Bannum, Inc., B-291503.4, March 17, 2003

B-291503.4 Apr 10, 2003 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Request for recommendation for reimbursement of costs for filing and pursuing protest is denied. Where the record does not establish that protest was clearly meritorious. Offerors were to provide separate pricing for DVD and depot delivery. Although some issues were resolved to East Penn's satisfaction. Others were not. We decided that a hearing was necessary to complete the record in this protest. A pre-hearing conference was conducted to identify the hearing issues. Of the issues. /1/ Further negotiation assistance ADR was conducted on February 5. No hearing was held. East Penn's protest was dismissed by our Office as academic on February 11. East Penn's protest was clearly meritorious.". View Decision East Penn Manufacturing Company, Inc.--Costs, B-291503.4, April 10, 2003 DIGEST Attorneys DECISION East Penn Manufacturing Company, Inc. requests that we recommend that it be reimbursed the costs of filing and pursuing its protest against the terms of request for proposals (RFP) No. SPO430-02-R-4198, issued by the Defense Logistics Agency, Defense Supply Center Richmond, for batteries. We deny the request. The RFP provided for the award of one or more indefinite-quantity contracts for delivery of lead-acid, dry charged batteries to depot stock locations and for Direct Vendor Delivery (DVD). Offerors were to provide separate pricing for DVD and depot delivery. East Penn had numerous dialogues with the agency regarding solicitation provisions that East Penn believed to be ambiguous or unduly restrictive of competition. Although some issues were resolved to East Penn's satisfaction, others were not, and East Penn filed a protest (B-291503) with our Office on October 8, 2002. On November 4, prior to submission of a report on the protest, the agency issued amendment No. 3 revising the evaluation scheme. We dismissed East Penn's protest as academic on November 15. East Penn then protested the terms of amendment No. 3, complaining that the amendment did not resolve the protester's concerns with the RFP's quantity estimates and delivery terms and that the amendment failed to disclose critical information necessary for East Penn to submit a competitive offer. After submission of the agency's report and protester's comments, we decided that a hearing was necessary to complete the record in this protest. On January 31, 2003, a pre-hearing conference was conducted to identify the hearing issues. As part of the pre-hearing conference, the GAO attorney provided "negotiation assistance" alternate dispute resolution (ADR) to facilitate the possible resolution of any, or all, of the issues. /1/ Further negotiation assistance ADR was conducted on February 5. As a result of the ADR discussions, the agency provided additional information to all offerors that apparently addressed East Penn's concerns, and the parties resolved the protest issues to their mutual satisfaction. No hearing was held, and East Penn's protest was dismissed by our Office as academic on February 11. East Penn requests that we recommend that it be reimbursed the reasonable cost of filing and pursuing its protests, including reasonable attorneys' fees. Specifically, East Penn contends that "[g]iven GAO's determination to conduct a hearing and ADR conference and the agency's subsequent determination to take corrective action, East Penn's protest was clearly meritorious." Protester's Request for Recommendation of Entitlement, Feb. 14, 2003, at 3. Under the Competition in Contracting Act of 1984, our Office may recommend that protest costs be reimbursed only where we find that an agency's action violated a procurement statute or regulation. 31 U.S.C. Sec. 3554 (c)(1) (2000). 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) (2003). This does not mean that costs should be reimbursed in every case in which an agency decides to take corrective action; rather, a protest 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. Thus, as a prerequisite to our recommending that costs be reimbursed where a protest has been settled by corrective action, not only must the protest have been meritorious, but it also must have been clearly meritorious, i.e., not a close question. J.F. Taylor, Inc.--Entitlement to Costs, B-266039.3, July 5, 1996, 96-2 CPD Para. 5 at 3; Baxter Healthcare Corp.--Entitlement to Costs, B-259811.3, Oct. 16, 1995, 95-2 CPE Para. 174 at 4-5; GVC Cos.--Entitlement to Costs, B-254670.4, May 3, 1994, 94-1 CPD Sec.