First Federal Corporation--Costs, B-293373.2, April 21, 2004

B-293373.2 Apr 21, 2004 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights GAO nevertheless will not recommend reimbursement of protest costs. Corrective action therefore was not in response to a clearly meritorious protest. Quotations were to be evaluated on a "best value" basis. The minimum distance requirement was intended to provide adequate separation of geographic areas and subsequent protection from fire. Both of which were found acceptable under all factors. The contracting officer concluded that the quotations were technically equal. First Federal argued that the award was improper because a surveyor's report it obtained indicated that ISC's facility was less than 25 miles away from the NCC. Because the NCC is a secure facility located in a heavily wooded area and is not physically located near its street address. View Decision First Federal Corporation--Costs, B-293373.2, April 21, 2004 DIGEST Attorneys DECISION First Federal Corporation requests that we recommend that it be reimbursed the costs of filing and pursuing its protest challenging the award of a contract to Independent Services Corp. (ISC) under request for quotations (RFQ) No. SSA-RFQ-03-0159, issued by the Social Security Administration (SSA) for storage of magnetic media. We deny the request. The solicitation, a small business set-aside, sought quotations for transportation and storage of magnetic media from SSA's National Computer Center (NCC). Quotations were to be evaluated on a "best value" basis, taking into consideration price, experience, past performance, and acceptability of the proposed facility. Among other requirements, the RFQ specified that a proposed facility shall be located not less than 25 miles, point-to-point, from the SSA complex in Woodlawn, Maryland. The minimum distance requirement was intended to provide adequate separation of geographic areas and subsequent protection from fire, flood, earthquakes, and other acts of nature. ISC and First Federal submitted quotations, both of which were found acceptable under all factors, including the geographic location of their proposed facilities. The contracting officer concluded that the quotations were technically equal, and made award to ISC based on its significantly lower price. After the agency denied First Federal's agency-level protest, it filed a protest with our Office. Among other issues, First Federal argued that the award was improper because a surveyor's report it obtained indicated that ISC's facility was less than 25 miles away from the NCC, and thus did not meet the geographical restriction in the RFQ. In its response to the protest, SSA explained that its evaluator used mapping software from the Internet to measure the point-to-point distance for each vendor. Because the NCC is a secure facility located in a heavily wooded area and is not physically located near its street address, the evaluator used the software's zoom feature to approximate the physical location of the NCC. Using this method, he reportedly determined that ISC's facility was at least 25 miles away and that the quotation was acceptable. However, he did not print out the results of his measurements. After reviewing the agency's explanation, we requested that it re-run the ISC measurements and produce both a printout of that calculation, and a declaration from the evaluator recounting his methodology in the original and re-run measurements. SSA reportedly repeated the evaluator's measurement several times using the same methodology as before, but could not obtain a result showing ISC's facility to be at least 25 miles away from the NCC. According to SSA, it most often obtained a result of 24.4 miles. Reasoning that another half-mile of distance did not provide any additional security from acts of nature, SSA determined that the 25-mile requirement did not reflect its actual needs, and informed us that it intended to determine its true needs, then amend the specification and release a new solicitation. Based on this corrective action, we dismissed First Federal's protest as academic (B-293373, Jan. 30, 2004). First Federal now requests that we recommend that it be reimbursed the reasonable costs of filing and pursuing its protest, including reasonable attorneys' fees. Bid Protest Regulations, 4 C.F.R. Sec. 21.8(e) (2004). In its view, the agency unduly delayed taking corrective action on a clearly meritorious protest. Where a procuring agency takes corrective action in response to a protest, we may recommend that it reimburse the protester its protest costs where, based on the circumstances of the case, we determine that the agency unduly delayed taking corrective action in the face of a clearly meritorious protest, thereby causing a protester to expend unnecessary time and resources to make further use of the protest process in order to obtain relief. Pemco Aeroplex, Inc.--Recon. and Costs, B-275587.5, B-275587.6, Oct. 14, 1997, 97-2 CPD Para. 102 at 5.