TITLE:  J. A. Jones Management Services, Inc.--Costs, B-284909.4, July 31, 2000
BNUMBER:  B-284909.4
DATE:  July 31, 2000
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J. A. Jones Management Services, Inc.--Costs, B-284909.4, July 31, 2000

Decision

Matter of: J. A. Jones Management Services, Inc.--Costs

File: B-284909.4

Date: July 31, 2000

William A. Roberts III, Esq., William Lieth, Esq., Kevin J. Maynard, Esq.,
and Eric W. Leonard, Esq., Wiley, Rein & Fielding, for the protester.

Sharon A. Jenks, Esq., Department of the Air Force, for the agency.

Paul E. Jordan, Esq., and Paul Lieberman, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

General Accounting Office declines to recommend that protester be reimbursed
its protest costs where agency promptly took corrective action in response
to a supplemental protest that, for the first time, identified alleged flaws
in the past performance evaluation which the corrective action was designed
to remedy.

DECISION

J. A. Jones Management Services, Inc. requests that we recommend that it be
reimbursed the costs of filing and pursuing its protest challenging the
award of a contract to Raytheon Technical Services Co. under solicitation
No. F64605-99-R-0013, issued by the Department of the Air Force for base
operating services at Johnston Atoll Air Force Base.

We deny the request.

The underlying solicitation, issued in July 1999, sought proposals to
provide base operating support services for the Johnston Atoll base, which
is used for demilitarization of certain chemical weapons. The solicitation
contemplated the award of an indefinite-quantity, fixed-price contract with
award fee, for a period of up to 7 years, including a 6-month base period
and all options. Proposals were to be evaluated on the basis of past
performance, technical, and price factors. The past performance and
technical factors, when combined, were significantly more important than
price. Award was to be made to the offeror whose proposal represented the
best overall value to the government.

Four offerors, including J. A. Jones and Raytheon, submitted proposals.
After evaluating the proposals and conducting discussions, the Air Force
obtained best and final offers (BAFO) from all offerors. J. A. Jones's
proposal was rated "very good" under the past performance factor and "low
risk" under all the technical sub-factors. Raytheon's proposal was rated
"exceptional" under the past performance factor and "low risk" under the
technical sub-factors. While the protester's price was lower than Raytheon's
price, the source selection authority (SSA) made a tradeoff determination
that Raytheon's outstanding past performance outweighed the associated price
premium.

In its initial protest, filed March 14, 2000, J. A. Jones alleged only that
the award decision lacked a rational basis for the determination that
Raytheon's superior past performance warranted the payment of a significant
price premium, since the Air Force had also concluded that there was little
doubt that J. A. Jones could successfully perform. Protest at 2, 10, 12. In
its April 7 agency report, the Air Force included the 18-page source
selection decision, but did not include the offerors' proposals or their
evaluations. The protester objected to this limited release of documents and
requested the proposals and evaluations. At the request of our Office, the
Air Force provided the past performance proposals and evaluations to J. A.
Jones on April 12. After reviewing these documents, the protester filed a
supplemental protest on April 17.

The supplemental protest for the first time questioned the propriety of the
past performance evaluation itself, alleging that it was conducted in an
irrational and clearly unequal manner, thus calling into question the
underlying basis for the award determination. Specifically, the protester
alleged that the agency failed to relate Raytheon's evaluated strengths to
the specific requirements of the contract and ignored Raytheon's identified
weaknesses, and that the SSA had not been apprised of certain strengths
associated with J. A. Jones's proposal. Upon review of the allegations
raised in the supplemental protest, the Air Force took corrective action on
May 4 by agreeing to re-evaluate the extant past performance information and
to make a new best-value determination based on the re-evaluation. Because
of this corrective action, our Office dismissed the initial and supplemental
protests as academic. [1] Thereupon, the protester filed this request that
we recommend that it be reimbursed the costs of filing and pursuing its
protest.

