TITLE:  National Opinion Research Center--Costs, B-289044.3, March 6, 2002
BNUMBER:  B-289044.3
DATE:  March 6, 2002
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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.