Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Thursday, August 29, 2013, 4:00pm EST
Coulson Aviation (USA) Inc.; 10 Tanker Air Carrier, LLC—Costs, B-406920.6, B-406920.7, August 22, 2013
There are several benefits that an unsuccessful offeror may achieve by virtue of filing a bid protest. The most obvious is a determination that it should have been chosen as the awardee. Absent that ideal scenario, it is also possible that a protest will cause the agency to reevaluate proposals and make a new source selection decision, basically giving the protester one more opportunity to win. One more benefit that may be available to a protester, is the recovery of its costs of filing and pursuing the bid protest.
Federal regulations provide for the recovery of protest costs in certain cases. The idea is to incentivize the procuring agency to fix obvious mistakes in the procurement process early on before significant time and expense is spent addressing the issue. Thus, when a protest is filed raising a clearly meritorious issue, i.e., where a reasonable inquiry would have demonstrated to the agency it did not have a defensible legal position, it is in the agency’s best interest to take corrective action rather than put up a fight. In that case, while the protester has achieved some form of relief, it must bear the costs of filing the protest.
However, if an agency does not take corrective action in the face of a clearly meritorious protest, and instead attempts to defend its position, it may be liable for covering the protester’s costs of filing and pursuing the protest. If GAO finds that in failing to take corrective action, or unnecessarily delaying doing so, the agency caused the protester to expend unnecessary time and expense in pursuing the protest, it can recommend that the agency reimburse the protester for reasonable expenses.
This was the case in a recent bid protest decision released by GAO—Coulson Aviation (USA) Inc.; 10 Tanker Air Carrier, LLC–Costs. In this case the U.S. Forest Service issued a solicitation as a small business set-aside for fixed-wing airtanker services. The solicitation contemplated award of multiple fixed-price contracts under seven different contract line items. During the evaluation process, the agency issued questions to the offerors. Despite characterizing these questions as merely clarifications, the agency asked rather substantive questions of several of the offerors, which resulted in significant revisions to those offerors’ proposals.
Two unsuccessful offerors filed protests, challenging the agency’s evaluation and source selection decision. However, after receiving the agency report, and learning of the substantive questions posed to only some of the offerors, the protesters filed supplemental protests. While only one of the protesters actually characterized the agency’s communications as discussions, arguing that they were not meaningful, both protesters challenged the agency’s communications with the offerors, and allowing some offerors to revise their proposals.
The agency defended its evaluation and source selection decision, and filed a supplemental agency report. During a hearing held to address the communication issue, GAO informed the agency that it appeared the agency’s communications with the offerors were improper. The next day, the agency took corrective action and reopened the competition. The protesters both filed a request for reimbursement of protest costs.
GAO determined that the agency waited an unnecessary amount of time to take corrective action in response to the protest. The discussions issue was raised in the supplemental protests, but rather than take corrective action at that point, the agency instead defended its position through a supplemental agency report, comments filed by the protesters, and a hearing. GAO found this to be unnecessary, and recommended that both protesters be reimbursed for their costs of filing and pursuing the protests.
Where a protester makes several challenges to a procurement decision, and one is found to be clearly meritorious, GAO can limit recovery of protest costs to only that specific argument. However, in this case, GAO found that the protesters’ arguments in the protest, challenging the agency’s evaluation and source selection decision, involved the same set of core facts as the argument relating to failure to conduct equal and meaningful discussions. Thus, while the protest ground leading to the corrective action was not raised until the supplemental protest, GAO granted the protesters’ request for reimbursement of all protest costs going back to the original protest (although one protester only submitted offered pricing on one of the seven CLINs, and its reimbursement was thus limited to arguments specific to that CLIN).