Pemco Aeroplex, Inc. --Reconsideration and Costs, B-275587.5;

Pemco Aeroplex, Inc. --Reconsideration and Costs, B-275587.5; BNUMBER: B-275587.5; B-275587.6 DATE: October 14, 1997 TITLE: Pemco Aeroplex, Inc. --Reconsideration and Costs, B-275587.5; B-275587.6, October 14, 1997 ********************************************************************** Matter of:Pemco Aeroplex, Inc.--Reconsideration and Costs File: B-275587.5; B-275587.6 Date:October 14, 1997 Kevin P. Connelly, Esq., and G. Matthew Koehl, Esq., Seyfarth, Shaw, Fairweather & Geraldson, for the protester. Thomas G. Jeter, Esq., and Suzanne L. Karbarz, Esq., McKenna & Cuneo, for Aero Corporation, an intervenor. Gregory H. Petkoff, Esq., and John E. Lariccia, Esq., Department of the Air Force, for the agency. John Van Schaik, Esq., and Michael Golden, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST General Accounting Office recommends that protester be reimbursed the costs of filing and pursuing protest, notwithstanding the agency's promise of corrective action in response to the protest and the dismissal of the protest as academic, where, without explanation, after more than 4 months the agency has apparently not taken the first steps to implement the promised corrective action. DECISION Pemco Aeroplex, Inc. requests reconsideration of our dismissal of its protest concerning the award of a contract to Aero Corporation under request for proposals (RFP) No. F09603-95-R-13032, issued by the Air Force for programmed depot level maintenance (PDM) of the C-130 aircraft. We dismissed that protest based on the Air Force's promise of corrective action; Pemco now argues that we should "reinstate" that protest as a result of the Air Force's failure to promptly take the promised corrective action. Alternatively, Pemco argues that we should recommend that the firm be reimbursed its costs of filing its protest, including attorneys' fees. Pemco also protests that the Air Force has improperly canceled the solicitation and challenges the agency's decision to perform the work covered by the solicitation at the Warner-Robins Air Logistics Center using government personnel. We recommend that Pemco be reimbursed the costs of filing and pursuing its protest, including attorneys' fees, and the costs of filing and pursuing this action. We deny Pemco's protest that the RFP has been canceled and dismiss as premature Pemco's contention concerning the Air Force's decision to perform PDM work on the C-130 aircraft in-house. Pemco initially protested to this Office on April 28, 1997. In that protest, and a supplemental protest filed on May 2, Pemco, the incumbent contractor, argued that the Air Force had improperly evaluated proposals and improperly selected Aero for award. By letter of May 19, the Air Force requested that we dismiss Pemco's protest. The Air Force explained that it had determined that the evaluation of the offerors' past performance appeared to be inadequate. As a result, the Air Force explained that it would take corrective action, including revising the solicitation, conducting discussions with offerors, soliciting best and final offers (BAFO), reevaluating proposals, and making a new source selection decision. By decision of May 19, we dismissed the protest, since the Air Force's corrective action rendered the protest academic. Also on May 19, in a letter to the Commander of the Air Force Materiel Command (AFMC), the Air Force's Principal Deputy Assistant Secretary (Acquisition and Management) directed the agency to take the corrective action described to this Office.[1] That letter provided the following additional direction: "[I]n view of emerging changes in depot workloads[,] re-evaluate the C-130 PDM requirement." In a May 28 memorandum, the Commander of AFMC explained that the agency had developed a timetable for taking corrective action to resolicit and make a new award. In addition, that memorandum stated: An aggressive schedule to accomplish those tasks would not result in new awards until 6 Oct 1997, with subsequent induction of the first aircraft on 5 Jan 1998. Thus, it becomes obvious that we will not be able to accomplish any of the scheduled FY 97 PDM . . . under contract. . . . . . . Therefore, [Warner-Robins] plans to organically perform the FY 97 workload and the first two aircraft from the FY 98 workload. In order to perform the work organically, we need to be able to release the customer money which is currently obligated on the [Aero contract]. I have been advised by my Legal staff that due to requirements of the Anti-Deficiency Act, the only proper way to deobligate those funds which are currently obligated against firm FY 97 contract requirements is to terminate the [Aero contract] for the convenience of the Government.