TITLE:   Innovative Logistics Techniques, Inc.--Costs, B-289031.3, February 4, 2002
BNUMBER:  B-289031.3
DATE:  February 4, 2002
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Decision

Matter of: Innovative Logistics Techniques, Inc.--Costs

File: B-289031.3

Date: February 4, 2002

Frank K. Peterson, Esq., Michael R. Hatcher, Esq., and Craig A. Holman,
Esq., Holland & Knight, for the protester.

D.A. Ridgely, Esq, Department of the Army, for the agency.

Louis A. Chiarella, Esq., and James A. Spangenberg, 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 the agency promptly took corrective action in
response to a supplemental protest and comments on the agency report that,
for the first time, identified alleged flaws in the evaluation of quotations
which the corrective action was designed to remedy.

DECISION

Innovative Logistics Techniques, Inc. (INNOLOG) requests that we recommend
that it be reimbursed the costs of filing and pursuing its protests
challenging the award of a delivery order to MPRI under request for
quotations (RFQ) No. W73QKK-1180-0001, issued by the Defense Contracting
Command (formerly Defense Supply Service -- Washington) for weapon system
management and readiness support services.

We deny the request.

The Army issued the RFQ on July 26, 2001 to five vendors, including INNOLOG
and MPRI, under the Management, Organizational and Business Improvement
Services (MOBIS) Federal Supply Schedule (FSS) contract. The solicitation
sought quotes, including technical submissions, for weapon system management
and readiness support. The RFQ contemplated the award of a delivery order
for a 1-year period of performance, with four 1-year options.

The solicitation established three non-price factors: technical capability
and understanding of requirement, personnel qualifications, and past
performance.
The solicitation stated that "past performance [was] less important than
either technical capability or understanding the requirement." RFQ at 2. The
RFQ was silent as to the relative weight of personnel qualifications. The
RFQ also notified vendors that while price was less important than non-price
factors, it nevertheless remained a substantial factor. The solicitation
stated that award would be based on the quotation that represented the "best
value" to the government.

On August 1, prior to the due date for receipt of quotes, INNOLOG, by means
of an e-mail message, queried, "It is unclear how the government intends to
evaluate Factor 2: Personnel Qualifications. First, there is no indication
of its weight in the evaluation. . . . How will Factor 2 be weighted in the
overall evaluation?" Agency Report, Tab 12. The Army's response, which it
provided to all vendors, declared that "[i]n Factor 2, the Government will
look at individual qualifications, i.e., pertinent experience, education and
the like in our evaluation of personnel to arrive at an overall evaluation
for personnel." [1] Agency Report, Tab 9, Consolidated Questions and
Answers, at 1.

All five solicited vendors responded to the RFQ by the August 16 due date.
The Army evaluated the technical submissions of vendors, and then made award
to MPRI. [2] On September 27, following a meeting with the agency in which
it learned the reasons for its nonselection for award, INNOLOG filed a
timely protest with our Office.

INNOLOG raised three bases for its protest, one of which was that the agency
had "failed to evaluate [quotations] in a manner that was consistent with
the terms of the RFQ." Specifically, INNOLOG alleged that notwithstanding
the RFQ's heavy emphasis on non-price factors, on which the protester
detrimentally relied, the agency subsequently represented that award was
based on the lowest price among five technically acceptable quotes. [3]
Protest at 8-10.

On October 29, the agency filed its protest report with our Office. The Army
denied INNOLOG's general allegation that the agency had failed to evaluate
quotes in a manner that was consistent with the terms of the RFQ, and
refuted the specific issue that the contracting officer had improperly
considered price to be as important or more important than non-price factors
in making the award determination.

On November 8, INNOLOG filed a supplemental protest and comments on the
agency report. While not raised as a basis for protest (presumably because
it would be an untimely solicitation challenge), INNOLOG explicitly
identified the fact that the relative weight of the personnel qualifications
factor had never been indicated notwithstanding its preaward inquiry. The
protester also noted that in evaluating vendors' technical submissions, the
agency had actually treated the personnel qualifications factor as being of
equal importance to the technical capability and understanding of
requirement factor when in fact the RFQ had assigned no relative weight to
the personnel qualifications factor. Protester's Comments and Supplemental
Protest at 4-5, 13.

On November 16, 8 days after the protester's comments/supplemental protest
had been filed, the agency requested dismissal of the protests because it
had decided to take corrective action. The Army stated that it was taking
corrective action because the RFQ had failed to completely or accurately
inform vendors of the relative weights of non-price factors. [4] Agency's
Dismissal Request at 1. We dismissed the protests on November 20 because the
Army's decision to cancel the award to MPRI and reassess the agency's
requirements rendered the protests academic.

INNOLOG now requests that our Office recommend that the agency reimburse the
protester's costs of filing and pursuing the protests, including attorneys'
fees. INNOLOG argues that the agency did not take prompt corrective action,
as the initial protest did allege that the agency had failed to evaluate
quotes in a manner consistent with the RFQ, and that it had actually pointed
out the specific RFQ defect even before the receipt of quotes. The agency
opposes INNOLOG's request, arguing that corrective action was taken promptly
in light of when INNOLOG first identified in the course of the protest the
deficiency that became the basis for corrective action.

