Shindong-A Express Tour Company, Ltd.--Costs, B-292459.3, March 25, 2004

B-292459.3 Mar 25, 2004 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Protester's request for a recommendation that it be reimbursed the costs of filing and pursuing its protest is granted where the record shows that the initial protest filing was sufficient to put the agency on notice that the awardee's proposal was unacceptable under the solicitation's stated evaluation scheme yet the agency unduly delayed taking corrective action until after submission of the agency report and the protester's comments. The contract was awarded pursuant to request for proposals (RFP) No. The protest was filed on June 19. Technical proposals were to be evaluated under the following five evaluation factors: quality control plan. These factors were to be rated on a pass/fail basis as either acceptable or unacceptable. View Decision Shindong-A Express Tour Company, Ltd.--Costs, B-292459.3, March 25, 2004 DIGEST Attorneys DECISION Shindong-A Express Tour Company, Ltd. requests that we recommend that it be reimbursed the costs of filing and pursuing its protest challenging the Department of the Army's award of a contract to New Kyungdong Tour Co., Ltd. for fare-free mass transit and shuttle bus services at various military installations in the Republic of Korea. The contract was awarded pursuant to request for proposals (RFP) No. DABP01-03-R-0035; the protest was filed on June 19, 2003. On August 12, after receipt of the protester's comments on the agency report, and after receipt of additional questions for the record prepared by our Office, the Army took corrective action in response to the protest. Based upon the corrective action, we dismissed the protest as academic. Shingdong-A now seeks reimbursement of its protest costs on the grounds that the agency unduly delayed taking corrective action in the face of a clearly meritorious protest. We grant the request, and recommend that Shindong-A be reimbursed the reasonable costs of filing and pursuing its protest, including those incurred in pursuing this request. BACKGROUND The solicitation, issued on March 12, 2003, sought offers to provide all buses, operators, fuel, facilities, and management required to perform fare-free mass transit and shuttle bus services for specified U.S. military installations in the Republic of Korea. RFP at 33. The solicitation contemplated the award of a fixed-price contract to the firm submitting the lowest-priced, technically acceptable offer. RFP at 75. Technical proposals were to be evaluated under the following five evaluation factors: quality control plan, safety plan, equipment vehicle list/insurance liability, offeror's qualifications, and past performance. RFP at 70. These factors were to be rated on a pass/fail basis as either acceptable or unacceptable. If any factor received an unacceptable rating, the proposal was to be rated unacceptable overall. Id.; see also RFP at 75. The only technical factor at issue here is the one that considered an offeror's proposed equipment. The RFP required offerors to include the following information for evaluation under this factor: (1) Equipment utilization plan (owned and rented vehicle--provide a number of bus and plate number which is to be utilized is available). /1/ (2) Provide the type of equipment, giving details on the service and maintenance contract/adequately described procedures. (3) Provide insurance for the contractor operated buses with [Republic of Korea] accredited insurance company. (4) Bus(es) must be in a safe and serviceable condition at all times and will not exceed the life expectancy of 7 years of age. Id. at 71. The RFP did not require any specific number of buses, but instead required offerors to furnish all buses "necessary for satisfactory contract performance," and to provide bus service in accordance with numerous bus schedules included as appendices to the solicitation. RFP at 38. The Army received offers from four firms, including Shindong-A (the incumbent contractor), and New Kyungdong, and forwarded the proposals for review to a technical evaluation board (TEB). The TEB rated Shindong-A's proposal acceptable under every factor, and acceptable overall; it rated New Kyungdong's proposal acceptable under every factor except the equipment factor, where it was rated unacceptable because the evaluators believed that the firm did not propose enough buses to perform the required services. /2/ In the TEB's view, at least 47 buses would be needed to perform these services. Although determining the precise numbers of proposed buses is not necessary for determining the merit of this protest, the Army explains that New Kyungdong's proposal: (1) indicated that the company would use 37 buses to perform the contract; (2) acknowledged that the company's bus fleet was currently comprised of 32 buses; and (3) advised that the company had an agreement to procure 25 more buses in the event it received the contract here.