B-299307.3; B-299308.3, Panacea Consulting, Inc.--Costs, July 24, 2007

B-299307.3; B-299308.3, Panacea Consulting, Inc.--Costs, July 24, 2007 TITLE: B-299307.3; B-299308.3, Panacea Consulting, Inc.--Costs, July 24, 2007 BNUMBER: B-299307.3; B-299308.3 DATE: July 24, 2007 ********************************************************************** B-299307.3; B-299308.3, Panacea Consulting, Inc.--Costs, July 24, 2007 Decision Matter of: Panacea Consulting, Inc.--Costs File: B-299307.3; B-299308.3 Date: July 24, 2007 Lars E. Anderson, Esq., J. Scott Hommer, III, Esq., Peter A. Riesen, Esq., and Keir X. Bancroft, Esq., Venable LLP, for the protester. Herman J. Narcho, Esq., and Dennis Adelson, Esq., Department of Labor, for the agency. Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Request for recommendation that protester be reimbursed costs of filing and pursuing protest is granted, in part, where agency took corrective action in response to outcome prediction alternative dispute resolution conducted by GAO attorney. 2. Recovery of protest costs is limited to those issues upon which protester prevailed, where those issues were based on distinct core of facts and legal theories unrelated to facts and legal theories underlying unsuccessful arguments. DECISION Panacea Consulting, Inc. requests that we recommend that it be reimbursed the costs of filing and pursuing its protest against the issuance of delivery orders to Systems Integration and Development, Inc. (SID) under solicitation Nos. FY07FA1-64079E446-0001 and FY07FA3-64079E448-0001, issued by the Department of Labor for, respectively, project management and support services and core research and development support services. We recommend that Panacea be reimbursed its protest costs to the extent discussed below. In its protest, Panacea initially asserted that the agency unreasonably evaluated SID's submissions because it identified numerous key personnel who were Panacea employees. According to the protester, it was unreasonable for the agency to give SID credit for these employees because they were bound by "non-compete" agreements with Panacea, and thus would not be available to work for SID. In a related assertion, Panacea argued that these key employees violated the procurement integrity provisions, 41 U.S.C. sect. 423 (2000), by allegedly sharing Panacea's proprietary information with SID. After the agency submitted its report in response to the protest, Panacea raised two additional protest grounds--the agency improperly gave disproportionate weight to price versus technical considerations in the source selections, and failed to document the basis for the numeric scores assigned to the submissions during its evaluation and source selection. The agency responded to these allegations and the protester filed supplemental comments. The cognizant GAO attorney subsequently conducted an outcome prediction alternative dispute resolution (ADR) conference.[1] He advised the agency that Panacea's protest appeared to be meritorious insofar as the record showed that the agency had, in fact, improperly weighted the price and technical considerations in the evaluations and source selection decisions, and that the record was lacking in support for the evaluation scores assigned to the competing submissions. Accordingly, the GAO attorney advised the agency that it could address these concerns by reevaluating submissions in a manner consistent with the terms of the solicitations, and preparing narrative materials to explain the basis for the point scores assigned and the source selection decisions made. The GAO attorney also advised the parties that Panacea's remaining assertions appeared to be without merit. In response to the ADR, the agency advised our Office that it intended to take corrective action by reevaluating the submissions in a manner consistent with the terms of the solicitations, and that it also intended to prepare narrative materials in support of its evaluation. In view of these representations, we dismissed Panacea's protest as academic (B-299307 et al., Mar. 28, 2007). Shortly after we dismissed the protest, Panacea filed this request. In response, the agency argues that reimbursement of costs is not warranted because it did not agree to pay Panacea's protest costs during the ADR procedure discussed above; had the GAO attorney indicated that reimbursement was recommended, the agency would have declined to take corrective action and instead elected to await our decision. The agency asserts that reimbursement is not appropriate in any case, because the protest was not clearly meritorious.