BNUMBER:  B-261209.2
DATE:  May 16, 1996
TITLE:  Fine Manufacturing, Inc.--Entitlement to Costs

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Matter of:Fine Manufacturing, Inc.--Entitlement to Costs

File:     B-261209.2

Date:May 16, 1996

Alan M. Lestz, Esq., Witte, Lestz & Hogan, P.C., for the protester.
Jeffrey I. Kessler, Esq., and William G. Bradley, Esq., Department of 
the Army, for the agency.
Katherine I. Riback, Esq., and Glenn G. Wolcott, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protester is not entitled to the costs of filing and pursuing its 
protest where agency's action to rescind prior cancellation of 
solicitation and award contract to protester was based on protester's 
agreement to perform the contract in an alternative manner permitted 
by the solicitation and record does not indicate that the protest was 
meritorious.

DECISION

Fine Manufacturing, Inc. requests that our Office declare that firm 
entitled to recover the costs of filing and pursuing its protest which 
challenged the Department of the Army's cancellation of invitation for 
bids (IFB) No. DAAA09-94-B-0206.  Following Fine's protest and the 
filing of various submissions by both parties, Fine and the agency 
reached an agreement which rendered the protest academic.  Fine 
asserts it is entitled to protest costs; the agency disagrees.

We deny the request.

On June 13, 1994, the Army issued the IFB at issue, seeking bids for a 
quantity of cartridge magazines for 9mm pistols.  The IFB identified 
various parts of the magazine, including the follower, which were 
required to be built to government-supplied design specifications.  As 
amended, the IFB provided that the follower could be manufactured out 
of either plastic or aluminum, but specified a complex formula 
applicable to the manufacture of a plastic follower.[1] 

Bids were submitted by six offerors, including Fine.  Fine's bid was 
determined to be low, and the Small Business Administration 
subsequently issued Fine a certificate of competency.  Nonetheless, on 
March 3, 1995, the agency canceled the solicitation stating:  "Due to 
an incorrect material designation for the plastic which is used on the 
follower, subject solicitation will be canceled."  The agency further 
explained that it intended to include the alphanumeric sequence 
"A43500" in the specified formula rather than the sequence "A43600" 
which was actually included.[2]

Following cancellation, Fine filed an agency-level protest arguing 
that a plastic follower manufactured to the published specifications 
would adequately meet the government's needs.  The agency denied that 
protest on April 11.  On April 25, Fine 
filed a protest with our Office, challenging the agency's cancellation 
of the solicitation on essentially the same bases previously advanced 
to the agency.

The agency responded to Fine's protest by filing an agency report in 
which it defended its decision to cancel the solicitation.  Among 
other things, the agency noted that the defective specification may 
have limited the number of bids submitted, and further stated that 
Fine's manufacture of the plastic follower to the "A43600" 
specification would create an unacceptable safety risk since that 
product had not been subjected to various testing requirements.  

Fine responded to the agency report, submitting statements from 
various individuals with technical expertise and essentially arguing 
that the qualities of plastic manufactured to the "A43600" 
specification would meet the agency's requirements.  Nonetheless, one 
of Fine's experts acknowledged "one possible area of concern," noting 
that Fine's manufacture of the plastic follower to the "A43600" 
specification would result in a follower with "greater stiffness" 
which would "bend less" than a plastic follower manufactured to the 
"A43500" specification.  

Subsequently, Fine and the agency reached an agreement that Fine would 
provide an aluminum follower to the agency.[3]  Based on that 
agreement, the agency rescinded its prior cancellation of the 
solicitation and awarded a contract to Fine.  Accordingly, Fine's 
arguments regarding the acceptability of the plastic follower 
manufactured to the "A43600" specification were rendered academic and 
our Office dismissed the protest.  Fine subsequently submitted this 
request to recover its protest costs.  

Under our Bid Protest Regulations, 4 C.F.R.  sec.  21.6(e) (1995), a 
protester may be entitled to reimbursement of its reasonable costs of 
filing and pursuing a protest where the contracting agency decides to 
take corrective action in response to a protest.  This provision is 
intended to allow the award of protest costs where we find that the 
agency unduly delayed taking corrective action in response to a 
clearly meritorious protest.  See Tri-Ex Tower Corp., B-245877, Jan. 
22, 1992, 92-1 CPD  para.  100. 

Here, the record is clear that the agency's action was not taken as a 
result of a clearly meritorious protest.  On the contrary, the agency 
continues to maintain that the specification for a plastic follower 
published in the IFB was defective and that it would be inappropriate 
for the agency to field 9mm pistols which incorporate followers 
manufactured to that specification.  The agency maintains that, rather 
than conceding that Fine's protest was meritorious, the agency's 
action was based on Fine's agreement to perform the contract pursuant 
to the portion of the solicitation that was not defective, that is, 
the portion permitting manufacture from aluminum.  

On the record presented, there is no basis to conclude that Fine's 
protest was clearly meritorious.  Accordingly, Fine is not entitled to 
protest costs.  See PAI Corp. et al., B-244287.5 et al., Nov. 29, 
1991, 91-2 CPD  para.  508.

The request for costs is denied.  

Comptroller General 
of the United States

1. Specifically, the required plastic was identified by the 
alphanumeric sequence PA110G30A43600CA249GA136MA110AB001.  The various 
characters had technical significance regarding the "recipe" to be 
used.  As discussed below, the eighth through thirteenth characters, 
"A43600," were most relevant to the protest.  

2. Both Fine and the agency agree that the characters "A43600" in the 
specified formula required a higher "notched izod impact" strength 
than would have been required by the characters "A43500."  

3. As noted above, the IFB specifically permitted the follower to be 
manufactured from either aluminum or plastic with the caveat that, if 
manufactured from plastic, the follower must conform to the specified 
formula.