Abhe & Svoboda, Inc.

B-412504.2 Apr 01, 2016 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Abhe & Svoboda, Inc. (ASI), of Jordan, Minnesota, requests that our Office recommend that the Department of the Army, Corps of Engineers, reimburse attorneys' fees and costs that the firm incurred in filing and pursuing a protest of the rejection of its proposal under request for proposals (RFP) No. W912DW-15-R- 0002, for dam spillway gates lifecycle maintenance. We deny the request. We deny the request. View Decision Decision Matter of:  Abhe & Svoboda, Inc.--Costs File:  B-412504.2 Date:  April 1, 2016 Benjamin M. Petre, Esq., Faegre Baker Daniels LLP, for the protester. Anna D. Ross, Esq., Department of the Army, Corps of Engineers, for the agency. Robert T. Wu, Esq., and Tania Calhoun, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Request that our Office recommend the reimbursement of costs of filing and pursuing a protest is denied where the agency took corrective action prior to the due date for the agency report, and where the agency filed a colorable, but unsuccessful procedural challenge to the protest. DECISION Abhe & Svoboda, Inc. (ASI), of Jordan, Minnesota, requests that our Office recommend that the Department of the Army, Corps of Engineers, reimburse attorneys’ fees and costs that the firm incurred in filing and pursuing a protest of the rejection of its proposal under request for proposals (RFP) No. W912DW-15-R-0002, for dam spillway gates lifecycle maintenance. We deny the request. BACKGROUND The procurement at issue is for lifecycle maintenance services at the Chief Joseph Dam spillway, located on the Columbia River near Bridgeport, Washington.  ASI submitted a proposal in response to the solicitation on February 26, 2015.  Protest at 2.  On September 11, ASI received a correspondence from the agency indicating that evaluations had been completed and the firm had been excluded from the competitive range.  Id. at 2-3.  On November 30, after receiving a debriefing, ASI filed a timely protest with our Office challenging the exclusion of its proposal from the competition.  See generally id.  In that protest, ASI raised various arguments challenging the reasonableness of the agency’s evaluation and exclusion of its proposal.  As relevant here, the firm challenged the reasonableness of the agency’s evaluation in light of the solicitation’s page limitation on key personnel qualifications and its 10-year limitation on past performance information.  Id. at 3, 5. On December 4, the agency submitted a request for dismissal arguing that ASI’s arguments constituted untimely challenges to the terms of the solicitation.  Request for Dismissal at 4-6.  Our Office denied the agency’s request on December 14, noting “[w]hile the agency is likely correct that any challenge to the terms of the solicitation is untimely, the protest clearly challenges the reasonableness of the agency’s evaluation, and thus is properly addressed on the merits.”  GAO E-mail to Parties, Dec. 14, 2015.  On December 18, the agency informed our Office that “the contracting officer has determined that award was improperly made based on the government’s disparate evaluation of proposals.”  Notice of Corrective Action, Dec. 18, 2015, at 1.  The agency indicated that it would take corrective action by terminating for convenience the contract to the awardee, and that it might resolicit the requirement in the future, subject to the availability of funds.  Id. Our Office dismissed the protest as academic on December 22 without opposition from the protester.  On January 6, ASI submitted the request for a recommendation of costs at issue here. DISCUSSION ASI asks our Office to recommend that the agency reimburse attorneys’ fees and costs because, it contends, the agency’s request for dismissal was “groundless and frivolous” and not filed in good faith.  Request for Costs at 4; Protester’s Response at 2-3.  ASI argues that the agency’s request for dismissal, which it asserts was filed one day after the protest was filed, was “apparently drafted as a matter of course, with no effort made to investigate the merits of the protest.”  Request for Costs at 4.  Moreover, the protester asserts, “the Agency did not make a reasonable inquiry into ASI’s allegations, but if it had, the Agency would have discovered an absence of a defensible legal position.”  Protester’s Response at 3.  The protester concludes that we should recommend reimbursement to redress the harm caused by the agency’s conduct, in that responding to the agency’s request resulted in increased costs to the protester.  Request for Costs at 4.  The agency responds that ASI is “simply wrong” in its allegations.  Agency Response at 2.  The agency states that upon receiving the protest, it undertook a comprehensive review of the evaluation of ASI’s technical proposal to confirm that it was correctly determined to be techni...