Millar Elevator Service Company--Costs, B-281334.3, August 23, 1999

B-281334.3 Aug 23, 1999 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Request for reimbursement of protest costs is denied where agency decides to take corrective action in response to protest but the issue on which the corrective action was based is not clearly meritorious. 1 day before Millar's comments on the agency report were due. We will recommend recovery of protest costs where. We conclude that it is not appropriate to recommend that the protester recover its protest costs. Since the RFP was silent as to their relative weights. The offerors reasonably assumed that the subfactors were of equal weight. The agency decided to take corrective action based on the failure to indicate in the RFP the relative weights of the subfactors under the drives factor. /2/ While agencies are required to advise offerors of the relative weights of significant subfactors. View Decision Matter of: Millar Elevator Service Company--Costs File: B-281334.3 Date: August 23, 1999 DIGEST Attorneys DECISION Millar Elevator Service Company requests that we recommend that it recover the costs, including attorneys' fees, incurred in connection with its protest challenging award of a contract for elevator services to Centric Elevator under request for proposals (RFP) No. 648-65-98, issued by the Department of Veterans Affairs (VA). We deny the request. Millar filed its protest challenging the award to Centric on March 31, 1999, arguing that VA failed to evaluate the proposals it received consistent with the evaluation criteria in the RFP; failed to conduct meaningful discussions; and, by awarding to Centric, procured services in excess of its needs. The agency filed its report responding to the protest on May 3, rebutting each of the arguments Millar made. Subsequently--and 1 day before Millar's comments on the agency report were due--VA advised that it would take corrective action. /1/ In light of the agency's decision, we dismissed Millar's protest as academic on June 1. Millar now requests that we recommend that VA reimburse it for its protest costs. When an agency takes corrective action prior to our issuing a decision on the merits, we may recommend that the protester recover the reasonable costs of filing and pursuing the protest. 4 C.F.R. Sec. 21.8(e) (1999). Under this provision, we will recommend recovery of protest costs where, based on the circumstances of the case, we conclude that the agency unduly delayed taking 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. For a protest to be clearly meritorious, the issue involved must not be a close question. J.F. Taylor, Inc.--Entitlement to Costs, B-266093.3, July 5, 1996, 96-2 CPD Para. 5 at 3. Rather, the record must establish that the agency prejudicially violated a procurement statute or regulation. Tri-Ark Indus., Inc.--Declaration of Entitlement, B-274450.2, Oct. 14, 1997, 97-2 CPD Para. 101 at 3. The fact that an agency decides to take corrective action does not establish that a statute or regulation clearly has been violated. J.F. Taylor, Inc.--Entitlement to Costs, supra. As explained below, based on the circumstances of the case here, we conclude that it is not appropriate to recommend that the protester recover its protest costs. Section 2.5.1 of the RFP listed seven subfactors under the most important technical evaluation factor, drives. Since the RFP was silent as to their relative weights, the offerors reasonably assumed that the subfactors were of equal weight. Foundation Health Fed. Servs., Inc.; Humana Military Healthcare Servs., Inc., B-278189.3, B-278189.4, Feb. 4, 1998, 98-2 CPD Para. 51 at 6. The record shows, however, that in performing the evaluation of offers, the agency actually assigned different weights to the subfactors. After filing its report on the protest, the agency decided to take corrective action based on the failure to indicate in the RFP the relative weights of the subfactors under the drives factor. /2/ While agencies are required to advise offerors of the relative weights of significant subfactors, Federal Acquisition Regulation Sec. 15.304(d), we would have sustained the protest on this ground only if it were evident that Millar had been prejudiced by the agency's failure to do so. See Lithos Restoration, Ltd., B-247003.2, Apr. 22, 1992, 92-1 CPD Para. 379 at 5-6 (prejudice is an essential element of a viable protest). The record shows that Millar and Centric received identical point scores in six of the seven technical subfactors at issue; given this equality, it is not clear that Millar was prejudiced by the agency's failure to advise offerors that the subfactors would not be equally weighted.