TITLE:  Georgia Power
Company; Savannah Electric and Power Company--, B-289211.5;
B-289211.6, October 6,
2000
BNUMBER:  B-289211.5;
B-289211.6
DATE:  October 6,
2000
**********************************************************************
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective
Order.  This redacted version has been approved for public release.
Decision

Matter of:   Georgia Power Company; Savannah Electric and Power
Company--Costs

File:            B-289211.5; B-289211.6

Date:               May 2, 2002

David K. Wilson, Esq., Troutman Sanders, for the protester.
Steven W. Feldman, Esq., and Craig R. Schmauder, Esq., U.S. Army Corps of
Engineers, for the agency.
Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency unduly delayed taking corrective action until after submission of the
agency report and the protesters' comments in the face of clearly
meritorious protests that the agency did not, as contemplated by the
solicitation, reasonably evaluate whether the awardee's past performance was
for services similar in size, magnitude, and complexity to the solicitation
requirement; General Accounting Office recommends that the protesters be
reimbursed for the costs of filing and pursuing their protests.

DECISION

Georgia Power Company and Savannah Electric and Power Company request that
our Office recommend that the firms be reimbursed the reasonable costs of
filing and pursuing protests they filed, on October 19, 2001, challenging
awards made to Canoochee Electric Membership Cooperative by the U.S. Army
Corps of Engineers under request for proposals (RFP) No. DAC87-01-R-0005 for
the privatization of electric distribution services at Fort Stewart and
Hunter Army Airfield (AAF).  On December 12, 2001, after receipt of the
protesters' comments on the agency's report, the Corps took corrective
action in response to the protests.  Based upon the promised corrective
action, we dismissed the protests as academic.  The protesters contend that
the Corps unduly delayed taking corrective action in the face of clearly
meritorious protests.

We grant the protesters' requests and recommend that the agency reimburse
the protesters their reasonable costs of filing and pursuing the protests.

The RFP was issued pursuant to 10 U.S.C. sect. 2688 (2000) for the privatization
of electric distribution systems at Fort Stewart and Hunter AAF (two
separate military installations).  Under that section, the ?Secretary of a
military department may convey a utility system, or part of a utility
system, under the jurisdiction of the Secretary to a municipal, private,
regional, district, or cooperative utility company or other entity.?  10
U.S.C. sect. 2688(a); see Virginia Elec. And Power Co.; Baltimore Gas & Elec.
Co., B-285209, B-285209.2, Aug. 2, 2000, 2000 CPD para. 134 at 2.

The RFP provided for the award of one or more 50-year contracts for the
transfer of ownership of electric distributions systems at Fort Stewart and
Hunter AAF, and to obtain distribution services from the new owner(s) of the
systems.   RFP sect. B.  A detailed statement of work described the required
services.  Among other things, the contractor(s) would be

required to provide all electric distribution utility service(s) on a
24 hour, 365 days per year basis.  The Contractor, at its expense, [would be
required to] furnish, install, operate, and maintain all facilities required
to furnish the service hereunder.
RFP amend. 11, sect. C.1.  In addition, the contractor(s) were responsible for
financing all capital improvements necessary to maintain, modify, repair,
upgrade, and expand each system to meet the installations' utility
requirements.  Id.

The RFP provided for award(s) on the basis of an integrated assessment of
the following factors:  (1) technical approach, experience and capability;
(2) past performance; and (3) cost/price.  Factor (1) was stated to be more
important than factor (2), and factors (1) and (2) were stated to be
together significantly more important than factor (3).  Id. sect. M.II.
Offerors were informed that award would not necessarily be made based upon
only low price or high technical ratings.  Id. sect. M.I.A.  With respect to the
past performance factor, the RFP stated that:

The offeror's past performance will be evaluated for the quality of product
and service, timeliness of performance, cost control, safety, customer
satisfaction, the comprehensive nature of previous projects and of the
offeror's commitment to customer satisfaction.  Each offeror will be
evaluated on past performance under existing and prior
contracts/subcontracts for services similar in scope, magnitude, and
complexity to this requirement.
Id. sect. M.II.

