BTAS, Inc.

B-415810.3 Mar 12, 2018 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Innovative Technologies, Inc. (ITC), a woman-owned small business located in Dayton, Ohio, requests that our Office recommend that the Department of the Air Force reimburse the firm the reasonable costs of filing and pursuing its protest with respect to request for proposals (RFP) No. EPASS-RFP-38, issued by the agency to procure advisory and assistance services for its Life Cycle Management Center Business Enterprise Systems Directorate. We deny the request. We deny the request. View Decision Decision Matter of:  Innovative Technologies, Inc.--Costs File:  B-415810.3 Date:  March 12, 2018 Robert G. Hanseman, Esq., Sebaly Shillito & Dyer, for the protester. Colonel C. Taylor Smith and Lieutenant Colonel Damund E. Williams, Department of the Air Force, for the agency. Pedro E. Briones, Esq., and Peter H. Tran, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Request for reimbursement of protest costs is denied where the agency did not unduly delay taking corrective action in the face of a clearly meritorious protest. DECISION Innovative Technologies, Inc. (ITC), a woman‑owned small business located in Dayton, Ohio, requests that our Office recommend that the Department of the Air Force reimburse the firm the reasonable costs of filing and pursuing its protest with respect to request for proposals (RFP) No. EPASS‑RFP‑38, issued by the agency to procure advisory and assistance services for its Life Cycle Management Center Business Enterprise Systems Directorate. We deny the request. BACKGROUND On December 20, 2017, ITC, through counsel, filed a protest challenging the evaluation of its proposal and its elimination from the competitive range.  Prior to submitting an agency report in response to the protest, the Air Force informed the parties that it intended to take corrective action by voiding the competitive range determination, reevaluating all proposals received (including from ITC), and making a new competitive range determination if necessary.  On January 24, 2018, our Office dismissed the protest because the Air Force’s corrective action rendered the protest academic.  Innovative Techs., Inc., B‑415810.2, Jan. 24, 2018 (unpublished decision). ITC now requests that our Office recommend the protester be reimbursed its attorney’s fees, because “it should not have been necessary for ITC to retain counsel as part of seeking an award” under the RFP.  Req. at 1.  In this respect, ITC asserts it is entitled to recover the initial costs by counsel of “assessing the facts and getting up to speed” on the procurement, representing ITC during the debriefing process, and preparing and filing the protest.  Response to Air Force Opp’n to Req. (Response) at 1.  According to ITC, a protester should be able to recover the initial costs of “filing” a protest under our Bid Protest Regulations, regardless of whether the protester incurred any additional costs for “pursuing” the protest in the face of objection or undue delay.  Id. at 1‑2, citing 4 C.F.R. § 21.8(e).  ITC also claims that its protest was clearly meritorious because “the speed with which the Air Force” decided to take corrective action after the protest was filed, suggests the agency’s source selection decision was “flagrantly erroneous” and “fundamentally and obviously wrong and contrary to law . . . .”[1]  Id. at 2‑3. DISCUSSION Under our Bid Protest Regulations, if an agency decides to take corrective action in response to a protest, our Office may recommend that the agency pay the protester the reasonable costs of filing and pursuing the protest, including attorneys’ fees and consultant and expert witness fees.  4 C.F.R. § 21.8(e).  This does not mean that costs should be reimbursed in every case in which an agency decides to take corrective action; rather, a protester should be reimbursed its costs where an agency unduly delayed its decision to take corrective action in the face of a clearly meritorious protest.  NxGen Process Grp. LLC‑‑Costs, B‑406650.2, May 24, 2012, 2012 CPD ¶ 163 at 2.  When an agency takes corrective action on or before the due date set for receipt of the agency report, our Office views such action as prompt and will not recommend the reimbursement of costs.  The Sandi–Sterling Consortium--Costs, B‑296246.2, Sept. 20, 2005, 2005 CPD ¶ 173 at 2-3; HSQ Tech.--Costs, B‑276050.2, June 25, 1997, 97‑1 CPD ¶ 228 at 2.  As stated above, the Air Force took corrective action in response to ITC’s protest before submitting an agency report.  Therefore, ITC’s request does not meet our standard for recommending reimbursement of protest costs and we agree with the Air Force that ITC is not entitled to such costs.  See NxGen Process Grp. LLC‑‑Costs, supra; Air Force Opp’n to Req.