TITLE:  QuanTech, Inc.--Costs, B-291226.3, March 17, 2003
BNUMBER:  B-291226.3
DATE:  March 17, 2003
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QuanTech, Inc.--Costs, B-291226.3, March 17, 2003

   Decision
    
    
Matter of:    QuanTech, Inc.--Costs
    
File:             B-291226.3
    
Date:              March 17, 2003
    
    
Roy Goldberg, Esq., Sheppard, Mullin, Richter & Hampton, for the
protester.
Richard S. Brown, Esq., Department of Commerce, for the agency.
Katherine I. Riback, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
General Accounting Office declines to recommend that protester be
reimbursed its protest costs where the agency promptly took corrective
action in response to a supplemental protest.
DECISION
    
QuanTech, Inc. requests that our Office recommend that the firm be
reimbursed the reasonable costs of filing and pursuing its protest of an
award to ORC Macro International under request for proposals (RFP) No.
52-DGNF-2-9007, issued by the Department of Commerce, National Oceanic and
Atmospheric Administration, for the intercept portion of the Marine
Recreational Fishery Statistics Survey. 
    
We deny the request.
    
The solicitation contemplated the award of a contract for the intercept
portion of the 2002 to 2005 Marine Recreational Fishery Statistics Survey
to be conducted at marine fishing access points to collect individual
catch data, including exact species, total number of each species, and
length and weight measurements.  To assist in this effort, the agency
relies on state participation, often in the form of state subcontracts
with the intercept contractor under which the states use their own
resources to conduct intercept surveys.  Award was to be made on a *best
value* basis, considering price, technical and past performance
factors.    
    
After the agency received proposals and heard oral presentations in
response to the solicitation, the agency evaluated the proposals,
conducted discussions, and obtained revised final proposals from Macro and
QuanTech.  Macro was selected for award. 
    
In its initial protest of the award, filed September 3, 2002, QuanTech
primarily alleged that the agency essentially abdicated its role as source
selection authority and allowed certain states, which had inherent
conflicts of interest, to control the award selection.  The protester also
argued that the agency improperly evaluated past performance and the
proposed management approach, and alleged that the agency failed to hold
meaningful discussions in certain areas where QuanTech's proposal was
downgraded. 
    
In response, the agency filed a report on October 8 that responded to the
protester's allegations. 
    
Based on its review of the agency report, the protester filed a timely
supplemental protest on October 18, contending, among other things, that
the chairperson of the Technical Evaluation Committee (TEC) had an
individual conflict of interest.  Specifically, the protester maintained
that this person had, during the time period that proposals were
evaluated, left government employment and assumed a job with an outside
organization which was directly interested in this procurement, while
still maintaining her position on the TEC. 
    
On October 21, the protester filed comments that responded to the agency's
report, in which the protester for the first time detailed specific
instances where it found the discussions to be inadequate. 
    
On November 4, the agency advised our Office and the protester that it
intended to take corrective action in response to QuanTech's supplemental
protest.  Specifically, the agency said that it would reconstitute the
TEC, without the member that was alleged to have the conflict, and
reevaluate proposals, and that it would reopen negotiations, if the TEC
determined that such action was warranted. 
    
Our Office dismissed the protests as academic on November 7.  On November
19, QuanTech filed its request that it be reimbursed its protest costs
because the agency had assertedly unduly delayed in taking corrective
action on QuanTech's clearly meritorious protest.
    
Meanwhile, the agency reconstituted a new TEC, minus the allegedly
conflicted evaluator, to revaluate the proposals.  Based on this
reevaluation, the agency decided to reopen discussions.  On December 20,
QuanTech was sent 29 questions to respond to. 
    
On January 3, 2003, QuanTech supplemented its request that it be
reimbursed its protest costs, asserting that these questions demonstrated
that its initial protest, alleging a lack of meaningful discussions, was
clearly meritorious and that this corrective action, responding to that
protest, was unduly delayed.
    
Since QuanTech filed its prior protest, there has been no performance
under this protested contract.  However, the agency advises that it has
been noncompetitively obtaining some services that would have been covered
by this procurement from Macro, apparently under that firm's incumbent
contract.
    