Detailed proposal preparation instructions were provided with regard to
responding to each of the evaluation factors.  Id. sect. L.  With respect to the
second factor, past performance, the RFP requested, among other things,
references for ?a minimum of ten of the offeror's largest customers (by
demand capacity) and/or projects of similar scope,? and requested a ?list of
all system acquisitions in the last 10 years or all contracts and
subcontracts currently in process, which are of similar scope, magnitude,
and complexity.?  Id. sect. L.7(a), (b).

Offers were received from five firms, including Georgia Power, Savannah
Electric, and Canoochee, by the closing date for receipt of proposals, and
evaluated by the agency's source selection evaluation board (SSEB).  The
Corps included the proposals of Georgia Power, Savannah Electric, and
Canoochee in the competitive range, conducted discussions with these firms,
and received proposal revisions.  Contracting Officer's Statement at 5.  The
firms received the following evaluation ratings:[1]

                   Technical         Past                Cost/Price
                   Approach          Performance         (5-year total)

Fort Stewart

Canoochee          [Deleted]         [Deleted]           $[Deleted]

Georgia Power      [Deleted]         [Deleted]           $[Deleted]

Hunter AAF

Canoochee          [Deleted]         [Deleted]           $[Deleted]

Savannah Electric  [Deleted]         [Deleted]           $[Deleted]

Agency Report, Tab 22, Proposal Evaluation Summary Report, Sept. 27, 2001,
at 1.  The agency determined that, given the ?relatively small difference
between the offerors' ratings for Factor 1 and Factor 2,? award based on
Canoochee's low?priced proposal represented the best value to the
government.[2]  Contracting Officer's Statement at 5.

On October 19, 2001, Georgia Power and Savannah Electric protested to our
Office, challenging the agency's evaluation of Canoochee's proposals under
the past performance evaluation factor and the source selection decisions.
With respect to Canoochee's past performance, the protesters asserted that
?Canoochee does not have a history of providing service to customers on the
scale envisioned by the solicitation.?  Savannah Electric Protest at 6;
Georgia Power Protest at 6.

On October 24, the Corps requested that we summarily dismiss the protests
because they ?failed to state legally sufficient grounds to challenge the
award[s].?  Agency's Dismissal Request, Oct. 24, 2001, at 1.  With respect
to Canoochee's past performance rating, the Corps asserted that the
protesters' ?bare bones contention? that Canoochee did not have a history of
providing services to customers on the same scale envisioned by the RFP did
not establish the ?likelihood? of improper agency action.  Id. at 4-5.  In
an October 25 telephone conference, we denied the agency's dismissal
request.

Thereafter, on November 21, the Corps submitted its agency report, in which
it maintained that all of the protest grounds should be denied.  With
respect to the past performance rating, the Corps asserted in its Legal
Memorandum that Canoochee's proposal was properly rated as ?[Deleted],? on
the basis of Canoochee's many projects that singly and cumulatively had
requirements similar to those at Fort Stewart and Hunter AAF.  Agency's
Legal Memorandum at 5-8.

On November 30, the protesters filed their comments on the agency's report.
Among other things, the protesters complained that Canoochee did not, as
required by the RFP, provide [Deleted].  The protesters argued that
Canoochee did not have a single ?customer that shares the scope, magnitude
and complexity of the instant solicitation.?  Protesters' Comments at 7.
The protesters also contended that the agency's determination that there was
?an insignificant difference in the evaluation ratings for combined Factors
1 and 2 [was] . . . not supported by the facts and is unreasonable;? the
protesters contended that, in accordance with the RFP's best value award
scheme, they were entitled to awards on the basis of their superior
proposals.  Protesters' Comments at 3.