Our Bid Protest Regulations provide that where the contracting agency
decides to take corrective action in response to a protest, we may recommend
that the agency pay the protester the costs of filing and pursuing the
protest, including reasonable attorneys' fees. 4 C.F.R. sect. 21.8(e) (2001). We
will make such a recommendation 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. Oklahoma Indian Corp.--Claim
for Costs, B-243785.2, June 10, 1991, 91-1 CPD para. 558 at 2. Our rule is
intended to prevent inordinate delay in investigating the merits of a
protest and taking corrective action once an error is evident, so that a
protester will not incur unnecessary effort and expense in pursuing its
remedies before our Office. Professional Landscape Mgmt. Servs.,
Inc.--Costs, B-287728.2, Nov. 2, 2001, 2001 CPD para. 180 at __.

The promptness of the agency's action is measured relative to the time when
the protester identifies the issue that prompts the corrective action.
Where, as here, a protester introduces different issues in multiple
submissions to our Office, 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 the agency based its corrective
action. J.A. Jones Mgmt. Servs., Inc.--Costs, B-284909.4, July 31, 2000,
2000 CPD para. 123 at 3. The issue that INNOLOG's initial protest raised was
whether the agency's evaluation of the relative importance of price
vis-ï¿½-vis the non-price factors was consistent with the RFQ. It was not
until its November 8 submission that the protester noted that the agency had
evaluated personnel qualifications as of equal importance to technical
capability, notwithstanding the absence of an assigned relative weight for
the personnel qualifications factor. Once the Army reviewed that submission,
it determined that the solicitation was defective. Consequently, the agency
took corrective action on November 16, 8 days after the supplemental protest
was filed and before the supplemental agency report was due. In our view,
the agency took prompt corrective action under the circumstances presented
here. [5]

INNOLOG also argues that the promptness of the agency's corrective action
should be measured from the time that it first called the matter to the
agency's attention. The protester points to the fact that it unambiguously
asked the agency on August 1 how the personnel qualifications factor would
be weighted in the overall evaluation. INNOLOG contends that as the Army
knew or should have known of the defects in the relative importance of
non-price factors some 3ï¿½ months prior to taking corrective action on the
same, the agency unduly delayed taking corrective action. We disagree.

Our bid protest jurisdiction is limited by the Competition in Contracting
Act to written objections to a solicitation, proposed award, or award of a
contract filed with our Office. 31 U.S.C. sect.sect. 3551(1), 3552 (Supp. IV 1998).
Our authority to recommend payment of protest costs, including attorneys'
fees, extends to parties whose protests to our Office support a finding that
a procurement statute or regulation was violated. 31 U.S.C. sect. 3554(c)(1).
The provision in our Regulations providing for the possibility of a
recommendation that protest costs be reimbursed where an agency takes
corrective action in response to a protest with our Office is intended to
ensure fair treatment of protesters who make substantial investments of time
and resources to pursue clearly meritorious protests in this forum, but who
do not have the opportunity to recoup their costs because of agency
corrective actions. All Marine Servs., Ltd.--Entitlement to Costs,
B-270514.2, Feb. 13, 1996, 96-1 CPD para. 75. It is not intended to ensure the
fairness of agency-level processes occurring prior to the filing of a
protest with our Office. R.J. Sanders, Inc.--Claims for Costs, B-245388.2,
Apr. 14, 1992, 92-1 CPD para. 362 at 3. Quite simply, the fact that INNOLOG
earlier raised the defect with the agency is of no significance to our
determination whether the agency took prompt corrective action after INNOLOG
filed its protest with our Office.

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

Anthony H. Gamboa
General Counsel

Notes

1. The Army represents, and the protester does not deny, that INNOLOG took
no further action in response to the agency's answer here, but instead
submitted a quotation. Agency's Opposition to Protester's Application for
Costs at 3.

2. When it evaluated the vendors' technical submissions under the non-price
factors, the Army's technical evaluation team treated the technical
capability and understanding of requirement factor and the personnel
qualifications factor as equally important and, individually, more important
than the past performance factor. Agency Report, Tab 7, Technical Evaluation
Report, at 1.

3. In the factual background of its protest, INNOLOG restated the RFQ's
evaluation criteria without making reference to the fact that the personnel
qualifications factor had no relative importance assigned. Protest at 3-4.

4. The contracting officer stated that as a result of these problems she
could not determine whether or to what extent any or all vendors may have
been prejudiced in their technical submissions, so that she could no longer
be confident of her original source selection. Agency's Dismissal Request,
attach., Contracting Officer's Memorandum for the Record (Nov. 16, 2001), at
2.

5. 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 favorably a request to recommend
reimbursement of protest costs. See J.A. Jones Mgmt. Servs., Inc.--Costs,
supra, at 4.