reasonably decided to have “one point of contact” such that there was no improper bundling, and whether the agency had properly addressed the allegation of bias. In short, because GAO finds that the agency did not unduly delay implementing its promised corrective action and that Taylor’s prior protest grounds were not clearly meritorious, GAO concludes that there is no basis for recommending reimbursement of Taylor’s protest costs. The request is denied.