On December 10, we conducted a telephone conference with the parties to
discuss the adequacy of the record in this case.  With respect to the
evaluation of Canoochee's past performance, we informed the parties that we
did not see from our review of the contemporaneous evaluation record any
evidence that the agency had assessed whether Canoochee had past performance
under existing and prior contracts/subcontracts for services similar in
scope, magnitude, and complexity to this requirement, as required by the
RFP.  We also stated that [Deleted].  We asked whether the Corps had further
evaluation records or information to provide with respect to Canoochee
satisfying this requirement.  We also requested that the Corps reply to the
protesters' comments with respect to the awardee's past performance
evaluation.

On December 12, the Corps informed us and the parties that it was taking
corrective action in response to the protests.  Specifically, the agency
stated:

After reviewing the protests, the agency report, and the protesters'
comments on that report, the [Corps] is now taking corrective action in
response to the protest.  Our primary concerns relate to the past
performance evaluations.
The corrective action plan is to amend the RFP, and to hold discussions with
the competitive range proposers.  Thereafter, the Contracting Officer will
seek revised proposals.  In the meantime, the award will be held in place.
If the decision is to continue with [Canoochee], the award decision will be
confirmed.  If the decision is to go with other offerors, then [Canoochee's]
contract will be terminated for convenience.  All offerors will be treated
fairly during the recompetition and will be given a full opportunity to
obtain an award.
Agency's Letter to GAO (Dec. 12, 2001).

Based on the agency's proposed corrective action, we dismissed the protests
as academic on December 14, 2001.  Thereafter, in accordance with our Bid
Protest Regulations, 4 C.F.R sect. 21.8(e) (2001), the protesters requested that
we recommend reimbursement of their protest costs because the Corps had
unduly delayed taking corrective action in the face of the protesters'
meritorious protests.

The Corps generally disputes the protesters' contention that their protests
were clearly meritorious, stating that it ?relies on its previous and
present filings in this protest to support its position.?  Agency Reponse to
Protesters' Requests for Entitlement to Costs, Jan. 4, 2002, at 2.  The
Corps acknowledges, however, that it concluded from its own review of the
contemporaneous evaluation record that ?documentation of all the offerors'
past performance might have been questionable to support the award to
[Canoochee].?  Id.

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 a protester 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.  AVIATE L.L.C.,
B?275058.6, B-275058.7, Apr. 14, 1997, 97-1 CPD para. 162 at 16.  For a protest
to be clearly meritorious, the issue involved must not be a close question.
J.F. Taylor, Inc.?-Entitlement to Costs, B-266039.3, July 5, 1996, 96-2 CPD
para. 5 at 3.  Rather, the record must establish that the agency prejudicially
violated a procurement statute or regulation.  Tri-Ark Indus.,
Inc.--Declaration of Entitlement, B-274450.2, Oct. 14, 1997, 97-2 CPD para. 101
at 3.

Here, the record is devoid of evidence that the agency contemporaneously
evaluated whether Canoochee's past performance under existing and prior
contracts or subcontracts was for services similar in scope, magnitude, and
complexity to the RFP requirements.[3]  As noted above, the RFP provided for
a qualitative evaluation of the similarity of an offeror's past performance
to ?the scope, magnitude and complexity? of the RFP requirements.  See RFP
amend. 11, sect. M.II.  Also as noted, Canoochee's proposal was rated by the
SSEB as ?[Deleted]? under the past performance factor.  The record reflects
that this rating was primarily based upon the SSEB's [Deleted].  Agency
Report, Tab 22, Past Performance Questionnaires and Ratings, Sept. 27, 2001,
at 66-67.  Although [Deleted], they do not provide any information that the
services provided by the awardee were of size, complexity, and scope similar
to the RFP requirements.  We also find from our review that [Deleted].  In
sum, the record does not support the agency's determination that Canoochee's
proposal should be rated ?[Deleted]? under the past performance factor.

