BNUMBER:  B-271793.2
DATE:  October 4, 1996
TITLE:  DuraMed Enterprises, Inc.--Request for Costs

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Matter of:DuraMed Enterprises, Inc.--Request for Costs

File:     B-271793.2

Date:October 4, 1996

D. Whitney Thornton II, Esq., Seyfarth, Shaw, Fairweather & Geraldson, 
for the protester.
Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

General Accounting Office will not recommend that protester recover 
the costs of filing and pursuing its protest where the agency's 
corrective action, taken on the day its report was due, was not unduly 
delayed. 

DECISION

DuraMed Enterprises, Inc. requests that our Office recommend that it 
recover the reasonable costs of filing and pursuing its protest of the 
award of a contract to Bay Area Home Healthcare under request for 
proposals (RFP) No. 662-71-95, issued by the Department of Veterans 
Affairs (VA) for home oxygen services.

We deny the request.

The original solicitation contained a Standard Industrial 
Classification (SIC) code of 7352.  However, when the solicitation was 
revised and reissued, the contracting officer inadvertently left the 
section reserved for the SIC code blank.  After Bay Area received 
award, DuraMed protested the firm's eligibility as a small business 
concern under SIC code 7352 with the Small Business Administration 
(SBA).  SBA dismissed the protest because the contracting officer had 
advised the agency that the solicitation's SIC code was 3842, not 
7352.  DuraMed appealed the dismissal to SBA, and simultaneously filed 
a protest in our Office, primarily asserting that the VA failed to 
provide the correct SIC code information to all offerors or, in the 
alternative, that the VA failed to provide the correct SIC code to 
SBA.  

During the size status protest, SBA asked the contracting officer for 
the section of the solicitation containing the SIC code clause.  
Instead of retrieving these pages from the solicitation, which left 
the SIC code information blank, the contracting officer retrieved them 
from Bay Area's proposal, which contained the typewritten SIC code 
3842.  After the protest was filed in our Office, the contracting 
officer discovered her mistake and informed SBA.  SBA's Office of 
Hearings and Appeals remanded the matter to the SBA Regional Office 
for a size status determination based upon SIC code 7352.  Since an 
SBA decision that Bay Area was other than small would render the 
protest academic, the contracting agency requested and received an 
extension of its report due date until June 6, 1996, 2 days after SBA 
was scheduled to issue its decision.  On June 6, the VA notified our 
Office that SBA had determined that Bay Area was other than small, and 
that the agency would terminate Bay Area's contract and make award to 
DuraMed.  Accordingly, we dismissed the protest as academic.

DuraMed argues that since its protest prompted VA to correct the 
misinformation it had provided to the SBA, the agency clearly took 
corrective action in response to the protest.  Dura Med asks that we 
recommend that it recover its costs associated with filing the 
protest.

When an agency takes corrective action prior to our issuing a decision 
on the merits, we may recommend that the protester recover the 
reasonable costs of filing and pursuing the protest.  Bid Protest 
Regulations, 4 C.F.R.  sec.  21.8(e) (1996).  We will make such a 
recommendation only where, based on the circumstances of the case, 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  para.  558.  A protester is not entitled 
to costs where, under the facts and circumstances of a given case, the 
agency has taken reasonably prompt corrective action.  Id.

Even assuming that DuraMed's protest was clearly meritorious, we have 
no basis to conclude that the firm should recover its protest costs 
because the corrective action, taken the day the report was due, was 
not unduly delayed.  Boaz Towing, Inc.--Entitlement to Costs, 
B-257883.2, Feb. 22, 1995, 95-1 CPD  para.  109; CSL Birmingham Assocs.; IRS 
Partners-Birmingham--Entitlement to Costs, B-251931.4; 
B-251931.5, Aug. 29, 1994, 94-2 CPD  para.  82.  That the agency was given 
an extension of time in which to file its report does not alter this 
conclusion, as the agency never filed a full report and the protester 
was not put to the time and expense of filing comments in response to 
such report.  VSE Corp.--Recon. and Entitlement to Costs, B-258204.3; 
B-258204.4, Dec. 28, 1994, 94-2 CPD  para.  260.  The purpose of section 
21.8(e)--to encourage agencies to take corrective action in response 
to meritorious protests before protesters have expended additional 
unnecessary time and resources pursuing their claim--was served here.  
See Boaz Towing, Inc.--Entitlement to Costs, supra.   

The request is denied.

Comptroller General
of the United States