TITLE:  Career Quest, a division of Syllan Careers, Inc.--Costs, B-293435.5, April 13, 2005
BNUMBER:  B-293435.5
DATE:  April 13, 2005
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   Decision

   Matter of:   Career Quest, a division of Syllan Careers, Inc.--Costs

   File:            B-293435.5

   Date:              April 13, 2005

   Darcy V. Hennessy, Esq., Moore Hennessy & Freeman, PC, for the protester.

   John E. Cornell, Esq., General Services Administration, for the agency.

   Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Request for reimbursement of protest costs incurred in connection with
filing of an initial protest, in response to which agency took corrective
action, is denied where corrective action was prompt and protest was not
clearly meritorious.

   DECISION

   Career Quest, a division of Syllan Careers, Inc. (CQ) requests that we
recommend that the General Services Administration (GSA) reimburse it
certain costs associated with filing and pursuing a protest in our Office
relating to request for proposals (RFP) No. TFTP-MN-03-R-0001, issued by
GSA pursuant to a cost comparison study under Office of Management and
Budget Circular A-76.

   We deny the request.

   The agency announced in August 2002 that it would perform an A-76 study in
connection with the operation of its National Customer Support Center for
Federal Supply Schedule users and, pursuant to that announcement, issued
the RFP in AprilA 2003.  CQ was selected as the private-sector concern
whose proposed cost would be compared to that of the agency's most
efficient organization (MEO) in the cost comparison.  The agency performed
its cost comparison and determined that performance in-house by the MEO
would be less expensive than contracting out for the requirement.  CQ
appealed the matter to the agency appeal authority (AAA), which affirmed
GSA's decision.  By letter dated December 5, 2003, CQ filed a protest in
our Office (B-293435) objecting to GSA's determination that it would be
less expensive to retain the requirement in-house.  Shortly thereafter,
prior to GSA's filing of its report in our Office, the agency advised that
it intended to take corrective action by reopening the agency appeal
process; accordingly, by decision dated December 30, we dismissed CQ's
protest as academic. 

   On April 14, 2004, GSA advised CQ that it had again determined, during the
reopened AAA procedure, that performance in-house would be less expensive
than contracting for the requirement.  By letter dated April 23, CQ filed
a second protest in our Office (B-293435.2), again challenging the
agency's decision.  Subsequently, on June 7, CQ filed a supplemental
protest (B-293435.3).  By decision dated August 2, we sustained CQ's
protest and recommended, among other things, that CQ be reimbursed the
costs of filing and pursuing the protest, including reasonable attorneys'
fees.  CQ submitted its certified claim to the agency in a timely manner,
requesting a total of $19,699 in protest costs--$17,214 in attorneys' fees
and $2,485 in company-incurred expenses.[1]  GSA has agreed to reimburse
$5,215 in attorneys' fees, and $2,006 in companya**incurred expenses,
incurred in connection with the filing of CQ's second (and supplemental)
protest--the protest that our Office sustained--for a total of $7,221. 

   CQ claims an additional $11,969 in attorneys' fees and $479 in company
expenses incurred in connection with CQ's administrative appeal to the AAA
and CQ's initial protest that led to corrective action.  In this latter
regard, CQ asserts that the agency's initial corrective action was
inadequate, necessitating its repeating the same arguments in its second
protest.   

   We note at the outset that, of the $11,969 in attorneys' fees claimed by
CQ, the record shows that $10,709 of the fees were incurred prior to GSA's
issuance of its initial AAA decision on November 28, 2003, that is, in
connection with CQ's pursuit of its administrative appeal.  Our Office
lacks authority to recommend reimbursement of these fees, since they were
not incurred in pursuit of a protest filed in our Office.  Rice Servs.,
Ltd.--Costs, B-284997.2, May 18, 2001, 2001 CPD P 88 atA 2-3.  Thus,
remaining at issue for our purposes are the claimed attorneys' fees of
$1,260 incurred subsequent to the issuance of the AAA decision, and
company expenses of $479, for a total of $1,739.

   Our Bid Protest Regulations, 4 C.F.R. S 21.8(e) (2004), provide that,
where an agency takes corrective action in response to a protest, we may
recommend that the agency pay protest costs; however, we generally will
make such a recommendation only where the agency unduly delayed taking
corrective action in the face of a clearly meritorious protest.  Georgia
Power Co.; Savannah Elec. and Power Co.--Costs, Ba**289211.5, B-289211.6,
May 2, 2002, 2002 CPD P 81 at 5.  Here, the agency promptly (i.e., prior
to the agency report due date) proposed corrective action in response to
the initial protest and, moreover, the protest grounds were not clearly
meritorious.  In this regard, we consider a protest to be clearly
meritorious when a reasonable agency inquiry into the protester's
allegations would show that the agency lacked a defensible legal position,
that is, that the protest does not involve a close question.  Information
Ventures, Inc.--Costs, B-294567.2, Nov. 16, 2004, 2004 CPD P 234 at 2. 
This was not the situation here.[2] 

   CQ has neither argued nor demonstrated that its initial protest was
clearly meritorious in the sense that it presented a prima facie case
that, without more, demonstrated a valid basis for our Office to sustain
its protest.  Rather, in order for us to reach a decision about CQ's
initial protest allegations, we would have had to further develop the
record--due to the agency's corrective action, neither its report nor the
protester's comments were filed--and would have needed to conduct
substantial further legal analysis.  In short, we cannot say that CQ's
initial protest presented what could reasonably be described as clearly
meritorious issues; it follows that there is no basis for recommending
reimbursement of CQ's protest costs.  Information Ventures, Inc.--Costs,
supra. at 3.

   The request is denied.

   Anthony H. Gamboa

   General Counsel

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   [1] All figures have been rounded to the nearest dollar.

   [2] We also have recommended reimbursement of protest costs where,
although the agency promptly proposed corrective action, a subsequent
protest was necessitated by the agency's failure to implement the promised
corrective action.  Louisiana Clearwater, Inc.--Recon. and Costs,
B-283081.4, B-283081.5, Apr. 14, 2000, 2000 CPD P 209 at 5.  However, in
this circumstance too, the record must show that the protest was clearly
meritorious.