TITLE:  Louisiana Clearwater, Inc.--Reconsideration and Costs, B-283081.4; B-283081.5, April 14, 2000
BNUMBER:  B-283081.4; B-283081.5
DATE:  April 14, 2000
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Louisiana Clearwater, Inc.--Reconsideration and Costs, B-283081.4;
B-283081.5, April 14, 2000

Decision

Matter of: Louisiana Clearwater, Inc.--Reconsideration and Costs

File: B-283081.4; B-283081.5

Date: April 14, 2000

Kai David Midboe, Esq., Midboe, Guirard, Davis, Melton and Tarpley, for the
protester.

Edward Goldstein, Esq., U.S. Army Corps of Engineers, for the agency.

David A. Ashen, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Reimbursement of protest costs relating to protest of original evaluation
and to protest of subsequent reevaluation, undertaken after prior protest of
original evaluation led to corrective action, is recommended where agency's
implementation of initial corrective action failed to address a meritorious
issue clearly raised in the original protest, such that protester was put to
the expense of protesting a second time on the same ground.

DECISION

Louisiana Clearwater, Inc. requests that we reconsider our decision of
October 12, 1999 (B-283081.3), in which we dismissed Louisiana Clearwater's
protest against the results of a reevaluation of proposals undertaken by the
U.S. Army Corps of Engineers, which affirmed the award of a contract to
Chem-Spray-South, Inc. (CSSI), under request for proposals (RFP)
No. DACW29-99-R-0011 (RFP-0011), for aquatic vegetation control. In
addition, Louisiana Clearwater requests that we recommend reimbursement of
the costs of filing and pursuing its protest.

We deny the requests, but recommend reimbursement of the costs of filing and
pursuing Louisiana Clearwater's protests.

On April 9, 1999, the Corps's New Orleans District issued RFP-0011 for
aquatic vegetation control in Southern Louisiana through the application of
liquid herbicidal materials. A contract was awarded to CSSI (on June 9), and
Louisiana Clearwater filed a protest with our Office on June 23. In its
protest, Louisiana Clearwater argued in part that the Corps's evaluation of
offerors' experience, the most important of the five technical evaluation
factors, was inconsistent with the scoring approach set forth in the
solicitation. Specifically, Louisiana Clearwater noted that the RFP required
offerors to submit an "initial summarization" of their experience which

will be considered as the highest priority with the following subfactors
carrying a weight of descending importance.

. . . . .

SUBFACTORS OF FACTOR 1. EXPERIENCE.

The following factors will be considered along with FACTOR 1, in their order
of relative importance:

1. Federal Government contracts. . . .

2. State Government contracts. . . .

3. Local Government contracts. . . .

4. Commercial contracts or agreements. . . .

RFP sect. M.(ii). Louisiana Clearwater furnished with its protest a written
statement from the Corps of the evaluation scores which confirmed that, as
Louisiana Clearwater had been advised at its debriefing, the agency had
accorded equal weight in the evaluation to each type of contract experience.
Corps Letter to Counsel for Louisiana Clearwater (June 16, 1999). Louisiana
Clearwater argued that this equal weighting was inconsistent with the
solicitation statement that the types of experience were listed in
descending order of importance, such that federal contract experience was
more important than state experience, state experience more important than
local government experience, and local government experience more important
than commercial experience. In addition, Louisiana Clearwater asserted that
the evaluation of proposals otherwise was unreasonable; that the agency
improperly evaluated the awardee's ability to perform the contract; and that
one of the evaluators and another agency official were biased against it.

By letter dated July 8, the Corps advised our Office that the contracting
officer had "decided to take corrective action by conducting an independent
re-evaluation of the proposals." Noting that Louisiana Clearwater had
alleged bias on the part of an evaluator, the Corps stated as follows:

While the [contracting officer] has not concluded that the evaluation was
anything less than impartial, she has recognized that the mere appearance of
impropriety or impartiality can undermine the integrity of the government
procurement process . . . . Therefore, in an effort to remove any appearance
that would tend to [compromise] the objectivity and impartiality of the
procurement process in this case, the [contracting officer] has directed
that personnel from the U.S. Army Engineer District, Jacksonville [Florida],
perform an independent re-evaluation of the proposals in question.

Corps Letter to GAO 1 (July 8, 1999).

On July 12, our Office dismissed Louisiana Clearwater's June 23 protest on
the basis that the agency's determination to perform an independent
reevaluation of proposals using personnel from another engineering district
rendered the protest academic (B-283081, July 12, 1999). Louisiana
Clearwater subsequently informed our Office, in a July 16 request for
reconsideration, that it had been advised by an agency employee from the New
Orleans District that the Jacksonville District would also give equal weight
to each type of experience. We denied the request for reconsideration on
August 5. Although the protester asserted that this would perpetuate one of
the deficiencies on which its protest had been based, we concluded that the
mere anticipation of wrongful conduct on the part of evaluators
participating in the new, independent evaluation did not provide a basis for
reconsidering our decision that an agency determination to conduct an
independent re-evaluation rendered a protest of the original evaluation
academic. (B-283081.2, Aug. 5, 1999).