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 agency pay the protester the costs of filing and
pursuing the protest, including reasonable attorneys' fees.  4 C.F.R. S:
21.8(e) (2003).  We will make such a recommendation 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. 
Oklahoma Indian Corp.--Claim for Costs, B-243785.2, June 10, 1991, 91-1
CPD P: 558 at 2.  Our rule is intended to prevent inordinate delay in
investigating the merits of a protest and taking corrective action once an
error is evident, so that a protester will not incur unnecessary effort
and expense in pursuing its remedies before our Office.  Professional
Landscape Mgmt. Servs., Inc.--Costs, B-287728.2, Nov. 2, 2001, 2001 CPD P:
180 at 5.  The promptness of the agency's actions is measured relative to
the time when the protester identifies the issue that prompts the
corrective action.  Where, as here, a protester introduces different
issues in multiple submissions to our Office, the promptness of the
agency's corrective action is not measured from the protester's initial
protest, if that protest did not identify the issue on which the agency
based its corrective action.  J.A. Jones Mgmt. Servs., Inc.--Costs,
B‑284909.4, July 31, 2000, 2000 CPD P: 123 at 3. 
    
As explained above, QuanTech's initial protest concerned, among other
things, an alleged conflict of interest on the part of several states that
improperly affected the award selection, and the agency's alleged failure
to conduct meaningful discussions.  It was only in QuanTech's supplemental
protest that the allegation of a personal conflict of interest on the part
of the chairperson of the TEC was raised.  In response to this protest,
the agency took corrective action on November 4, 2002, just over
2 weeks after the supplemental protest was filed, and on the date that the
report on the supplemental protest was due.  As a general rule, so long as
an agency takes corrective action in response to a protest by the due date
of its protest report, we regard the action as prompt and decline to
consider favorably a request to recommend reimbursement of protest costs. 
Id. at 4.  While QuanTech argues that the agency should have realized that
this was a problem before QuanTech filed its supplemental protest, as
noted above, we measure the promptness of an agency's corrective action
from when the protester first raised the issue.  Id.   
    
In its January 3, 2003 submission, QuanTech maintained that the agency, by
virtue of asking questions in areas where QuanTech specifically asserted
no meaningful discussions had been conducted previously, has taken unduly
delayed corrective action in response to QuanTech's initial protest, filed
September 3, 2002, which alleged, among other things, that the agency
failed to conduct meaningful discussions.  The agency responds that its
corrective action responsive to QuanTech's protest was appointing the new
TEC, and that the new TEC decided to reopen discussions primarily because
QuanTech's proposal had changed significantly since it was first
submitted, and that the TEC only asked the questions, which QuanTech now
points to as corrective action in response to its initial protest, *in an
abundance of caution, to avoid these becoming issues at a later time,*
even though they involved matters that the agency did not consider
significant to the award decision. 
    
The agency's explanation as to why it asked these questions seems
reasonable and within its discretion.  However, even assuming these
discussions constituted *corrective action,* this would not mean that
QuanTech's costs should be reimbursed; the corrective action must have
been in response to a *clearly meritorious* protest, i.e., not a close
question.  Baine Clark, B-290675.3, Sept. 23, 2002, 2002 CPD P: 166 at 2;
see Libby Corp.--Costs, B-258089.7, Dec. 13, 1995, 95‑2 CPD P: 257
at 4.  We do not consider QuanTech's protest contention that meaningful
discussions were not conducted to be clearly meritorious.  As indicated in
the agency report, the agency previously conducted discussions in the
general areas in which QuanTech alleged meaningful discussions were not
conducted.  While the protester asserted, in its comments on the agency
report, that the agency should have been much more specific in its
discussion questions--with specific questions asked concerning every
evaluated weakness in, or concern regarding, QuanTech's proposal--an
agency, to satisfy the requirement for meaningful discussions, need only
lead an offeror into the areas of its proposal requiring amplification or
revision;
all-encompassing discussions are not required, nor is the agency obligated
to *spoon‑feed* an offeror as to each and every item that could be
revised to improve its proposal.  ITT Fed. Sys. Intl. Corp., B-285176.4,
B‑285176.5, Jan. 9, 2001, 2001 CPD P: 45 at 7.  Based on our review,
it appears that it could be reasonably argued that the previous
discussions conducted with QuanTech were sufficient to lead QuanTech into
the general areas of its proposal requiring amplification or revision, and
that QuanTech's protest of this matter was therefore not clearly
meritorious. 
    
Finally, the protester asserts that we should look at the agency's
*evasion* of the requirement that performance of the improperly awarded
contract was to be stayed in deciding whether to recommend payment of
protest costs.  As noted above, although there has been no performance
under the protested contract, the agency is apparently acquiring some of
the solicited services from Macro under another contractual vehicle. 
However, the protester has not protested this action by the agency.  In
any event, we do not believe that how the agency is currently acquiring
these services creates a basis to recommend the payment of costs.
    
The request for a recommendation that costs be reimbursed is denied.
    
Anthony H. Gamboa
General Counsel