TITLE:  J&J/BMAR Joint Venture, LLP--Costs, B-290316.7, July 22, 2003
BNUMBER:  B-290316.7
DATE:  July 22, 2003
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J&J/BMAR Joint Venture, LLP--Costs, B-290316.7, July 22, 2003

   Decision
    
    
Matter of:   J&J/BMAR Joint Venture, LLP--Costs
    
File:            B-290316.7
    
Date:              July 22, 2003
    
Joan K. Fiorino, Esq., and John C. Dulske, Esq., Dulske & Fiorino, for the
protester.
Capt. Charles K. Bucknor, and Raymond Saunders, Esq., Department of the
Army, 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
    
Protester's request for a recommendation that it be reimbursed the cost of
filing an earlier protest challenging a cost comparison under Office of
Management and Budget Circular A-76 is denied where the agency did not
unduly delay implementing the promised corrective action that caused our
Office to dismiss the protest as academic.
DECISION
    
J&J/BMAR Joint Venture, LLP requests that our Office recommend that the
Department of the Army reimburse the firm the reasonable costs of filing
and pursuing its protest with respect to solicitation No.
DAKF23-01-R-0201.  This solicitation provided for a cost comparison
pursuant to Office of Management and Budget Circular A‑76 to
determine whether to retain in-house or contract out performance of Public
Works Business Center service at Fort Campbell, Kentucky.  We dismissed
the protest as academic on October 9, 2002 based on the Army's advice that
it was taking corrective action in the procurement.  J&J/BMAR contends
that it should be reimbursed its protest costs because the Army has not
timely implemented the promised corrective action.
    

   We deny the request.
    
The Army initially decided to retain in-house the Public Works Business
Center service at Fort Campbell after a cost comparison between J&J/BMAR
and the government's most efficient organization (MEO).  On September 5,
2002, subsequent to a decision on its administrative appeal, J&J/BMAR
protested to our Office, challenging the agency's conduct of the cost
comparison.  Prior to the filing of the agency's report on the protest,
the Army decided to take corrective action, which rendered the protest
academic.  Specifically, the Army stated that it would set aside the cost
comparison that was being protested, that it would reconvene the source
selection evaluation board (SSEB) and source selection advisory council
(SSAC) and appoint a new source selection authority (SSA), that the SSEB
would evaluate whether the technical performance plan (TPP) implementing
the MEO satisfied the performance work statement (PWS) (and if it did not,
the SSEB would take steps to ensure that the TPP satisfied the PWS), that
the TPP (once it satisfied the PWS) would be compared to the protester's
*best value* offer to ensure that the TPP offered the level and quality
reflected in the protester's proposal, and that the agency would perform a
new cost comparison.  On October 9, we dismissed the protest as academic.
    
J&J/BMAR argues that it should be reimbursed for its costs of filing and
pursuing the protest because the agency has unreasonably delayed
implementing the promised corrective action that caused us to dismiss as
academic J&J/BMAR's allegedly clearly meritorious protest.
    
Our Office may recommend that a protester be reimbursed the costs of
filing and pursuing a protest where the contracting agency decides to take
corrective action in response to the protest. 4 C.F.R. S: 21.8(e) (2003). 
Such recommendations are generally based upon a concern that an agency has
taken longer than necessary to initiate 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.  AAR Aircraft Servs.--Costs, B-291670.6,
May 12, 2003, 2003 CPD P: 100 at 5.  We will also award protest costs in
certain circumstances where an agency unduly delays the implementation of
promised corrective action that led to the dismissal of an earlier
protest.  See Commercial Energies, Inc.--Recon. and Declaration of
Entitlement to Costs, B-243718.2, Dec. 3, 1991, 91-2 CPD P: 499 at 6.  We
view the award of protest costs in such cases as appropriate because a
protest is not truly resolved until the agency implements the promised
corrective action that caused us to dismiss the protest.  Id.
    
Here, we find that the Army has not unduly delayed implementing its
promised corrective action.  In this regard, the agency states that it
reconvened the SSEB on November 1, 2002.  The SSEB reevaluated the
management team's TPP, which resulted in further discussions with the
management team and revisions to the TPP.  Between November 2002, and May
2003, the Army evaluated the TPP revisions, conducted further discussions
with the TPP, reconvened the SSAC, and provided briefings to the SSA
regarding the TPP.[1]  The Army argues that it has made reasonable
progress towards implementing the promised corrective action, particularly
given the *complexity of the A-76 process* and interruptions occasioned by
the recent conflict in Iraq.  In this regard, the agency states that Fort
Campbell is home to the 101st Airborne (Air Assault) Division, which was
mobilized and deployed to Iraq, and that both the SSA and members of the
SSAC (including the SSAC chair) were also deployed to Iraq.
    
This case is unlike that in Commercial Energies, Inc. and its progeny,
where we recommended that an agency reimburse the protester for its
protest costs because the agency, without adequate and reasonable
explanation, delayed implementing the promised corrective action that had
caused us to dismiss the protest as academic.  See Commercial Energies,
Inc., supra (5-month delay without implementation of corrective action and
without explanation); see also Pemco Aeroplex, Inc.--Recon. and Costs,
B‑275587.5, B-275587.6, Oct. 14, 1998, 97-2 CPD P: 102 (4-month
delay in promised revision of solictation without a meaningful explanation
for the delay).  Here, the Army took steps within 1 month of the date of
the dismissal of the protest to implement its promised corrective action,
and the record reflects the agency's continued steps towards conducting a
new cost comparison.  Moreover, we recognize that the conflict and
deployment of military forces in Iraq posed difficulties that slowed the
implementation of the agency's corrective action.  In sum, we find that
the Army has not unduly and unreasonably delayed the implementation of the
corrective action that caused us to dismiss J&J/BMAR's original protest as
academic.[2]  At the same time, since it has been 9 months since we
dismissed the protest, we expect that the agency will expedite its
implementation of the promised corrective action.
    
The request is denied.
    
Anthony H. Gamboa
General Counsel
    
    

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   [1] The agency, however, has not yet performed a comparative assessment of
the TPP and J&J/BMAR's best value offer, which the agency informed us it
expects to do in July 2003, and the Army states that it expects to make a
new cost comparison decision in August.
[2] Because we find that the agency had not unduly delayed implementing
its promised corrective action, we do not address J&J/BMAR's argument that
its protest was clearly meritorious.