By letter dated August 23, the New Orleans District contracting officer
advised offerors that, although Louisiana Clearwater's proposal had received
the highest technical score in the reevaluation conducted by the
Jacksonville District, the technical equality of the proposals was such that
the difference between them did not warrant paying the significant cost
premium associated with Louisiana Clearwater's proposal, and CSSI's low cost
proposal therefore was deemed the most advantageous. On September 13,
Louisiana Clearwater challenged the re-evaluation in a protest to our
Office. Noting that it had been advised in its debriefing that the agency
again had accorded equal weight in the evaluation to each type of contract
experience, Louisiana Clearwater reiterated its argument that this was
inconsistent with the solicitation statement that the types of experience
were listed in descending order of importance. [1] In addition, Louisiana
Clearwater argued that the New Orleans District was biased against it.

The Corps responded to Louisiana Clearwater's protest by letter of September
28, informing our Office of its intention to take corrective action.
According to the Corps, "[t]he [contracting officer] confirmed that the
Jacksonville evaluation team weighted each subfactor equally. . . . Because
the evaluation team failed to weight these factors in descending order of
importance, the [contracting officer] has decided to return the proposals to
Jacksonville for further review." Corps Letter to GAO 1 (Sept. 28, 1999). In
this regard, the letter advised that the contracting officer

has directed the evaluation team in Jacksonville to develop a point system
that weights the subfactors in descending order of value . . . . With this
point system in place, the evaluation team will translate their previous
consensus evaluation scores into the new system so as to reflect their new
weighted values. Once the new scores have been determined, Jacksonville will
forward the scores to the [contracting officer]. The [contracting officer]
will then make a best value determination based upon the new scores and the
proposed prices and decide whether or not the award to [CSSI] should stand.

Id. at 1-2.

On October 12, we dismissed Louisiana Clearwater's September 13 protest on
the basis that the Corps's conclusion that the reevaluation was inconsistent
with the evaluation approach set forth in the solicitation, and its
resulting decision to reevaluate proposals (using a Jacksonville District
evaluation team) consistent with the stated evaluation approach--that is, in
accordance with Louisiana Clearwater's interpretation of the
solicitation--and decision to make a new best value determination, rendered
Louisiana Clearwater's protest academic. Further, we noted that Louisiana
Clearwater's argument (in a September 30 opposition to the Corps's motion to
dismiss its protest)--that reevaluation by a Jacksonville District
evaluation team would be insufficient to ensure fair and impartial
treatment--merely anticipated improper agency action, and thus was
speculative and premature, and that we will not question agency action on
the basis of such speculation. See Ervin and Assocs., Inc., B-279161 et al.,
Apr. 20, 1998, 98-1 CPD para. 115 at 5; VSE Corp.--Recon. and Entitlement to
Costs, B-258204.3, B-258204.4, Dec. 28, 1994, 94-2 CPD
para. 260 at 2.

In its request for reconsideration of our dismissal of its September 13
protest, Louisiana Clearwater again argues that the Corps's proposed
remedy--having a Jacksonville District evaluation team re-evaluate proposals
consistent with the stated evaluation approach of weighting the experience
subfactors in descending order of importance, and a new best value
determination by the New Orleans District contracting officer--would not
remedy the lack of fair and impartial treatment which Louisiana Clearwater
allegedly has received from the New Orleans District.

To prevail on a request for reconsideration, the requesting party must
either show that our decision contains errors of fact or law, or present
information not

previously considered that warrants the decision's reversal or modification.
4 C.F.R. sect. 21.14(a) (1999); Department of Housing and Urban Dev.--Recon.,
B-279575.2, Nov. 4, 1998, 98-2 CPD para. 105 at 2; Department of the
Army--Recon., B-271492.2, Nov. 27, 1996, 96-2 CPD para. 203 at 5. A request for
reconsideration that, as here, reiterates arguments made previously and
merely expresses disagreement with the prior decision does not meet the
standard for granting reconsideration. Thermal Combustion Innovators,
Inc.--Protest and Recon., B-279602.2, B-279602.3, Oct. 15, 1998, 98-2 CPD
para. 94 at 4; Gordon R.A. Fishman--Recon., B- 257634.4, Sept. 9, 1996, 96-2 CPD
para. 110 at 2-3. There thus is no basis for reconsidering our dismissal of the
September 13 protest. [2]

Louisiana Clearwater also requests that we recommend reimbursement of the
costs of filing and pursuing its protest. Our Bid Protest Regulations, 4
C.F.R. sect. 21.8(e), provide that where an agency takes corrective action in
response to a protest, we may recommend that the agency pay protest costs,
including attorneys' fees; however, we will make such a recommendation only
where the agency unduly delayed taking corrective action in the face of a
clearly meritorious protest. CSL Birmingham Assocs.; IRS
Partners--Birmingham--Entitlement to Costs, B-251931.4, B-251931.5, Aug. 29,
1994, 94-2 CPD para. 82 at 3.

