TITLE:   Millar Elevator Service Company--Costs, B-281334.3, August 23, 1999
BNUMBER:  B-281334.3
DATE:  August 23, 1999
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Millar Elevator Service Company--Costs, B-281334.3, August 23, 1999

Decision

Matter of: Millar Elevator Service Company--Costs

File: B-281334.3

Date: August 23, 1999

Susan L. Schor, Esq., McManus, Schor, Asmar & Darden, for the protester.

Cameron Gore, Esq., Department of Veterans Affairs, for the agency.

Christine S. Melody, Esq., and Ralph O. White, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Request for reimbursement of protest costs is denied where agency decides to
take corrective action in response to protest but the issue on which the
corrective action was based is not clearly meritorious.

DECISION

Millar Elevator Service Company requests that we recommend that it recover
the costs, including attorneys' fees, incurred in connection with its
protest challenging award of a contract for elevator services to Centric
Elevator under request for proposals (RFP) No. 648-65-98, issued by the
Department of Veterans Affairs (VA).

We deny the request.

Millar filed its protest challenging the award to Centric on March 31, 1999,
arguing that VA failed to evaluate the proposals it received consistent with
the evaluation criteria in the RFP; failed to conduct meaningful
discussions; and, by awarding to Centric, procured services in excess of its
needs. The agency filed its report responding to the protest on May 3,
rebutting each of the arguments Millar made. Subsequently--and 1 day before
Millar's comments on the agency report were due--VA advised that it would
take corrective action. [1] In light of the agency's decision, we dismissed
Millar's protest as academic on June 1. Millar now requests that we
recommend that VA reimburse it for its protest costs.

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. 4 C.F.R. sect. 21.8(e) (1999). Under this
provision, we will recommend recovery of protest costs where, based on the
circumstances of the case, we conclude that the agency unduly delayed taking
corrective action in the face of a clearly meritorious protest.
Griner's-A-One Pipeline Servs., Inc.--Entitlement to Costs, B-255078.3, July
22, 1994, 94-2 CPD para. 41 at 5. For a protest to be clearly meritorious, the
issue involved must not be a close question. J.F. Taylor, Inc.--Entitlement
to Costs, B-266093.3, July 5, 1996, 96-2 CPD para. 5 at 3. Rather, the record
must establish that the agency prejudicially violated a procurement statute
or regulation. Tri-Ark Indus., Inc.--Declaration of Entitlement, B-274450.2,
Oct. 14, 1997, 97-2 CPD para. 101 at 3. The fact that an agency decides to take
corrective action does not establish that a statute or regulation clearly
has been violated. J.F. Taylor, Inc.--Entitlement to Costs, supra. As
explained below, based on the circumstances of the case here, we conclude
that it is not appropriate to recommend that the protester recover its
protest costs.

Section 2.5.1 of the RFP listed seven subfactors under the most important
technical evaluation factor, drives. Since the RFP was silent as to their
relative weights, the offerors reasonably assumed that the subfactors were
of equal weight. Foundation Health Fed. Servs., Inc.; Humana Military
Healthcare Servs., Inc., B-278189.3, B-278189.4, Feb. 4, 1998, 98-2 CPD para. 51
at 6. The record shows, however, that in performing the evaluation of
offers, the agency actually assigned different weights to the subfactors.
After filing its report on the protest, the agency decided to take
corrective action based on the failure to indicate in the RFP the relative
weights of the subfactors under the drives factor. [2]

While agencies are required to advise offerors of the relative weights of
significant subfactors, Federal Acquisition Regulation sect. 15.304(d), we would
have sustained the protest on this ground only if it were evident that
Millar had been prejudiced by the agency's failure to do so. See Lithos
Restoration, Ltd., B-247003.2, Apr. 22, 1992, 92-1 CPD para.  379 at 5-6
(prejudice is an essential element of a viable protest). The record shows
that Millar and Centric received identical point scores in six of the seven
technical subfactors at issue; given this equality, it is not clear that
Millar was prejudiced by the agency's failure to advise offerors that the
subfactors would not be equally weighted. In other words, it appears that
Millar's competitive standing relative to Centric would be the same whether
the subfactors were weighted differently--as was done in the actual
evaluation--or equally, as the RFP indicated.

