BNUMBER: B-278380.3
DATE: June 17, 1998
TITLE: QuanTech, Inc.--Costs, B-278380.3, June 17, 1998
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Matter of:QuanTech, Inc.--Costs
File: B-278380.3
Date:June 17, 1998
Alan M. Grayson, Esq., and Ira E. Hoffman, Esq., Grayson and
Associates, for the protester.
Terry Hart Lee, Esq., Department of Commerce, for the agency.
Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Request that General Accounting Office reinstate an earlier
protest and issue a decision on the merits after an agency cancels the
underlying solicitation--or, alternatively, recommend reimbursement of
the cost of pursuing that protest--is denied where the agency
responded to the protest by canceling its initial award shortly after
the protest was filed and reopening the competition, thus rendering
the earlier protest academic, prior to properly canceling the
procurement.
2. Protester is not eligible to recover its proposal preparation
costs where the solicitation was canceled before award was made, the
decision to cancel appears reasonable, and the protester expressly
declines to challenge the basis for the cancellation decision.
DECISION
QuanTech, Inc. requests that our Office recommend that it recover its
proposal preparation costs, and the costs of filing and pursuing its
earlier protest concerning request for proposals (RFP) No.
52-EANF-7-00025, issued by the Department of Commerce, National
Oceanic and Atmospheric Administration (NOAA), for fishery observers
in the northwest Atlantic Ocean. Alternatively, QuanTech asks that we
reopen its earlier protest and issue a decision on the merits.
We deny the request.
NOAA issued the RFP here on January 21, 1997, and made an initial
award to Atlantic Inspection Services, Inc. (AIS) on September 29.
QuanTech filed a protest of the award with our Office on October 14,
and a second disappointed offeror filed a protest shortly thereafter.
On November 3--less than 3 weeks after QuanTech filed its protest--the
agency agreed to take corrective action, and QuanTech withdrew its
protest. In its letter of November 3, the agency explained that it
intended to:
clarify the evaluation factors set out in the RFP (and to notify
offerors thereof), to notify offerors in the competitive range of
all material deficiencies and weaknesses in their proposals (both
technical and cost), re-open, schedule and hold meaningful
discussions, request and evaluate a new round of [best and final
offers (BAFO)] and then make an award.
After QuanTech's protest was withdrawn, the agency took the following
actions: it terminated the award to AIS on November 5; it twice
amended section M of the RFP, on December 4 and 16; it held
face-to-face discussions with all competitive range offerors,
including QuanTech, on January 14 and 15, 1998; and it requested and
received BAFOs, which were sent to the evaluation committee for review
on February 9. By memorandum dated March 19, however, the project
director for the fisheries effort here requested that the contracting
officer cancel the pending procurement because of significant changes
to the fisheries program since issuance of the original RFP. On March
20, the contracting officer canceled the RFP and this request
followed.
As a preliminary matter, there is no legal basis for our Office to
reopen QuanTech's protest and render a decision. The agency has
effectively conceded that the initial award decision was improper, and
terminated the contract awarded to AIS. Thus, the procurement
decision that QuanTech would have us consider no longer exists, and
any dispute about that decision is academic. Pemco Aeroplex,
Inc.--Recon. and Costs, B-275587.5, B-275587.6, Oct. 14, 1997, 97-2
CPD para. 102 at 5.
QuanTech also seeks reimbursement of its proposal preparation and
protest costs because the agency's decision to cancel the procurement
means that NOAA will not complete the claimed corrective action--i.e.,
the agency will not make award as it represented in its corrective
action letter of November 3 (quoted above). In its comments on the
agency report, QuanTech expressly concedes that an agency may properly
cancel an RFP when its needs change, and QuanTech does not challenge
the agency's decision to cancel here. Instead, it argues that since
no contract will be awarded, it should be paid both its proposal
preparation and protest costs. Again, we disagree.
With respect to protest costs, QuanTech correctly notes that our
Office may recommend that a protester be reimbursed the costs of
filing and pursuing a protest where the contracting agency decides to
take corrective action in response to the protest. 4 C.F.R. sec. 21.8(e)
(1998). Such recommendations are generally based upon a concern that
an agency has taken longer than necessary to initiate corrective
action in the face of a clearly meritorious protest, thereby causing
protesters to expend unnecessary time and resources to make further
use of the protest process in order to obtain relief. Pemco Aeroplex,
Inc., supra. The decision by the agency here to initiate corrective
action in response to QuanTech's protest was made less than 3 weeks
after the protest was filed. As a result, QuanTech was not required
to file comments in defense of its protest. Under these circumstances,
recovery of protest costs is not appropriate. See Dynair Elecs.,
Inc.--Declaration of Entitlement, B-244290.2, Sept. 18, 1991, 91-2 CPD para.
260 at 2 (where agency took corrective action within 4 weeks of
protest, agency did not unduly delay taking action and request for
costs is denied).
Also, the fact that the agency did not completely implement the
corrective action, standing alone, does not warrant payment of protest
costs. There is no evidence that at the time it offered the
corrective action, the agency had any intention of not carrying it out
fully; in fact, as noted above, the corrective action was carried out
substantially as promised, and at no point did the agency unreasonably
delay the competition. The only reason that the process was not
brought to conclusion with a new award is that due to changed
circumstances--i.e., significant changes in the fisheries program--the
agency concluded that the RFP no longer reflected its needs, and the
propriety of the cancellation is not in dispute. Since the agency
made a good faith effort to implement its corrective action, and there
is no evidence of undue delay, we have no basis to recommend that
QuanTech recover its protest costs.
With respect to its proposal preparation costs, QuanTech seeks more
than it is due. The protest--which apparently had merit--resulted in
a decision to reopen the competition, and QuanTech participated in
that reopened competition on the same footing as the other competitive
range offerors. Thus, QuanTech--and the others--faced equally the
potential danger of a proper decision to cancel the procurement.
The situation here is analogous to that in Orange Personnel Servs.,
Inc.--Recon.; Eastex Maritime, Inc.--Modification, B-256164.2,
B-256164.3, Jan. 18, 1995, 95-1 CPD para. 26. There, after our Office
sustained Eastex's protest and concluded that it should receive the
award, the agency properly canceled the underlying procurement. Since
the procurement was properly canceled, we concluded that the protester
should not recover its bid preparation costs, even though there was no
doubt that it was in line for award. Id. at 3. Here, QuanTech cannot
even claim--as did Eastex--that it was in line for award at the time
of the cancellation. Instead, QuanTech is no more entitled to payment
of its proposal preparation costs than any of the other competitive
range offerors. Absent a showing that the cancellation was
improper--and QuanTech does not maintain that it was--QuanTech is not
entitled to its proposal preparation costs. Id.
The request is denied.
Comptroller General
of the United States