Draken International, Inc. (CAF-CAS-14)

B-421097.5 Apr 06, 2023 Jump To FULL REPORT VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Draken International, LLC, of Fort Worth, Texas, requests that our Office recommend it be reimbursed the costs of filing and pursuing its protest challenging the issuance of a task order to Top Aces Corporation, of Reno, Nevada, under solicitation No.CAF-CAS- 14, issued by the Department of the Air Force for adversary air training services. The protester challenged the agency's evaluation of proposals and best-value tradeoff decision. We grant the request. View Decision DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release. Decision Matter of: Draken International, Inc. File: B-421097.5 Date: April 6, 2023 John E. McCarthy Jr., Esq., and Issac D. Schabes, Esq., Crowell & Moring LLP, for the protester. Erika Whelan Retta, Esq., Aaron J. Weaver, Esq., and Christian H. Robertson II, Esq., Department of the Air Force, for the agency. Mary G. Curcio, Esq., and John Sorrenti, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Request for recommendation that protester be reimbursed the costs of filing and pursuing its protest is granted where protest was clearly meritorious and the agency delayed taking corrective action until after record was fully developed. DECISION Draken International, LLC, of Fort Worth, Texas, requests that our Office recommend it be reimbursed the costs of filing and pursuing its protest challenging the issuance of a task order to Top Aces Corporation, of Reno, Nevada, under solicitation No.CAF-CAS-14, issued by the Department of the Air Force for adversary air training services. The protester challenged the agency’s evaluation of proposals and best-value tradeoff decision. We grant the request. BACKGROUND On September 26, 2022, Draken filed its protest against the Air Force’s issuance of a task order to Top Aces Corporation. As relevant to this request, the protester argued in part that the Air Force unreasonably evaluated proposals under the technical experience subfactor and conducted a flawed best-value tradeoff. After development of the protest record, the cognizant GAO attorney conducted an “outcome prediction” alternative dispute resolution (ADR) conference. During that ADR, the GAO attorney advised the parties that GAO would likely sustain Draken’s challenges to the agency's evaluation of proposals under the technical experience subfactor and the best-value tradeoff decision.[1] In response to the ADR, the Air Force informed GAO that it intended to take corrective action consisting of re-evaluating the offerors’ technical experience and conducting a new best-value tradeoff. Based on the agency's proposed corrective action, GAO dismissed Draken’s protest as academic. Draken International, LLC, B-421097, Dec. 6, 2022 (unpublished decision). Following the dismissal of the protest, Draken filed this request that GAO recommend that Draken be reimbursed for the costs of filing and pursuing its protest that the agency unreasonably evaluated proposals under the technical experience subfactor and conducted a flawed best-value tradeoff.[2] DISCUSSION Draken requests our Office recommend that the Air Force reimburse Draken for the costs associated with its challenges to the agency’s evaluation of the technical experience subfactor and the best-value tradeoff decision. The agency asserts that we should deny Draken’s request because the agency had a defensible legal position. Specifically, the agency argues the protester did not demonstrate that it was competitively prejudiced by the improper evaluation, and the protest was therefore not clearly meritorious.[3] When a procuring agency takes corrective action in response to a protest, our Office may recommend under 4 C.F.R. § 21.8(e) that the agency reimburse the protester its reasonable 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 the protester to expend unnecessary time and resources to make further use of the protest process in order to obtain relief. Pemco Aeroplex, Inc.--Recon. & Costs, B-275587.5, B-275587.6, Oct. 14, 1997, 97-2 CPD ¶ 102 at 5. A protest is clearly meritorious when a reasonable agency inquiry into the protest allegations would show facts disclosing the absence of a defensible legal position. The Real Estate Ctr.--Costs, B-274081.7, Mar. 30, 1998, 98-1 CPD ¶ 105 at 3.