BNUMBER:  B-271039.2
DATE:  May 15, 1996
TITLE:  American Lawn Service, Inc.--Entitlement to Costs

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Matter of:American Lawn Service, Inc.--Entitlement to Costs

File:     B-271039.2

Date:May 15, 1996

Henry P. Wall, Esq., Haynsworth, Marion, McKay & Guerard, for the 
protester.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of 
the General Counsel, GAO, participated in the preparation of the 
decision.

DIGEST

Protester is not entitled to protest costs where the agency took 
corrective action in response to the protest approximately 1 month 
after the protest was filed and before filing a report defending 
against the protest.

DECISION

American Lawn Service, Inc. requests that we recommend that it be 
reimbursed for its costs of pursuing its protest against the award of 
a contract to Maintenance Engineers under request for proposals (RFP) 
No. N62755-94-R-2826, issued by the Department of the Navy, Naval 
Facilities Engineering Command, for grounds maintenance and tree 
trimming services for Central and West Oahu, Hawaii.  

We deny the request.

American Lawn first protested the award to Maintenance Engineers on 
August 11, 1995.  We sustained that protest in American Lawn Serv., 
Inc., B-267715, Dec. 20, 1995, 95-2 CPD  para.  278.  We recommended that 
the agency either evaluate proposals based on the best value basis 
stated in the RFP, including a price realism provision which 
apparently was not adequately considered, or amend the RFP to provide 
for award on a lowest-priced, technically acceptable basis and solicit 
revised proposals on that basis.  We also found that American Lawn was 
entitled to reimbursement of its costs of pursuing that protest.

In response to our decision, the agency again selected Maintenance 
Engineers's proposal for award on a best value basis.  American Lawn 
protested this action to our Office on February 5, 1996.  On February 
8, the agency informed our Office that it was considering corrective 
action in response to the protest.  On March 11, the agency notified 
our Office that it had amended the RFP to provide for award on a 
lowest-priced, technically acceptable basis and would request revised 
proposals.  We dismissed American Lawn's second protest because the 
agency had taken corrective action, rendering the protest academic.  
American Lawn now contends that, since the agency took corrective 
action in response to its second protest, American Lawn is entitled to 
reimbursement of its costs of pursuing the second protest.

Where a contracting agency takes corrective action in response to a 
protest, our Office may recommend that the agency pay the protester 
the costs of filing and pursuing the protest.  4 C.F.R.  sec.  21.8(e) 
(1996).  The intention behind implementing this regulation was not to 
award protest costs in every case in which an agency takes corrective 
action, but rather where an agency unduly delays 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  para.  558; R.J. 
Sanders, Inc.--Claim for Costs, B-245388.2, Apr. 14, 1992, 92-1 CPD  para.  
362.  

Here, within a few days of American Lawn's second protest, the agency 
had reviewed the protest and determined that corrective action might 
be appropriate.  The contracting activity implemented corrective 
action a little more than 1 month after the protest was filed.  The 
agency did not submit a report in response to the protest, and thus 
the protester did not expend time or money in responding to a report.  
Under the circumstances, the agency was reasonably prompt in taking 
corrective action in response to this protest and, as a result, a 
recommendation for protest costs is not warranted.  See id.

The request that we recommend reimbursement of protest costs is 
denied.

Comptroller General
of the United States