Link: GAO Opinion
Agency: Department of Labor
Disposition: Request denied.
Keywords: Protest Costs
General Counsel P.C. Highlight: GAO will recommend reimbursement of protest costs if it sustains a protest, or where the agency unduly delays taking corrective action in the face of a clearly meritorious protest. A protest is considered clearly meritorious when a reasonable agency inquiry into the protest’s allegations would show that the agency lacked a defensible legal position, that is, the protest does not involve a close question.
Waterfront Technologies, Inc. requests that GAO recommend reimbursement of Waterfront’s protest costs associated with three protests it filed challenging the award of a contract by the Department of Labor (DOL), under a request for proposals (RFP) for Enterprise IT Services to support the Office of Foreign Labor Certification system.
The RFP was issued as a total small business set-aside for section 8(a) firms and was amended five times. The RFP required offerors to hold “an interim secret facility clearance prior to the RFP closing date.” Waterfront’s proposal was rejected as “non-responsive” because it did not include an interim secret facility clearance and did not include the requested pricing information.
Within 30 days of the initial protest, prior to submitting an agency report, GAO’s representative conducted an outcome prediction alternative dispute resolution (ADR) conference. The representative stated that lack of a facility clearance was a matter of contractor responsibility rather than “proposal responsiveness” or technical acceptability and predicted that Waterfront’s protest would be sustained. GAO noted that determination of the responsibility of a small business lies not with the contracting officer but with the Small Business Administration (SBA). DOL agreed to take corrective action and to submit the matter of Waterfront’s responsibility to SBA for a possible certificate of competency (COC).
Waterfront filed a second protest that the DOL had not implemented its corrective action since the COC was still pending at the SBA. The GAO dismissed this protest as premature. Shortly after, the SBA refused to consider Waterfront’s responsiveness because “Waterfront is not in-line for the award if there was a positive decision after the COC review,” as required by the SBA regulations. Waterfront then filed its third protest alleging that DOL failed to “effectuate” its promised corrective action because the SBA refused to consider Waterfront for a COC. DOL notified GAO that it would take corrective action in response to a protest filed by another offeror. GAO dismissed Waterfront’s protest because DOL’s proposed corrective action rendered their protest academic. Following the corrective action and dismissal, Waterfront sought an award to reimburse its protest costs.
GAO will recommend reimbursement of protest costs if it sustains a protest, or where the agency unduly delays taking corrective action in the face of a clearly meritorious protest. A protest is considered clearly meritorious when a reasonable agency inquiry into the protest’s allegations would show that the agency lacked a defensible legal position, that is, the protest does not involve a close question.
Here, DOL did not unduly delay taking corrective action on Waterfront’s first two protests since the corrective action was taken prior to submission of the agency reports on those protests. With regard to the third and final protest, DOL took correction action eight days after it submitted its report. GAO finds no reason to believe that any of the grounds asserted in the third protest were “clearly” meritorious and GAO has no basis to find that Waterfront’s allegations regarding its technical and price evaluation were “clearly meritorious.” The request for reimbursement of protest costs is denied.