Link: GAO Opinion
Agency: Department of the Army
Disposition: Request denied.
Where agency took corrective action following submission of an agency report responding to the protests, request that Government Accountability Office recommend reimbursement of protest costs is denied where protest grounds, though potentially meritorious, were not clearly meritorious–that is, the protest allegations presented close questions regarding their merit.
General Counsel P.C. Highlight:
Triple Canopy submitted requests for GAO’s recommendation that the agency reimburse Triple Canopy’s costs of filing and pursuing the supplemental protests. Triple Canopy asserts that the agency unduly delayed taking corrective action and that its supplemental protests were clearly meritorious. Under the Competition in Contracting Act of 1984 (CICA), GAO is authorized to recommend reimbursement of protest costs only where GAO finds that an agency’s actions violated a procurement statute or regulation. GAO’s Bid Protest Regulations further provide that where the contracting agency decides to take corrective action in response to a protest, it may recommend reimbursement of protest costs, including reasonable attorneys’ fees. GAO’s Regulations do not contemplate a recommendation for reimbursement of protest costs in every case in which an agency takes corrective action, but rather only where an agency unduly delays taking corrective action in the face of a clearly meritorious protest. Thus, as a prerequisite to GAO recommending the reimbursement of costs where a protest has been settled by corrective action, not only must the protest have been meritorious, but it also must have been clearly meritorious, that is, not a close question. A protest is clearly meritorious where a reasonable agency inquiry into the protester’s allegations would reveal facts showing the absence of a defensible legal position. The mere fact that an agency decides to take corrective action does not necessarily establish the absence of a defensible legal position, nor that a statute or regulation has clearly been violated.
Here, based on the record presented, along with the discussions conducted and clarifications provided during the two GAO conferences, GAO cannot conclude that the supplemental protests were clearly meritorious. Among other things, GAO agrees that the solicitation was ambiguous regarding the personnel requirements to which offerors were required to commit. Further, in responding to the supplemental protests, the agency maintained, with some basis, that, even accepting the protester’s interpretation of the solicitations’ requirements, Sabre’s proposals reflected an intent to comply with those requirements and that, even increasing Sabre’s prices to reflect such intent, Sabre’s proposed prices were still lower than those proposed by Triple Canopy; thus, the agency argued that there was no prejudice to Triple Canopy. In determining whether to recommend cost reimbursement, GAO need not definitively resolve whether the protests were meritorious; rather, it must determine whether they were clearly meritorious–that is, that they did not present close questions for which there was no defensible legal position. Based on the record here, GAO rejects Triple Canopy’s assertion that its protests were clearly meritorious; rather, GAO acknowledges that, even resolving doubts in Triple Canopy’s favor, the issues presented were, indeed, close questions. The request is denied.