TITLE: National Opinion Research Center--Costs, B-289044.3, March 6, 2002 BNUMBER: B-289044.3 DATE: March 6, 2002 ********************************************************************** Decision Matter of: National Opinion Research Center--Costs File: B-289044.3 Date: March 6, 2002 Grace Bateman, Esq., and James M. McHale, Esq., Seyfarth Shaw, for the protester. Mike Colvin, Department of Health and Human Services, 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 General Accounting Office recommends that protester be reimbursed the reasonable costs of filing and pursuing protest challenging contracting agency's evaluation and selection process where the agency unduly delayed taking corrective action in response to protest which was clearly meritorious. The standard for cost reimbursement is presumed to have been met, absent persuasive evidence to the contrary, where the agency corrective action is taken in response to "outcome prediction" alternative dispute resolution conducted by GAO attorney after the agency report has been filed. DECISION National Opinion Research Center (NORC) requests that we recommend that it be reimbursed the costs of filing and pursuing its protest challenging the award of a contract to Westat, Inc., by the Agency for Health Care Policy and Research, Department of Health and Human Services (HHS), under request for proposals (RFP) No. AHRQ-01-0007, for the operation of a patient safety research coordinating center. We recommend that HHS reimburse NORC its protest costs. After learning of the award to Westat and receiving a debriefing from HHS, NORC timely protested to our Office challenging the propriety of the agency's proposal evaluation and award determination. HHS filed a report responsive to the protest and NORC filed comments on the agency's report. On December 12, 2001, after receipt of the comments, the General Accounting Office attorney handling the protests conducted an "outcome prediction" alternative dispute resolution (ADR) conference with the parties during which he advised the parties that it was his view that the protest was likely to be sustained, and explained the basis for this view. [1] Specifically, the GAO attorney expressed the view that the source selection decision was clearly flawed. The agency's source selection authority (SSA) had been provided with a recommendation by the program staff evaluation committee to make an award to NORC, which included a detailed supporting rationale. The SSA stated that she decided to award to Westat, instead, based primarily on a recommendation to that effect from an executive committee group, for which she indicated she had not (at the time of her award determination) received the written analysis that she had requested. The SSA provided only a conclusory explanation for making her award determination, and the agency report did not include any contemporaneous record of the underlying recommendation that was purportedly relied on. The agency report contained only a brief summary document prepared after the award decision had been made, in response to the protest, which purported to summarize the executive committee group's findings and recommendations. During the ADR conference the parties were informed that from our review of the record, including the parties' arguments, it was clear that there was a problem with the SSA's decision, which was conclusory and specifically dependent on a committee recommendation for which there was no contemporaneous documentation. The parties were informed that the likely outcome of the protest was that it would be sustained, and that the likely protest recommendation would be to reconsider the award determination and make a new determination that was reasoned and supported. On December 17, HHS informed our Office and the parties that the agency had decided to take corrective action in the form of appointing a new source selection authority from outside the agency, who would seek additional written recommendations from the evaluation committee and make a new source selection. As a result, on December 18, our Office dismissed NORC's protest as academic. NORC now requests that we recommend, pursuant to section 21.8(e) of our Bid Protest Regulations, the reimbursement of its costs of filing and pursuing the protest. 4 C.F.R. sect. 21.8(e) (2001). In response, HHS states that it does not oppose reimbursement, but seeks a formal recommendation in the matter from our Office. Where a procuring agency takes corrective action in response to a protest, our Office may recommend that the agency reimburse the protester its protest costs 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, thereby causing protesters to expend unnecessary time and resources to make further use of the protest process in order to obtain relief. Pemco Aeroplex, Inc.--Recon. and Costs, B-275587.5, B-275587.6, Oct. 14, 1997, 97-2 CPD para. 102 at 5. A protest is clearly meritorious when a reasonable agency inquiry into the protest allegations would show facts disclosing the absence of a defensible legal position. The Real Estate Ctr.--Costs, B-274081.7, Mar. 30, 1998, 98-1 CPD para. 105 at 3. A GAO attorney will inform the parties through outcome prediction ADR that a protest is likely to be sustained only if she or he has a high degree of confidence regarding the outcome; therefore, the willingness to do so is generally an indication that the protest is viewed as clearly meritorious, and satisfies the "clearly meritorious" requirement for purposes of recommending reimbursement of protest costs. Inter-Con Sec. Sys., Inc.; CASS, a Joint Venture-Costs, B-284534.7, B-284534.8, Mar. 14, 2001, 2001 CPD para. 54 at 3. There is no dispute that the protest was clearly meritorious and that the agency unduly delayed taking corrective action. [2] In our view, where, as here, the agency corrective action is taken in response to outcome prediction ADR conducted after the agency report has been filed, the standard for cost reimbursement is presumed to have been met, absent persuasive evidence to the contrary. Accordingly, we recommend that NORC be reimbursed the reasonable costs of filing and pursuing its protest, including those incurred here for requesting a recommendation for costs. Id. at 4. NORC should file its claim for costs with HHS, detailing and certifying the time expended and costs incurred within 60 days of receipt of this decision. 4 C.F.R. sect. 21.8(f)(1). Anthony H. Gamboa General Counsel Notes 1. In outcome prediction ADR, the GAO attorney handling a protest convenes the parties, at their request or at GAO's initiative, and informs the parties what the GAO attorney believes the likely outcome will be, and the reasons for that belief. A GAO attorney will engage in this form of ADR only if she or he has a high degree of confidence regarding the outcome. Where the party predicted to lose the protest takes action obviating the need for a written decision (either the agency taking corrective action or the protester withdrawing the protest), our Office closes the case. Although the outcome prediction reflects the view of the GAO attorney, and generally that of a supervisor as well, it is not an opinion of our Office, and it does not bind our Office, should issuance of a written decision remain appropriate. 2. We generally do not consider corrective action to be prompt where, as here, it is taken after the due date for the agency report. York Bldg. Servs., Inc.; Olympus Bldg. Servs., Inc.--Costs, B-282887.10, B-282887.11, Aug. 29, 2000, 2000 CPD para. 141 at 5.