BNUMBER: B-266337.3; B-266338.3; B-266346.3
DATE: July 3, 1996
TITLE: Carlson Wagonlit Travel--Request for Declaration of
Entitlement to Costs
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DOCUMENT FOR PUBLIC RELEASE
A protected decision was issued on the date below and was subject to a
GAO Protective Order. This version has been redacted or approved by
the parties involved for public release.
Matter of:Carlson Wagonlit Travel--Request for Declaration of
Entitlement to Costs
File: B-266337.3; B-266338.3; B-266346.3
Date:July 3, 1996
Lars E. Anderson, Esq., J. Scott Hommer III, Esq., and Wm. Craig
Dubishar, Esq., Venable, Baetjer and Howard, LLP, for the protester.
Marie N. Adamson, Esq., Michelle Harrell, Esq., and Janet Harney,
Esq., General Services Administration, for the agency.
Andrew T. Pogany, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
In resolving requests for declaration of entitlement to costs
following corrective action by contracting agency, the General
Accounting Office does not deem 38 working days taken by the agency
before taking corrective action to be an undue delay where four
separate protests were filed simultaneously against the agency; the
protests involved complex and detailed evaluation issues; the agency
had to review and organize numerous documents to respond to the
protester's document production requests; four separate good faith
dismissal requests by the agency had to be resolved; and the agency
diligently and quickly responded to all requests by our Office to
expedite the discovery and protest process.
DECISION
Carlson Wagonlit Travel requests that our Office declare it entitled
to recover the costs of filing and pursuing its protests in connection
with three solicitations issued by the General Services Administration
(GSA) for commercial travel management services for various
agencies.[1]
We deny the request.
On September 29, 1995, Carlson filed four protests against awards
under four separate but very similar solicitations issued by GSA. The
protests substantively shared several major protest grounds. Briefly,
Carlson argued that the agency allegedly failed to follow the stated
evaluation criteria by unreasonably assigning "enhancement credits" to
the awardee while ignoring significant enhancements offered by
Carlson's proposal that reflected cost savings for the government;[2]
that the agency failed to evaluate offerors's past performance in
accordance with the terms of the solicitation; that the agency failed
to conduct adequate discussions with Carlson; and that GSA improperly
waived the RFP restriction prohibiting offerors from submitting their
proposals in "alternative proposal formats" to the prejudice of
Carlson. Concerning enhancements, Carlson's initial protests were
based in substantial part on "information and belief."[3] Along with
its protests, Carlson filed detailed discovery requests for evaluation
and other documents with the agency.
The original due date for the agency's reports was November 6. On
October 16, the agency notified our Office of its intent to file
requests for dismissal, in whole or in part, with respect to each
protest filed by Carlson. At that time, our Office notified GSA that
in view of the complexity of the protests and the number of documents
requested by Carlson, we were requesting GSA to permit counsel for the
protester and counsel for the interested parties direct access to
GSA's documents, in the hope of expediting the discovery process by
eliminating or reducing potential document disputes; we also requested
GSA to produce a protest exhibit file prior to its submission of the
agency report in order to early identify any supplemental protests.
GSA then requested that our Office, in the interest of limiting
document production to issues properly before our Office, issue a
ruling on GSA's dismissal requests prior to GSA granting access to
counsel to the agency's procurement documents. We granted GSA's
request.
On October 20, GSA filed four separate requests for dismissal. On
October 27, Carlson filed responses to the dismissal requests. On
October 31, GSA filed responses to "inaccuracies" allegedly contained
in Carlson's responses to GSA's requests for dismissal. Four working
days later, on November 6, our Office issued its ruling on the
agency's dismissal requests; in our ruling, we dismissed one protest
in its entirety because we found that Carlson was not an interested
party, and we partially dismissed one protest ground in each of the
three remaining protests.
On November 9, GSA provided counsel for Carlson with the protest
exhibit file consisting of 15 volumes of procurement documents; on
November 13, GSA permitted counsel for the protester to visit the
agency and perform an on-site inspection of all procurement files.
From November 14 to November 20, GSA, along with many other federal
agencies, was shut down due to a furlough. GSA called and requested
our Office not to penalize the agency for the furlough but to grant
additional time in view of delays beyond its control. We granted the
request. On November 22, Carlson filed three separate detailed
supplemental protests based on the documents it received in the
protest exhibit file and its on-site inspection of documents. Seven
working days later, on December 4, the agency took corrective action
(because "the evaluation of enhancements was flawed") by terminating
the awards and agreeing to recompete the requirements. On December
11, Carlson filed these requests for declaration of entitlement to
costs for the three protests that resulted in corrective action by the
agency.