In contrast, in evaluating the protesters' past performance, the SSEB
specifically assessed whether the protesters' past performance was for
services of similar scope, magnitude, and complexity.  In fact, the SSEB
noted as evaluation strengths under the past performance evaluation factor
the protesters' performance of projects of similar size and complexity.  The
record reflects that the protesters' [Deleted] evaluation rating for past
performance was based, at least in part, upon the protesters' performance of
?projects of similar scope and complexity? (Georgia Power) and ?past
performance projects of similar scope and complexity (supply and [operations
and maintenance])? (Savannah Electric).  Agency Report, Tab 22, Past
Performance Questionnaires and Ratings, Sept. 27, 2001, at 62-65.

We find that Savannah Electric's and Georgia Power's protests were clearly
meritorious.  It is fundamental that offerors be advised of the basis upon
which their proposals will be evaluated and that agencies evaluate in
accordance with the stated evaluation criteria.  Competition in Contracting
Act of 1984 (CICA), 10 U.S.C. sect. 2305(a)(2)(A), (b)(1) (2000); Federal
Acquisition Regulation (FAR) sect.sect. 15.304(d), 15.305(a).  Here, the record
establishes that the agency's evaluation of Canoochee's past performance did
not comport with this standard because it did not consider whether
Canoochee's past performance was on contracts of similar size, scope and
complexity.

Moreover, the source selection official adopted the unsupported evaluation
findings of the SSEB to conclude that, considering the offerors' ratings
under all the technical evaluation factors, there was an insignificant
difference between the protesters' and awardee's proposals.  See Contracting
Officer's Statement at 5; Agency Report, Tab 24, Source Selection Decision
(Sept. 28, 2001).  Since the record does not support the finding that there
were insignificant technical differences between the awardee's and
protesters' proposals, the decision is inconsistent with 10 U.S.C.
sect. 2305(b)(1) and FAR sect.sect. 15.304(a) and 15.308, which require such decisions
to be based upon a comparative assessment of proposals against the
evaluation criteria stated in the solicitation.

The regulatory violations by the agency were prejudicial to the protesters
because the evaluation was not in accord with the announced evaluation
criteria and because [Deleted] was not considered in the source selection
decisions.  We also find that a reasonable agency inquiry into the protests
allegations would have disclosed the absence of a defensible legal position
and that by unduly delaying corrective action the Corps caused the
protesters to expend unnecessary time and resources to make further use of
the protest process to obtain relief.

The Corps nevertheless argues that we are without authority to recommend the
award of protest costs where a contracting agency takes corrective action
that results in the dismissal of the protest.  The Corps states that our
statutory authority to recommend the award of costs is predicated upon a
finding that a solicitation, proposed award, or award of a contract does not
comply with a statute or regulation.  See CICA, 31 U.S.C. sect. 3554(c)(1)
(1994).  The Corps contends that where an agency takes corrective action
that results in dismissal of a protest, our Office does not make the
required finding of a statutory or regulatory violation that would support a
recommendation for reimbursement of protest costs.  The Corps also argues
that section 21.8(e) of our Bid Protest Regulations, which states that where
a contracting agency decides to take corrective action in response to a
protest, we may recommend the award of protest costs, conflicts with our
statutory authority and is therefore invalid.  See 4 C.F.R. sect. 21.8(e).
Specifically, the Corps asserts that section 21.8(e) improperly permits our
Office to recommend the award of protest costs without finding a statutory
or regulatory violation.  Agency's Response to Protesters' Requests for
Entitlement at 2?7 (Jan. 4, 2002).

In matters concerning the interpretation of a statute, the first question is
whether the statutory language provides an unambiguous expression of the
intent of Congress.  If it does, the matter ends there, for the unambiguous
intent of Congress must be given effect.  Chevron U.S.A. Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).