We conclude that Louisiana Clearwater should be reimbursed its protest costs
relating to both its September 13 protest and its original, June 23 protest.

We have recognized that the reimbursement of protest costs may be
appropriate where an agency does not timely implement the promised
corrective action that prompted the dismissal of a meritorious protest; as
we have noted, the mere promise of corrective action, without reasonably
prompt implementation, has the obvious effect of circumventing the goal of
the bid protest system of effecting the economic and expeditious resolution
of bid protests. Pemco Aeroplex, Inc.--Recon. and Costs, B-275587.5,
B-275587.6, Oct. 14, 1997, 97-2 CPD para. 102 at 7-8; Commercial Energies,
Inc.--Recon. and Costs, B-243718.2, Dec. 3, 1991, 91-2 CPD para. 499 at 6.
Similarly, where, as here, an agency implements corrective action that fails
to address a meritorious issue raised in the protest that prompted the
corrective action, such that the protester is put to the expense of
subsequently protesting the very same procurement deficiency, the agency
action, even though promptly proposed, has precluded the timely, economical
resolution of the protest.

When an agency proposes corrective action, we consider it implicit that it
will undertake a good faith effort to address all issues raised by the
protester that are meritorious. Louisiana Clearwater's June 23 protest of
the Corps's failure to evaluate proposals consistent with the approach set
forth in the solicitation was meritorious on its face; a contracting agency
may not specify one evaluation approach in the solicitation and then, as
here, evaluate proposals using a different approach. See 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 5-6. Thus, when the Corps
proposed corrective action on July 8, there was every reason to assume that
it would correct the discrepancy between the announced evaluation approach
and the actual evaluation approach. The agency's failure to correct this
deficiency constituted a failure to promptly implement its proposed
corrective action, undermined the premise for our dismissal of Louisiana
Clearwater's June 23 protest--that the agency would address apparently
meritorious issues--and had the effect of requiring the protester to file a
second protest, thereby defeating our goal of resolving protests
economically and expeditiously. Accordingly, we think reimbursement of the
costs incurred in connection with the original protest--which subsequent
events have shown was not remedied by prompt corrective action--is
warranted.

In addition, we think reimbursement of the costs incurred in connection with
Louisiana Clearwater's September 13 protest also is warranted. While the
agency proposed corrective action more than 2 weeks before the due date for
the agency report in response to the September 13 protest, we do not think
this is the appropriate measure of promptness under the circumstances.
Rather, we think promptness must be determined in light of the fact that
this corrective action is the same remedy we presumed was encompassed by the
corrective action the agency proposed in response to the original protest.
Considering this fact, and the fact that the agency's failure to implement
the corrective action required Louisiana Clearwater to file a second
protest, thereby defeating our goal of resolving protests economically and
expeditiously, it is our view that the corrective action was not prompt.

In summary, we deny Louisiana Clearwater's request for reconsideration of
the dismissal of its September 13 protest, but recommend reimbursement of
its protest costs relating to the June 23 and September 13 protests. The
protester's certified claim for costs, detailing the time spent and costs
incurred, must be submitted to the agency within 60 days of receiving this
decision. 4 C.F.R. sect. 21.8(f)(1).

Comptroller General
of the United States

Notes

1. The agency's written debriefing of Louisiana Clearwater indicated that
its proposal had received all 5 possible points for federal contract
experience, none of the 5 possible points for state experience, 3 of the 5
possible points for local government experience, and all 5 possible points
for commercial experience. Post Award Debriefing of Louisiana Clearwater,
Inc. at 1.

2. In any case, as we noted in our prior decision, contracting officials in
negotiated procurements have broad discretion to take corrective action
where the agency determines that such action is necessary to ensure fair and
impartial competition, Patriot Contract Servs., LLC et al., B-278276.11 et
al., Sept. 22, 1998, 98-2 CPD para. 77 at 4; Rockville Mailing Serv., Inc.,
B-270161.2, Apr. 10, 1996, 96-1 CPD para. 184 at 4, and we will not object to an
agency's proposed corrective action where the agency reasonably concludes
that the award was tainted by a flaw in the procurement process, so long as
the corrective action proposed is appropriate to remedy the flaw. Aquidneck
Sys. Int'l, Inc., B-257170.2, Sept. 30, 1999, 94-2 CPD para. 122 at 4-5. The
action proposed here is appropriate to remedy the deficiency--the
misevaluation of past performance--the agency has identified. Although the
agency did not correct the problem as part of its corrective action in
response to the original protest, it remains that we will not assume that
the agency will act improperly in the future. It follows that Louisiana
Clearwater's argument that the proposed reevaluation will not ensure fair
and impartial treatment--which merely anticipates improper agency
action--does not furnish a basis to question the adequacy of the proposed
corrective action. Ervin and Assocs., Inc., supra; VSE Corp.--Recon. and
Entitlement to Costs, supra.