Under the rules applicable to this case, where an agency took
corrective action on a protest filed within our Office prior to our
issuing a decision on the merits, we may declare a protester entitled
to "recover reasonable costs of filing and pursuing the protest." 4
C.F.R. sec. 21.6(e); Metters Indus., Inc.--Request for Declaration of
Entitlement to Costs, B-240391.5, Dec. 12, 1991, 91-2 CPD para. 535. This
provision was intended to allow the award of costs when agencies
unduly delayed taking corrective action in the face of a clearly
meritorious protest. Id. A protester is not entitled to costs where,
under the circumstances of a given case, including the complexity of
the procurement or procurements and the issues involved, an agency
does not unduly delay taking corrective action. See Locus Sys.,
Inc.--Request for Declaration of Entitlement to Costs, 71 Comp. Gen.
243 (1992), 92-1 CPD para. 177.
Here, from the initial filing date of September 29, the agency took 38
working days (excluding the furlough days) to take corrective action,
13 working days past the initial due date for the agency report.
Carlson argues that this delay entitles it to costs, stating that
"[i]nstead of assessing the merits of the protest allegations or
filing a responsive agency report, GSA . . . filed four separate and
extensive Motions to Dismiss [totaling] 36 single-spaced pages, not
including the 17 exhibits [that were attached to the motions]."
The record shows that the agency's dismissal requests did delay the
production of documents and the agency report from which the protester
could have asserted its supplemental protest grounds at a much earlier
date. However, we find that the agency's requests for dismissal of
the protests were reasonable, raised procedural matters which were of
potentially substantial importance to the resolution of these
protests, and were filed in good faith. We think a contracting
agency, in defending protests filed with our Office, is permitted to
vigorously assert procedural and substantive defenses in good faith
without having to risk the assessment of costs. Here, since our
Office dismissed one protest in its entirety in response to GSA's
request and partially dismissed the three other protests, we find that
GSA in good faith asserted reasonable procedural defenses which agency
counsel has a right and duty to do. In short, we think the agency's
pursuit of a reasonable procedural litigation strategy before our
Office does not constitute undue delay.
Moreover, we fail to see how GSA otherwise unduly delayed taking
corrective action. First, we note that our Office tasked GSA to
produce a voluminous protest exhibit file prior to the submission of
the agency report. As GSA states:
"The agreement to extend the original filing date [of the
agency report] allowed GAO to rule on the agency's summary
dismissal requests as well as to permit the agency to provide
the protester and interested parties with copies of protected
material prior to the filing of the agency report. By
providing the protester and interested party with the
protected material, GSA was facilitating the protest process
for both GAO and the protester. By releasing the documents
prior to the development of the agency report, GSA was
necessarily required to devote time and limited resources to
document production at the expense of time and resources
devoted to review of the merits of the protest."
Second, even though the protest involved complex and detailed
evaluation issues, and extensive document production requests, GSA
diligently and quickly responded to all requests by our Office to
expedite the discovery and protest process. Under the circumstances,
Carlson's requests for declaration of entitlement to costs is denied.
Comptroller General
of the United States
1. Carlson initially protested request for proposals (RFP) Nos.
3FBG-W-CW-N-5197 (White House); 3FBG-W-AO-N-5205 (Department of
State); 3FBG-W-CM-N-5204 (Department of Agriculture); and
3FBG-W-CM-N-5201 (National Institutes of Health (NIH)). Contracts
under three of these solicitations were awarded to American Express
Travel Related Services Company, Inc.; the remaining contract (NIH)
was awarded to Ober United. As explained below, we dismissed
Carlson's protest against the award of the contract under the NIH
solicitation because we found that the firm was not an interested
party. See 4 C.F.R. sec. 21.0(a) and 21.1(a) (1995).
2. An "enhancement" is a proposed service or benefit offered by an
offeror above the minimum requirements of the solicitation.
3. For example, Carlson stated that "[h]ere, on information and
belief, the GSA's analysis of the 'most advantageous' offer 'to the
Government' was flawed [because of a faulty enhancements evaluation]."
As another example, Carlson stated that "[o]n information and belief,
the Government failed to give proper evaluation credit for numerous
significant and meaningful enhancements proposed by Carlson. Carlson
also argued that "[o]n information and belief, GSA assigned
enhancement credit [to one of the awardees for insignificant parking
discounts]."