TITLE:  Myers Investigative and Security Services, Inc., B-287949.2, July 27, 2001
BNUMBER:  B-287949.2
DATE:  July 27, 2001
**********************************************************************
Myers Investigative and Security Services, Inc., B-287949.2, July 27, 2001

Decision

Matter of: Myers Investigative and Security Services, Inc.

File: B-287949.2

Date: July 27, 2001

Lawrence J. Sklute, Esq., Sklute & Associates, for the protester.

Scarlett D. Grose, Esq., General Services Administration, 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

Protest is sustained where agency chooses not to defend against the protest
and effectively concedes that the challenged evaluation and selection
decision were not properly done by acknowledging that no adequate
documentation of the agency's actions exists.

DECISION

Myers Investigative and Security Services, Inc. protests the award of a
60-day "bridge" contract by the General Services Administration (GSA) to
Industrial Loss Prevention, Inc. for guard services for federal buildings in
the Lumberton, North Carolina area.

We sustain the protest.

By letter dated May 30, 2001, GSA requested proposals for guard services at
various locations in Lumberton, North Carolina, for a 30-day base period,
with one 30-day option period. [1] The letter did not explicitly state the
basis for award, but requested that offerors provide prices only.
Specifically, the letter called for offerors to furnish "rates for
productive hours, additional hours and supervisory hours, and a cost
breakdown of how you obtained your rates." On May 31, GSA made award to
Industrial Loss Prevention for a 60-day period.

Myers contends that, while GSA solicited offers based on price alone, the
award decision was based on a consideration of both past performance and
price. Myers also asserts that GSA improperly evaluated the past performance
of the awardee and of Myers, and improperly failed to give Myers an
opportunity to respond to adverse past performance information that GSA
considered in the evaluation.

In a letter dated June 20, GSA states that it "has decided not to take
corrective action or submit a defense in the subject protest." Specifically,
GSA acknowledges that there were "many verbal exchanges" between the
offerors and the agency that were not documented; in the absence of such
documentation, GSA states, it is not in the government's interest to expend
further resources to defend the protest.

GSA states that corrective action-such as termination of the current
contract and recompetition-is not feasible because of the short duration of
the contract at issue and the nature of the services involved. Specifically,
GSA states that the services are performed at federal buildings in the
Lumberton area, that there have been numerous changes in contractor
personnel, and that further disruption in service would pose a security
risk. [2] GSA states that it instead will allow the current contractor to
complete the 60-day term of the challenged contract, and will then issue a
solicitation for a new interim contract, which will allow sufficient time
for GSA to re-evaluate offers for the statewide guard contract. GSA has
offered to reimburse Myers its costs of filing and pursuing the protest.
Myers declined GSA's offer, instead requesting that we issue a decision on
its protest.

We interpret GSA's decision not to defend against the protest, together with
its statement that adequate documentation of the actual evaluation and
selection does not exist, as, in effect, a concession that the evaluation
and award decision were not done properly. In the absence of any evidence to
show that the evaluation and award decision were properly done, and in view
of GSA's decision not to defend against the protest, we sustain the protest.
See, e.g., JAFIT Enterprises, Inc., B-266326, B-266327, Feb. 5, 1996, 96-1
CPD para. 39 at 2 (protest sustained where agency essentially conceded that its
sole-source award of "bridge" purchase orders was not authorized under any
statute, but did not take corrective action). Given that the 60-day contract
period has elapsed and performance has been completed, and that GSA has
awarded a new interim contract as promised, we recommend that GSA reimburse
Myers the costs it incurred in preparing its offer and in filing and
pursuing the protest. [3]

The protest is sustained.

Anthony H. Gamboa

General Counsel

Notes

1. GSA's solicitation here seeks guard services for an interim period during
which GSA completes re-evaluation of offers for a state-wide contract for
these services. That re-evaluation is the corrective action undertaken in
response to an earlier protest filed by Myers, B-287648, challenging the
award of the state-wide contract.

2. These are the same factors the agency relied on in its June 8 decision to
override the stay of performance of the challenged contract triggered by the
protest. In its override decision, GSA concluded that urgent and compelling
circumstances affecting the national security of the United States did not
permit staying performance of the contract pending our decision on the
protest. See 31 U.S.C. sect. 3553(d)(3)(C) (1994).

3. GSA also maintains that Myers should be limited to recovering protest
costs it incurred before June 19, the date on which Myers declined GSA's
settlement offer. We see no basis to impose such a limitation here. GSA
asserts that it was unreasonable for Myers to pursue the protest given that
the relief offered by GSA--protest costs and an opportunity to compete for
future awards--was the only relief available under the circumstances. We do
not agree with GSA's characterization of the facts. While the contract at
issue is of relatively short duration, termination and recompetition were
feasible at the time GSA made its settlement offer; the fact that GSA
decided it would not be prudent to take such actions does not change the
fact that they were an option at the time. In short, the agency's offered
corrective action did not render the protest academic; had it done so, we
would have dismissed this matter, and there would have been no protest
against which to incur further costs. We note, however, that our conclusion
that the protester's costs should not be limited to the time of the
settlement offer could be different under different circumstances. If, for
example, a protester incurred the costs of preparing extensive comments on
the substantive issues raised in its protest even after the agency had
conceded the merits of the protest, incurring those costs would not be
reasonable, and we would not recommend their reimbursement. Here, in
contrast, the protester's efforts after the settlement offer were apparently
minimal, with the only further submission to our Office being a 1-page
letter filed with our Office essentially requesting a decision on the
merits.