Link: GAO Decision
Protestor: The Ross Group Construction Corporation
Agency: Department of the Army
Disposition: Request Denied.
Request that an agency reimburse protester for proposal preparation costs is denied where the agency acted within its discretion to require re-certification of small business size status when requesting task order proposals under a small business multiple award task order contract.
General Counsel PC Highlight:
The Ross Group Construction Corporation requested that the GAO modify its earlier remedy and recommend that the agency reimburse The Ross Group for proposal preparation costs, after the GAO sustained its protest of the agency’s award to Blackhawk Ventures, LLC of a task order for the construction of a battle command training center at Fort Sam Houston, Texas. The GAO found that the agency had no reasonable basis for the selection of Blackhawk’s higher-priced proposal based on Blackhawk’s evaluated superiority in past performance, when Blackhawk failed to comply with the RFP’s stated requirements under the past performance factor. The GAO recommended that the agency consider its needs and, if appropriate, amend the solicitation and re-open the solicitation.
As part of its amended solicitation, the agency required that offerors recertify their small business status. The Ross Group argued that by requesting this recertification, the agency failed to fully implement the GAO’s recommendation that the procurement be reopened to allow all offerors to compete. Although a small business at the time it was awarded the MATOC contract, The Ross Group could no longer certify that status. The GAO declined to recommend reimbursement of The Ross Group’s proposal preparation costs, noting that the agency acted reasonably within its discretion in requiring recertification of small business size status from the offerors when it requested revised task order proposals under a MATOC that was restricted to small business concerns.
Although the GAO may recommend that a protester be reimbursed its proposal preparation costs when the GAO sustains its protest, it is not required to. It generally declines to recommend reimbursement where the agency implements the GAO’s recommendations, but takes other reasonable actions which result in the protestor being unable to compete in a new competition. Protestors make take the step to request reimbursement of proposal preparation costs, but should not expect the GAO to grant their request.