As amended, CICA provides that:

If the Comptroller General determines that a solicitation for a contract or
a proposed award or the award of a contract does not comply with a statute
or regulation, the Comptroller General may recommend that the Federal Agency
conducting the procurement pay to an appropriate interested party the costs
of --
filing and pursuing the protest, including reasonable attorneys' fees and
consultant and expert witness fees; and bid and proposal preparation.
31 U.S.C. sect. 3554(c)(1).[4]  Thus, CICA unambiguously grants our Office the
authority to recommend the reimbursement of protest costs where we determine
that an agency's procurement action violates a statute or regulation.  In
our view, this includes where the determination of a statutory or regulatory
violation is made as part of our resolution of a protester's request for
entitlement to protest costs after an agency takes corrective action in
response to a protest--nothing in CICA prohibits such determinations.
Section 21.8(e) of our Bid Protest Regulations implements this authority,
providing, in pertinent part, that:

If the contracting agency decides to take corrective action in response to a
protest, GAO may recommend that the agency pay the protester the costs of
filing and pursuing the protest, including attorneys' fees and consultant
and expert witness fees.
4 C.F.R. sect. 21.8(e).

We agree with the Corps that our determination of a statutory or regulatory
violation is the linchpin of our authority under CICA and our Regulations to
recommend the reimbursement of costs under CICA.  When we first promulgated
the section of our regulations (then designated section 21.6(e)) to
implement our authority to

recommend the reimbursement of protest costs where an agency unduly delays
taking corrective actions, we noted:

Some commenters stated that the award of costs where corrective action is
taken is inconsistent with CICA, which authorizes GAO to award costs only
where it makes a determination sustaining a protest.  GAO agrees that mere
corrective action would not warrant an award of costs.  GAO will award costs
under 31 U.S.C. 3554(c)(1) (1988) only where it concludes that corrective
action is being taken because of a violation of a procurement statute or
regulation.
56 Fed. Reg. 3759, 3762 (Jan. 31, 1991).

Consistent with CICA and our Regulations, we have recommended the
reimbursement of protests only where agencies have taken corrective action
in response to protests that we determined were clearly meritorious. [5]  A
clearly meritorious protest is one that clearly would have been
successful--that is, it must involve a matter over which we have
jurisdiction and be filed by an interested party in a timely manner and
otherwise comply with the requirements of our Bid Protest Regulations, and
the record must establish that the agency prejudicially violated a
procurement statute or regulation.  See Tri-Ark Indus., Inc.--Declaration of
Entitlement, supra, at 3.  Conversely, we have not recommended the
reimbursement of protest costs where an agency has taken corrective action,
where we determined that the protest was not clearly meritorious.  See
Millar Elevator Serv. Co.--Costs, B?281334.3, Aug. 23, 1999, 99-2 CPD para. 46
at 2 (protest was not clearly meritorious, although the contracting agency
violated the Federal Acquisition Regulation, where the record did not
establish that the protester was prejudiced).  In finding that a protest was
clearly meritorious, we determine, in accordance with CICA, that the
agency's conduct of the procurement violated a statute or regulation to the
detriment of the protester.

The Corps nevertheless argues that section 21.8(e) of our Regulations is
invalid because it does not specifically state that we will recommend the
reimbursement of costs only where, as provided by CICA, we find a statutory
or regulatory violation.  We disagree.

To succeed in a challenge that a regulation is overly broad, which is
essentially what the agency is arguing here, the Corps must ?establish that
no set of circumstances exists under which the [regulation] would be
valid.?  Reno v. Flores, 507 U.S. 292, 301 (1993), citing United States v.
Salerno, 481 U.S. 739, 745 (1987).  In enacting CICA, Congress expressly
granted to the Comptroller General the authority to promulgate regulations
implementing the Act.  See 31 U.S.C. sect. 3555.  Regulations promulgated
pursuant to such an express delegation of authority ?are given controlling
weight unless they are arbitrary, capricious, or manifestly contrary to the
statute.?  Chevron, 467 U.S. at 844.

Here, section 21.8(e) provides only that, where a contracting agency decides
to take corrective action, we ?may? recommend that the agency reimburse
protester its protest costs.  Both at the time of this section's
promulgation and in our decisions since, we have consistently explained that
we will make such a recommendation only where an agency has unduly delayed
taking corrective action in the face of a clearly meritorious protest, that
is, where, as here, we determine that the agency has violated a statute or
regulation.  Although the Corps can fashion a hypothetical situation in
which section 21.8(e) may be read to be inconsistent with our grant of
authority under CICA, it does not show (or even attempt to show) that the
regulation is invalid in all applications.  In sum, we find that section
21.8(e) of our Regulations is not only not ?manifestly contrary? to CICA,
but is not in its application here (where we have determined that the Corps
has violated procurement statutes and regulations) outside our grant of
authority under CICA.  Accordingly, we find that section 21.8(e) of our
Regulations is valid.

