BNUMBER:  B-259462.2
DATE:  September 11, 1995
TITLE:  Red River Service Corporation--
Entitlement to Costs

**********************************************************************

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