TITLE:  Mapp Building Services--Costs, B-289160.2, March 13, 2002
BNUMBER:  B-289160.2
DATE:  March 13, 2002
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Decision

Matter of: Mapp Building Services--Costs

File: B-289160.2

Date: March 13, 2002

Walter Malyszek, Esq., Malyszek & Malyszek, for the protester.

Maria S. Kavouras, Esq., Environmental Protection Agency, for the agency.

Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Request for protest costs is denied where agency agreed to take corrective
action before protest report was due and there is no basis to find that it
did not promptly implement the promised corrective action.

DECISION

Mapp Building Services requests that we recommend reimbursement of its
protest costs incurred in connection with its protest of the award under
Environmental Protection Agency (EPA) solicitation No. PR-Cl-01-1222, for
janitorial services.

We deny the request.

Mapp protested the award on October 12, 2001, complaining that EPA failed to
hold meaningful discussions with Mapp and improperly evaluated proposals. On
October 31, before the due date for the agency report, EPA informed us that
it had found certain improprieties in the award, and would take corrective
action. The agency advised that, at a minimum, it would issue any necessary
solicitation amendments and reopen discussions. The agency also stated that
it would leave the contract awarded in place pending the results of the
evaluation of revised proposals. Consequently, we dismissed Mapp's protest
as academic on November 2. EPA received the dismissal on November 8, and
reopened discussions on January 15, 2002, with revisions due by January 28.
Mapp filed this request for costs on January 29.

Under our Bid Protest Regulations, we may recommend that a protester be
reimbursed the reasonable costs of filing and pursuing its protest,
including attorneys' fees, where the contracting agency decides to take
corrective action in response to a protest. 4 C.F.R. sect. 21.8(e) (2001). We
will do so, however, only where the contracting agency unduly delayed taking
corrective action in response to a clearly meritorious protest. Veda,
Inc.--Entitlement to Costs, B-265809.2, July 19, 1996, 96-2 CPD para. 27 at 2.
Generally, we consider agency corrective action prompt where it is proposed
before the agency's administrative report is due. Id. However, the proposed
corrective action also must be promptly implemented by the agency, and we
will recommend the award of protest costs where we find that it is not. Id.

Mapp maintains that it is entitled to recover its protest costs because,
although EPA informed our Office that it would take corrective action before
the report due date, it did not promptly implement the proposed corrective
action. Specifically, Mapp complains that the agency delayed taking any
action for 2ï¿½ months, until January 15 (when EPA sent Mapp a letter
outlining the corrective action and reopening discussions). Mapp claims this
delay was unreasonable and warrants our recommending that EPA pay its
protest costs.

This argument is without merit. EPA reports that, in the period leading up
to January 15, it reviewed the entire procurement process, including the
RFP, evaluations and discussions that had taken place, and prepared an
amendment that included changes to various clauses and provisions, including
the statement of work. We think agencies must be accorded a reasonable
amount of time to determine how best to proceed under circumstances such as
those here. Given the activities undertaken by EPA, we do not think the
delay that occurred before continuing the procurement here constituted an
unreasonable delay.

Mapp also requests that it be reimbursed the costs it incurred in preparing
the proposal it submitted in response to the solicitation. However, our
Regulations do not provide for recovery of such costs where an agency has
taken corrective action. See 4 C.F.R. sect. 21.8(e); Moon Eng'g Co.,
Inc.--Request for Declaration of Entitlement to Costs, B-247053.6, Aug. 27,
1992, 92-2 CPD para. 129 at 7. Moreover, we generally will not recommend payment
of proposal costs where the protester will have the opportunity to compete
for the requirement under a reopened competition. Id. at 7 n.7.

The request for costs is denied.

Anthony H. Gamboa

General Counsel