Furthermore, recommending the reimbursement of protests costs where an
agency unduly delays taking corrective action in the face of a clearly
meritorious protest is consistent with the congressional intent behind the
statutory provision authorizing the reimbursement of costs.  Congress
believed that the prospect of protesters being reimbursed their bid protest
costs, where they established the prejudicial violation of statutes and
regulations, was necessary to enhance the effectiveness of the bid protest
process.  See H.R. Rep. No. 98-1157, 98th Cong., 2nd Sess. 24-25 (1984).
The reimbursement of bid protest costs is to relieve protesters of the
financial burden of vindicating the public interest as defined by Congress
in CICA.  Hydro Research Science, Inc.--Claim for Costs, B-228501.3, June
19, 1989, 89-1 CPD para. 572 at 3.  In this regard, the bid protest process, as
mandated by CICA, ?was meant to compel greater use of fair, competitive
bidding procedures 'by shining the light of publicity on the procurement
process, and by creating mechanisms by which Congress can remain informed of
the way current legislation is (or is not) operating.'?  Lear Siegler, Inc.,
Energy Prods. Div. v. Lehman, 842 F.2d 1102, 1104 (9th Cir.1988), quoting
Ameron v. U.S. Army Corps of Eng'rs, 809 F.2d 979, 984 (3rd Cir.1986).

The Corps also argues that under the United States Supreme Court's recent
decision in Buckhannon Bd. and Care Home, Inc. v. West Virginia Dep't of
Health and Human Resources, 532 U.S. 598 (2001), we may not recommend the
award of protest costs where an agency takes corrective action that results
in the dismissal of a protest.

The question presented in Buckhannon was whether a party, which through the
settlement of its lawsuit obtained ?the desired result? without a judgment
on the merits or court-ordered consent decree, could obtain attorneys' fees
and costs under the fee-shifting provisions of the Fair Housing Amendment
Act of 1988 (FHAA), 42 U.S.C. sect. 3601 et seq. (1994), and the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. sect. 12101 et seq. (1994).  Those
statutes provide, in pertinent part, that a ?court, in its discretion, may
allow the prevailing party . . . a reasonable attorney's fee and costs.?
Interpreting the express language of the statutes, the Court held that the
statutes limited recovery to a prevailing party and that to be construed a
prevailing party, the party must receive a judicially-created ?alteration of
the legal relationship of the parties.?  532 U.S. at 604.  That is, to be a
?prevailing party,? one must receive a decision on the merits or a
court-ordered consent decree.

The Corps argues that where an agency takes corrective action that results
in dismissal of the protest, the protester is not a ?prevailing party? and
therefore may not be reimbursed its protest costs.  The simple answer is
that unlike the FHAA and ADA, and other federal fee-shafting statutes, CICA
does not limit our authority to recommend the reimbursement of protest costs
to a ?prevailing party.?  Rather, as explained above, we may recommend the
reimbursement of costs to an ?appropriate interested party? where we
determine that an agency has violated statute or regulation, a determination
that we have made in this decision.