Pursuant to our Bid Protest Regulations, 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) (2000). This imposition of costs is not intended
as an award to prevailing protesters or as a penalty to the agency, but
rather is designed to encourage agencies to take prompt action to correct
apparent defects in competitive procurements. Wall Colmonoy
Corp.--Entitlement to Costs, B-257183.3, Nov. 16, 1994, 94-2 CPD para. 189 at 2.
Thus, where corrective action is taken in response to a protest, we will
recommend that a protester be reimbursed its costs only where, based on the
circumstances of the case, we determine that the agency unduly delayed
taking corrective action in the face of a clearly meritorious protest. Id.

Here, J. A. Jones argues that it is entitled to costs because the agency
unreasonably delayed in investigating the issues raised in its initial
protest. Instead, in the protester's view, the Air Force filed an agency
report which was inaccurate and incomplete because it "knowingly reiterated
the erroneous results of the past performance evaluation reported to the
SSA." Protester's Comments at 4. We do not believe the protester's criticism
of the agency report is warranted. In particular, based on the issues
actually raised in the protest initially filed by J. A. Jones, we do not
believe that the Air Force acted unreasonably by responding to that protest,
rather than taking corrective action at that time. Likewise, since its
corrective action was based on new grounds of protest first raised in the
supplemental protest, the Air Force did not unduly delay taking corrective
action.

Where, as here, a protester raises different protest grounds in multiple
submissions to our Office, the filing of the initial protest establishes the
appropriate date for determining the promptness of the agency's subsequent
corrective action only where there is a nexus between the protest grounds
set forth at that time and the corrective action. GVC Cos.--Entitlement to
Costs, B-254670.4, May 3, 1994, 94-1 CPD para. 292 at 5. The promptness of the
agency's corrective action is not measured from the protester's initial
protest where the initial protest did not identify the issue on which
corrective action is based. Henkels & McCoy, Inc., B-250875 et al., Feb. 24,
1993, 93-1 CPD para. 174 at 4. Here, the initial protest challenged the
reasonableness of the SSA's tradeoff determination, but did not challenge
the propriety or basis for Raytheon's evaluated superior past performance.
It was not until it reviewed the underlying evaluations that J. A. Jones
protested the propriety of the offerors' past performance ratings. We
recognize that J. A. Jones may not have been able to protest the ratings
until it saw the evaluation documentation. The fact remains, however, that
once J. A. Jones did challenge the underlying evaluation, the Air Force
promptly determined that the evaluation documentation was insufficient and
then took corrective action on May 4, 17 days after the supplemental protest
was filed, and well before the agency report was due. In our view, the
agency took prompt corrective action in the circumstances presented here.
[2]

Our conclusion is not changed by the protester's argument that the agency
should have reviewed the underlying evaluation in response to the initial
protest and, thus, should have discovered the evaluation errors sooner.
While the filing of a protest should trigger an agency's review of the
procurement, we believe, as explained above, that the promptness of the
agency's corrective action cannot reasonably be measured from the time of
the initial protest, if, as here, that protest did not raise the issue that
eventually led to the corrective action. The mere existence of an error
which an agency arguably should discover when one protest is filed does not
mean that the agency has unduly delayed by not taking corrective action
until after the alleged error is actually identified in a later protest.

The request for a recommendation that the agency reimburse J. A. Jones's
protest costs is denied.

Robert P. Murphy

General Counsel

Notes

1. Subsequent to J. A. Jones's filing of this request for costs, the Air
Force appointed a new business risk assessment group and re-evaluated both
offerors' proposals in the area of past performance based on existing
information. At the conclusion of the re-evaluation, the agency made a new
best value determination and again selected Raytheon's proposal for award.
After receiving notice of this award and a debriefing, J. A. Jones filed a
new protest with our Office, B-284909.5, which we are now considering.

2. As a general rule, so long as an agency takes corrective action in
response to a protest by the due date of its protest report, we regard such
action as prompt and decline to consider a request to recommend
reimbursement of protest costs. CDIC, Inc.,--Entitlement to Costs,
B-277526.2, Aug. 18, 1997, 97-2 CPD para. 52 at 2.