BNUMBER: B-259462.2
DATE: September 11, 1995
TITLE: Red River Service Corporation--
Entitlement to Costs
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Matter of: Red River Service Corporation--
Entitlement to Costs
File: B-259462.2
Date: September 11, 1995
Theodore
M. Bailey, Esq., Bailey, Shaw and Deadman, P.C., for the protester.
Robert C. Arsenoff, Esq., and Paul I. Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Request for declaration of entitlement to costs is denied where
earlier decision did not reach the merits of the protest and agency
did not take corrective action in response to the protester's
allegations.
DECISION
Red River Service Corporation requests that our Office declare it
entitled to recover the reasonable costs of filing and pursuing its
protest challenging the Department of the Army's refusal to permit the
protester to withdraw its bid under solicitation No. DAHC77-94-B-0076
for refuse collection services at Fort Schafter, Hawaii.
We deny the request.
Bids were opened on October 7, 1994. On October 10, the Army advised
Red River that it had submitted the apparent low bid. Red River
subsequently claimed a mistake in bid and requested permission to
withdraw. On November 17, the Army denied the request and Red River
then filed a pre-award protest with this Office.
On January 3, 1995, the Army filed its agency report in response to
the protest; in addition to substantively defending its refusal to
permit withdrawal of the protester's bid, the Army noted that the bid
was due to expire on January 5 and that, on December 13, 1994, Red
River had refused the agency's request to extend the bid acceptance
period. The Army indicated that it could still make the award to Red
River on the theory that its protest before this Office operated to
extend the bid acceptance period.
On January 16, 1995, the protester's counsel filed lengthy comments in
rebuttal to the agency's substantive position; at the end of the
comments, counsel noted that the bid in question had, in fact, expired
on January 5 and argued that the protest should, therefore, be
dismissed because the Army was precluded from making an award in any
event.
We dismissed the protest as academic noting that: "whether the
protester prevails or not [on the merits] in the matter before us, the
agency cannot make an award to the firm."
In its request for a declaration of entitlement to costs filed on
March 22, Red River's counsel states in pertinent part:
"The GAO's dismissal on exactly the grounds argued by Red River
in its comments on the agency report is, in essence, a decision
sustaining Red River's protest that it should not receive award.
Accordingly, since the agency continued to take an unreasonable
position regarding award, a position which required Red River to
continue to argue against award, Red River is entitled to recover
the costs of pursuing this protest."
Our Bid Protest Regulations, 4 C.F.R. 21.6(d) and (e) (1995), set
forth the two circumstances under which we may find that a protester
is entitled to recover protest costs.
Section 21.6(d) provides that if we determine that a solicitation,
proposed award, or award does not comply with statute or regulation,
we may declare the protester to be entitled to protest costs. If we
do not make such a determination, then a claim for costs under this
section is without foundation. See Miami Wall Sys., Inc.--Claim for
Costs, B-227072.2, July 15, 1987, 87-2 CPD 49. Where, as here, a
protest was properly dismissed as academic, there was no decision on
the merits by our Office and thus no basis for award under section
21.6(d). Id. Accordingly, to the extent that Red River's request is
based on this section of our Regulations, it is denied because,
notwithstanding the protester's contention that our dismissal
effectively sustained its protest, in fact, we never reached the
merits of the case.
Under section 21.6(e), we may declare a protester entitled to 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. Oklahoma Indian Corp.--Claim for Costs,
70 Comp. Gen. 558 (1991), 91-1 CPD 558. Where, however, a protest
is rendered academic for reasons unrelated to the protest allegations,
there is no corrective action because there is no indication that the
agency recognized the merit of the protest and took action to remedy
the impropriety identified by the protester and, accordingly, there is
no basis for awarding costs under section 21.6(e). See Digital Sys.
Group, Inc.--Entitlement to Costs, B-257835.2, Apr. 3, 1995, 95-1 CPD
173.
In the present case, rather than recognizing the merit of the protest,
the Army substantively defended its position in response to the
protester's allegations and even attempted to obtain an extension of
Red River's bid acceptance period. While Red River was able to avoid
the contract award because of the expiration of its bid acceptance
period, no corrective action was taken and, to the extent that Red
River's request for costs may be read as invoking section 21.6(e), the
request is without merit. Id.
The request is denied.
/s/ Christine S. Melody
for Robert P. Murphy
General Counsel