RAEKOR (AFX244-DPCS01)

B-422453.2 Jul 29, 2024 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Rex Eiserer, doing business as RAEKOR, a small business of Austin, Texas, 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 commercial solutions opening (CSO) topic No. AFX244-DPCS01. The procurement at issue involved a Small Business Innovation Research (SBIR) program. We dismissed the protest as academic on April 9, 2024, based upon the agency's notice of corrective action, wherein the agency pledged to rescind the non-awardable notification sent to the requester, and make a new award decision consistent with the terms of the CSO. We deny the request. View Decision Decision DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below was subject to a GAO Protective Order. This version has been approved for public release. Matter of: Rex Eiserer d/b/a RAEKOR--Costs File: B-422453.2 Date: July 29, 2024 Alan M. Apple, Esq., The Apple Law Firm, PLLC, for the requester. Nicholas T. Iliff, Jr., Esq., Department of the Air Force, for the agency. Michael P. Price, Esq., and John Sorrenti, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Request for recommendation that the procuring agency reimburse the requester's costs of filing and pursuing its protest is denied where the agency took corrective action prior to the due date for the agency report. DECISION Rex Eiserer, doing business as RAEKOR, a small business of Austin, Texas, 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 commercial solutions opening (CSO) topic No. AFX244-DPCS01. The procurement at issue involved a Small Business Innovation Research (SBIR) program. We dismissed the protest as academic on April 9, 2024, based upon the agency's notice of corrective action, wherein the agency pledged to rescind the nonawardable notification sent to the requester, and make a new award decision consistent with the terms of the CSO. We deny the request. BACKGROUND This request concerns RAEKOR's protest before our Office filed on March 22, 2024. RAEKOR's protest challenged the Air Force's determination that RAEKOR's proposal, submitted pursuant to CSO AFX244-DPCS01, was unawardable, on the basis that the proposal contemplated essentially equivalent work to that proposed by RAEKOR as part of a separate SBIR proposal it had previously submitted.[1] Rex Eiserer d/b/a RAEKOR, B422453, Apr. 9, 2024 at 1 (unpublished decision). On April 1, 21 days prior to the agency report due date, the Air Force filed a notice of corrective action and request for dismissal in response to the protest. The agency pledged to “rescind[] the Non-Awardable Notification [sent to RAEKOR]” and “mak[e] a new award decision in accordance with the terms set forth in the [CSO].” Id. After concluding the proposed corrective action rendered the protest academic, our Office subsequently dismissed RAEKOR's protest. Id. RAEKOR then filed this request, seeking a recommendation that the Air Force reimburse the firm its costs of filing and pursuing its protest consistent with our Bid Protest Regulations. Req. for Reimbursement at 1; 4 C.F.R. § 21.8(e). DISCUSSION RAEKOR argues that its protest costs should be reimbursed because its protest was clearly meritorious. Req. for Reimbursement at 2. Though the requester acknowledges that “GAO has normally not awarded protest costs if the [a]gency takes timely corrective action, as the Air Force has done here,” the requester argues that our Office should nonetheless recommend protest costs be reimbursed. Id. at 1-2. In this regard, RAEKOR reasserts that its protest was clearly meritorious, and additionally contends that the financial burden of pursuing the protest should be placed on the agency. RAEKOR explains that it had attempted to resolve the matter with the Air Force prior to filing its protest, but the agency failed to respond or otherwise provide feedback regarding its determination that RAEKOR's proposal was non-awardable. Resp. to Req. for Dismissal at 4-5, 7. RAEKOR further argues that because the SBIR program's goal is to help the government meet its needs through the development and use of small business research, development, test, and evaluation solutions, it would be improper to place the financial burden of pursuing a meritorious protest on a small business protester. Req. for Reimbursement at 2; Resp. to Req. for Dismissal at 7. The requester contends that such a financial burden “may negatively and disproportionately impact RAEKOR and its research and development efforts.” Req.