TITLE: Baine Clark--Costs, B-290675.3, September 23, 2002
BNUMBER: B-290675.3
DATE: September 23, 2002
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Baine Clark--Costs, B-290675.3, September 23, 2002
Decision
Matter of: Baine Clark--Costs
File: B-290675.3
Date: September 23, 2002
Joseph G. Billings, Esq., for the protester.
Daniel N. Hylton, Esq., Department of Agriculture, 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
Request for recommendation that protest costs be reimbursed based upon the
agency's corrective action is denied where the record does not establish
that the protest was clearly meritorious.
DECISION
Baine Clark requests that our Office recommend that it be reimbursed the
reasonable costs of filing and pursuing its protest challenging the terms
of the Department of Agriculture's proposed lease of a fixed-wing aircraft
to be used by the agency in support of its predator control activities in
the state of Wyoming.
We deny the request.
The western regional office of the Animal and Plant Health Inspection
Service, Wildlife Services, Department of Agriculture, provides various
programs, including predator control services, in Wyoming. In support of
its predator control services, the agency leased three aircraft for use in
Wyoming: two airplanes from Baine Clark and one airplane from the Wyoming
Wool Growers Association (WWGA). In April 1992, the agency decided that
it needed to lease a fourth aircraft for use in Wyoming and that it would
restrict this lease to an Aviat A-1B Husky, as the aircraft, in order to
test and evaluate that particular model.
On June 10, 2002, Baine Clark filed a protest and, after receipt of the
agency's report, a supplemental protest to our Office, complaining that
Agriculture had unduly restricted the lease to an Aviat A-1B Husky
aircraft, that the solicitation was insufficiently detailed to allow for
the preparation of quotes, and that the agency was biased in favor of the
WWGA. In defending its actions, Agriculture explained the basis for its
restriction to an Aviat A-1B Husky aircraft, and denied that its purchase
request was insufficiently detailed or that it was biased in favor of the
WWGA.
On August 1, we dismissed as untimely Baine Clark's allegation that the
solicitation was insufficiently detailed, because the record established
that the protester believed at the time it filed its initial protest that
the solicitation was insufficiently detailed but did not raise this issue
until its supplemental protest after the filing of the agency's report.
Also, on August 1, we requested additional information from Agriculture
concerning Baine Clark's remaining protest allegations. Prior to
submission of this additional information, Agriculture informed our Office
and the protester that it would take corrective action by amending the
solicitation to provide that lessors may quote an Aviat A-1B Husky
aircraft or equivalent. The agency stated that it took this corrective
action *to avoid additional delay.*
On August 13, based upon the agency's corrective action, we dismissed as
academic Baine Clark's complaint that the solicitation had been improperly
restricted to an Aviat A-1B Husky aircraft. Subsequently, on August 21,
we dismissed Baine Clark's remaining protest allegation that the agency
was biased in favor of the WWGA because Baine Clark's allegations did not
demonstrate that any of Agriculture's actions amounted to bias or that
these actions translated into action that unfairly or prejudicially
affected the protester's competitive position.
Baine Clark requests that we recommend that it be reimbursed its protest
costs because Agriculture had unduly delayed taking corrective action in
the face of the protester's assertedly meritorious protest, challenging
the restriction of the solicitation to the lease of an Aviat A-1B Husky.
Under the Competition in Contracting Act of 1984, our Office may recommend
that protest costs be reimbursed only where we find that an agency's
action violated a procurement statute or regulation. 31 U.S.C. S:
3554(c)(1) (2000). Our Bid Protest Regulations provide that where the
contracting agency decides to take corrective action in response to a
protest, we may recommend that the protester be reimbursed the costs of
filing and pursuing its protest, including reasonable attorneys' fees.
4 C.F.R. S: 21.8(e) (2002). This does not mean that costs should be
reimbursed in every case in which an agency decides to take corrective
action; rather, a protester should be reimbursed its costs only where an
agency unduly delayed its decision to take corrective action in the face
of a clearly meritorious protest. Griner's-A-One Pipeline Servs.,
Inc.--Entitlement to Costs, B-255078.3, July 22, 1994, 94-2 CPD P: 41
at 5; LB&M Assocs., Inc.,-- Entitlement to Costs, B-256053.4, Oct. 12,
1994, 94-2 CPD P: 135 at 4. Thus, as a prerequisite to our recommending
that costs be reimbursed where a protest has been settled by corrective
action, not only must the protest have been meritorious, but it also must
have been clearly meritorious, i.e., not a close question. Georgia Power
Co.; Savannah Elec. and Power Co.--Costs, B-289211.5, B‑289211.6,
May 2, 2002, 2002 CPD P: 81 at 5. A protest is *clearly meritorious*
where the record plainly establishes 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 P:
101 at 3.
Here, the protest was not clearly meritorious. As described above, only
one of Baine Clark's protest allegations--its allegation concerning the
restriction of the lease to an Aviat A-1B Husky--was not dismissed by our
Office. Although it was in response to this allegation that Agriculture
took corrective action, we cannot say from the record before us that this
complaint was clearly meritorious.
Baine Clark argued that other aircraft (for example, the Aviat A-1) would
satisfy the agency's needs. Agriculture responded that other aircraft
that had been used by the agency, such as the Piper Super Cub, would not
meet the agency's needs because of that aircraft's shorter fuel range and
slower ferrying speed. The agency also stated that it had used the older
Aviat A‑1, modified for the agency's purposes, but the supplemental
type certificate (STC) from the Federal Aviation Agency allowing
Agriculture to use the A‑1 model would expire in 2004 and could not
be renewed. Agriculture stated that it restricted the solicitation to the
lease of the newer Aviat A‑1B Husky to allow the agency to test and
evaluate the aircraft prior to time when the older model could no longer
be flown. Baine Clark disagreed with the agency's assertion that the STC
for the Aviat A-1 would expire or could not be renewed.[1]
In response to the party's arguments during the protest proceedings, we
requested further information from the agency concerning, in part, the
agency's ability to continue to use the older Aviat A-1. Agriculture
elected to take corrective action (by opening the competition to an Aviat
A-1B Husky or equal) prior to providing additional information, which
resulted in the dismissal of this allegation. The record was not
completed with respect to this issue, and we find that there is not
sufficient information in the record to determine whether or not
Agriculture could continue to fly the Aviat A-1 after 2004. Moreover, it
is not clear in the record before us that the agency acted unreasonably in
restricting the solicitation to an Aviat A-1B to allow the agency to test
the capability of that aircraft, assuming that the agency could no longer
use the older Aviat A-1. From the record before us, we cannot say that
the agency prejudicially violated a procurement law or regulation.
The request for a recommendation that protest costs be reimbursed is
denied.
Anthony H. Gamboa
General Counsel
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[1] Baine Clark does not claim that the Piper Super Cub will meet the
agency's needs.