Millar asserts that it was prejudiced, arguing that it would have revised
its proposal if it had known that VA was placing "so much emphasis" on the
training subfactor--the one subfactor of the seven under which Millar and
Centric received different scores. Third Affidavit of Steven R. Vining, Aug.
9, 1999, at para. 4. This assertion is simply not persuasive. The assumption
behind Millar's argument is that the training subfactor "was rated higher
than any of the other Drives subfactors." Protester's Comments, Aug. 10,
1999, at 1. This assumption is erroneous; in fact, the record shows that the
seven subfactors under the drives factor were listed in descending order of
importance, and that the first two subfactors listed were significantly more
important than the five other subfactors, including training. [3] Since
Millar asserts that it would have revised its proposal had it known that
training was "so heavily weighted," id. at 2, and since training in fact was
one of the less important subfactors, there is no basis to assume that
Millar would have materially altered its proposal had it been advised that
the subfactors were listed in descending order of importance.

Given that the existence of prejudice to Millar is, at a minimum, not
readily apparent, we conclude that the issue which prompted the corrective
action was a close question, and thus that the protest was not clearly
meritorious on this ground. J.F. Taylor, Inc.--Entitlement to Costs, supra.
Since a prerequisite to a

recommendation for the recovery of costs is that the corrective action be
taken in response to a clearly meritorious protest, there is no basis on
which to recommend that Millar recover its protest costs in this case. [4]

Comptroller General
of the United States

Notes

1. The agency orally advised Millar and our Office of its decision to take
corrective action by telephone call on May 20; the decision was confirmed in
writing by letter dated and received May 28.

2. As corrective action, the agency reissued the solicitation as an IFB,
with bids due on August 12.

3. Specifically, the subfactors and their respective weights in points were
as follows: harmonics (20); non-proprietary software (10); training (5);
availability of technical support (5); easy access to the drive (3); ease of
programming (2); and, easily serviced (2), for a total of 47 available
points. As stated above, Millar and Centric received identical scores under
all the subfactors except training, for which Millar received 4 of 5
available points and Centric received 5 points.

4. Another prerequisite to the recovery of costs is that the corrective
action be unduly delayed. Griner's-A-One Pipeline Servs., Inc.--Entitlement
to Costs, supra. The promptness of the agency's action is measured relative
to the time when the issue which prompts the corrective actions is raised.
Usually this is in the protest itself, although there are situations where
the dispositive issue does not become clear until later in the protest
process. See Tidewater Marine, Inc.--Request for Costs, B-270602.3, Aug. 21,
1996, 96-2 CPD para. 81 (corrective action taken shortly after dispositive issue
was first squarely drawn was not unduly delayed); Baxter Healthcare
Corp.--Entitlement to Costs, B-259811.3, Oct. 16, 1995, 95-2 CPD para. 174
(same). In this case it does not appear that the specific issue on which the
corrective action was based was raised in the initial protest. In fact,
Millar itself states that it first raised the issue in a telephone
conversation with VA counsel on May 13, after it received the agency report
and exhibits, and well after the protest was filed on March 31. Given that
the agency advised of its decision to take corrective action on May 20, only
1 week after the date on which Millar states that it raised the subfactor
weighting issue, it appears that the agency's decision to take corrective
action was not unduly delayed. Apparently recognizing that it actually could
not have raised this specific issue until after it received the agency
report and exhibits revealing how the agency had weighted the subfactors,
Millar argues that it was sufficient for it to have raised a related
issue--that the training subfactor was given more weight than the third
evaluation factor, construction impact. Protester's Comments, supra, at 3.
This assertion is not only factually incorrect--the record shows that the
training subfactor and the construction impact factor were each assigned 5
points--but it is clearly not the issue on which the corrective action was
based.