TITLE:  East Bay Elevator Company, Inc.--Costs, B-286315.2, July 26, 2001
BNUMBER:  B-286315.2
DATE:  July 26, 2001
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East Bay Elevator Company, Inc.--Costs, B-286315.2, July 26, 2001

Decision

Matter of: East Bay Elevator Company, Inc.--Costs

File: B-286315.2

Date: July 26, 2001

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

Thomas Y. Hawkins, Esq., General Services Administration, for the agency.

Paul I. Lieberman, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Request for reimbursement of protest costs based on agency delay in
implementing promised corrective action is denied where the issues raised by
the protester were not clearly meritorious, and the agency determined to
take corrective action because of its concern with a matter that was not
raised in the protest.

DECISION

East Bay Elevator Company, Inc. requests that we recommend that it recover
the costs, including attorneys' fees, incurred in connection with its
protest challenging the award of a contract for elevator maintenance
services to Star Elevator, Inc. under request for proposals (RFP) No.
GS-09P-00-KSC-0086, issued by the General Services Administration (GSA).

We deny the request.

On September 20, 2000, East Bay filed its underlying protest alleging that
the award to Star was improper because GSA had failed to conduct meaningful
discussions and had erroneously determined that Star satisfied a specialized
experience requirement contained in the RFP. During the development of the
protest, GSA's counsel advised our Office in a telephone conference, which
included protester's counsel, that GSA intended to take corrective action
because the source selection plan did not contain objectively stated
standards for evaluating the technical proposals. Subsequently, prior to the
due date for the agency report, GSA advised our Office that it "became aware
of a potential defect in the evaluation of proposals," and that while it
"disputes the grounds for protest raised by the protester, [GSA] has
determined that it shall re-evaluate the offers on account of the more
recently discovered issue." Agency Corrective Action Letter, October 18,
2000, at 1. Thereupon, our Office dismissed the protest because GSA's
corrective action rendered the protest academic. By letter dated May 11,
2001, GSA advised East Bay that it had completed its reevaluation and again
determined to award to Star. [1] East Bay now seeks reimbursement of its
protest costs on the basis that GSA unduly delayed implementing the promised
corrective action.

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 protests. 4 C.F.R. sect. 21.8(e) (2001). Under this
provision, we will recommend recovery of protest costs where, based on the
circumstances of the cases, we conclude that the agency unduly delayed
taking corrective action in the face of a clearly meritorious protest.
Millar Elevator Service Co.--Costs, B-281334.3, Aug. 23, 1999, 99-2 CPD para. 46
at 2. We have recognized that the reimbursement of protest costs may be
appropriate where an agency does not timely implement promised corrective
action that precipitated the dismissal, even where the original
determination to take corrective action may otherwise have been sufficiently
prompt that payment of protest costs would not have been warranted. See
Louisiana Clearwater, Inc.--Recon. and Costs, B-283081.4, B-283081.5, Apr.
14, 2000, 2000 CPD para. 209 at 6. However, the underlying requirement that the
protester have filed a clearly meritorious protest remains a predicate for
reimbursement in these circumstances. Id.; Pemco Aeroplex, Inc.--Recon. and
Costs, B-275587.5, B-275587.6, Oct. 14, 1997, 97-2 CPD para. 102 at 5.

Here, the corrective action was taken as a result of the agency's concern
about the sufficiency of its source selection plan. In particular, while
preparing its agency report, GSA concluded that "the absence of objectively
stated standards [resulted in] technical evaluation scores that were
difficult to correlate to the scoring methodology established in the plan."
Agency Cost Request Report at 2. In advising that it was taking corrective
action, GSA specifically disputed the protest issue raised by East Bay, and
the protester had not raised the issue which caused the agency to take the
corrective action. In its comments on the agency's cost request report, East
Bay essentially argues that GSA's delay in implementing the promised
corrective action is sufficient by itself to warrant reimbursement. As to
the merits of its underlying protest, East Bay merely points out that there
is no indication that GSA would have taken corrective action without East
Bay having filed its protest, conceding that the merits of the protest had
not been established when the action was taken. Protester's Comments at 1.
East Bay's position is untenable, as it would effectively eliminate the
requirement for a clearly meritorious protest, which

is an unconditional prerequisite to a recommendation for the recovery of
costs. Millar Elevator Serv. Co.--Costs, supra, at 2-4.

The request for a recommendation that protest costs be reimbursed is denied.

Anthony H. Gamboa

General Counsel

Notes

1. East Bay has again protested this award raising virtually the identical
grounds that it raised in the original protest. Our Office will separately
issue a decision addressing the merits of these issues.