Tri-Ark Industries, Inc.--Declaration of Entitlement, B-

B-274450.2 Oct 14, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Protest that procurement was improperly accepted into the Small Business Administration's (SBA) 8(a) program (because the SBA had not performed the required analysis of impact on small business concerns) was timely filed prior to the closing time for receipt of proposals under the competitive 8(a) solicitation. Notwithstanding that the SBA had advised the protester prior to the solicitation's issuance that it believed that there was no adverse impact. Protester is entitled to recover the costs of filing and pursuing its protest of the General Services Administration's (GSA) decision to acquire janitorial services under the Small Business Administration's (SBA) section 8(a) program. View Decision Matter of: Tri-Ark Industries, Inc.--Declaration of Entitlement File: B-274450.2 Date: October 14, 1997 DIGEST Attorneys DECISION Tri-Ark Industries, Inc. requests that we recommend that it be reimbursed the costs of filing and pursuing its protest of the General Services Administration's (GSA) decision to acquire janitorial and other services for the Metcalfe Federal Building in Chicago, Illinois, under the Small Business Administration's (SBA) section 8(a) program. We recommend that Tri-Ark be reimbursed the reasonable costs of filing and pursuing its protest, including reasonable attorneys' fees. Section 8(a) of the Small Business Act authorizes the SBA to enter into contracts with government agencies and to arrange for performance through subcontracts with socially and economically disadvantaged small business concerns. 15 U.S.C. Sec. 637(a) (1994). Under its implementing regulations, the SBA may not accept any requirement into the 8(a) program if doing so "would have an adverse impact on other small business programs or on an individual small business." 13 C.F.R. Sec. 124.309(c) (1997). SBA's regulations require it to execute a written impact statement before accepting a requirement into the 8(a) program. Id.; Atlantic Coast Contracting, Inc., B-260686, July 13, 1995, 95-2 CPD Para. 19 at 3. Tri-Ark, a small business concern which was awarded a contract by GSA in April 1993 to provide janitorial and other services at the Metcalfe Building, protested GSA's decision to acquire the services under the section 8(a) program to our Office on September 3, 1996. Tri-Ark argued in its protest that the government had failed to perform the required adverse impact determination, with respect to either Tri-Ark or other small businesses. In accordance with our requests, GSA and the SBA filed reports with our Office in response to the protest on October 15 and October 16, respectively, and the protester timely filed its comments on the reports with our Office on October 28. Because neither agency report contained a written impact statement, our Office requested, by teleconference with attorneys for GSA, the SBA, and the protester, that either agency furnish a copy of the statement to our Office and the protester by November 1. During this teleconference it was also agreed that the agencies could submit comments on the statement by November 5, and the protester could submit comments by November 7. On October 31, our Office received a document from the SBA, but our review indicated that the document was not an impact statement. When our Office contacted the SBA on November 1, the SBA advised that it could not provide a statement because no impact analysis had been performed. On November 4, GSA notified our Office that GSA had determined that an adverse impact analysis be performed for both Tri-Ark and other small business concerns prior to proceeding with the Metcalfe Building procurement as an 8(a) set aside. As provided in applicable Federal law and regulation, the SBA will perform the adverse impact analysis. Upon receipt of this letter, our Office dismissed Tri-Ark's protest as academic, and on November 7, the protester filed this request that we find that it should be reimbursed the reasonable costs of filing and pursuing its protest, including reasonable attorneys' fees. Our Bid Protest Regulations provide that where the contracting agency decides to take corrective action in response to a protest, we may recommend that the protester be reimbursed the costs of filing and pursuing its protest, including reasonable attorneys' fees. 4 C.F.R. Sec. 21.8(e) (1997). This does not mean that costs should be reimbursed in every case in which an agency decides to take corrective action; rather, a protester should be reimbursed its costs where an agency unduly delayed its decision to take corrective action in the face of a clearly meritorious protest. Griner's-A-One Pipeline Servs., Inc.--Entitlement to Costs, B-255078.3, July 22, 1994, 94-2 CPD Para. 41 at 5; LB&M Assocs., Inc.,- -Entitlement to Costs, B-256053.4, Oct. 12, 1994, 94-2 CPD Para. 135 at 4.