The Corps nevertheless argues that the term ?appropriate interested party?
in CICA means the same thing as a ?prevailing party,? as that term was
construed by the Court in Buckhannon.  We disagree.  The Court found that
the term ?prevailing party? that Congress chose to employ in other federal
fee-shifting statutes was ?a legal term of art.?  532 U.S. at 603.  CICA
does not use that term of art, and instead refers simply to an ?appropriate
interested party.?  CICA defines ?interested party? to mean ?an actual or
prospective bidder or offeror whose direct economic interest would be
affected by the award of the contract or by failure to award the contract.?
31 U.S.C. sect. 3551(2).  An ?appropriate? interested party would be a
?specially suitable, fit or proper? interested party.[6]  See Webster's New
Int'l Dictionary 106 (3rd ed. 1965).  There is nothing in the express
language of CICA that compels the conclusion that to be an ?appropriate
interested party? requires a ?judicially-mandated change in the relationship
of the parties,? as is required to be a ?prevailing party? within the
meaning of the ADA and FHAA.  To read CICA consistent with the agency's
arguments would require us to ignore the Court's underlying logic in
Buckhannon, wherein the Court's statutory interpretation was grounded upon
the statutes' express language.  We decline to do so, given CICA's plain
meaning.

We recommend that the protesters be reimbursed the reasonable costs of
filing and pursuing the protests, including those incurred here, i.e.,
requesting a recommendation for costs.  Jones/Hill Joint Venture--Costs,
B-286194.3, Mar. 27, 2001, 2001 CPD para. 62 at 13-14.  The protesters should
submit their claim for costs, detailing and certifying the time expended and
costs incurred, directly to the Corps within 60 days of receipt of this
decision.  4 C.F.R. sect. 21.8(f)(1).

Anthony H. Gamboa
General Counsel

-------------------------

[1] [Deleted].
[2] The contemporaneous evaluation record indicated that the agency
concluded that the protesters' and awardee's offers were ?technically equal?
under factors (1) and (2), [Deleted].  See Agency Report, Tab 23, Award
Recommendation, Sept. 28, 2001, at 7.
[3] As noted above, the Corps asserted in the Legal Memorandum filed in
response to the protests that Canoochee's proposal was properly rated as
?[Deleted],? on the basis of Canoochee's many projects that singly and
cumulatively had requirements similar to those at Fort Stewart and Hunter
AAF.  Agency's Legal Memorandum at 5-8.  This suggestion that Canoochee's
past performance was qualitatively evaluated in accordance with the RFP's
evaluation criteria is belied by the contemporaneous evaluation record that,
as explained below, shows that Canoochee's past performance was not
evaluated for similar size, scope, and complexity, as required.

[4] As originally enacted, CICA provided that if the Comptroller General
determined that an agency's conduct of a procurement violated a statute or
regulation, ?the Comptroller General may declare an appropriate interested
party to be entitled to? protests costs and bid or proposal preparation
costs.  CICA, Pub. L. No. 98-369, 98 Stat. 1175, 1202, sect. 2741.  The current
statutory language was adopted by Congress in the Federal Acquisition
Streamlining Act of 1994 (FASA), when this section was amended to provide
that the Comptroller General may ?recommend? that the contracting agency
reimburse an interested party its protest costs and bid or proposal costs.
FASA, Pub. L. No. 103-355, 108 Stat. 3243, 3289, sect. 1403 (1994).  This change
was intended to address questions that had been raised about the
constitutionality of the original language.  S. Rep. No. 103-258, at 8
(1994), reprinted in 1994 U.S.C.C.A.N. 2561, 2568.
[5] This is consistent with the agency's own authority to reimburse a
protester's costs where, in connection with a protest, the agency determines
that a solicitation, proposed award, or award does not comply with the
requirement of law or regulation.  See 41 U.S.C. sect. 253b(l (Supp. IV 1998);
see also Inter-con Sec. Sys., Inc.; CASS, a Joint Venture--Costs,
B-284534.7, B-284534.8, Mar. 14, 2001, 2001 CPD para. 54 at 4.
[6] It is a fundamental canon of statutory construction that words, unless
otherwise defined by the statute, will be interpreted consistent with their
ordinary, contemporary, common meaning.  State of California v. Montrose
Chem. Corp. of California, 104 F.3rd 1507, 1519 (9th Cir. 1997); GAO,
Principles of Federal Appropriations Law, vol. 1, at 2-61 (2d ed. 1991); see
Mallard v. United States District Court for the Southern District of Iowa,
490 U.S. 296, 301 (1989).