TITLE:  Envirosolve--Costs, B-294420.3, February 17, 2005
BNUMBER:  B-294420.3
DATE:  February 17, 2005
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   Decision

   Matter of:   Envirosolve--Costs

   File:            B-294420.3

   Date:              February 17, 2005

   Carolyn Callaway, Esq., for the protester.

   James E. Hicks, Esq., Department of Justice, for the agency.

   John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protester is not entitled to the costs of filing and pursuing its protest
where the agency cancelled the solicitation shortly after the protester*s
filing of its supplemental protest, and the initial protest was not
clearly meritorious.

   DECISION

   Envirosolve requests that we recommend that it be reimbursed the costs of
filing and pursuing its protest concerning request for proposals (RFP) No.
DEA-04-R-0003, issued by Drug Enforcement Agency, Department of Justice,
for the disposal and management of hazardous waste seized by law
enforcement agencies at clandestine drug laboratories.  The protest, filed
on July 31, 2004, and supplemented on September 13, challenged the
agency*s exclusion of Envirosolve*s proposal from the competitive range. 

   We deny the request.

   The RFP provided for the award of up to 18 time-and-materials contracts,
based on contract areas, for the required services.  The contract areas
were either states, groups of states, or portions of states, chosen *based
on the amount of waste-generating activity in those areas.*  Contracting
Officer*s Statement at 1.  The RFP also listed for each contract area a
*level of activity* derived from historical data, and a contract center or
centers. 

   The agency received proposals from 10 offerors, including Envirosolve, the
incumbent contractor.  The agency found Envirosolve*s proposal, which was
submitted for each of the 18 contracts that could be awarded, deficient
for a number of reasons.  In this regard, the agency determined that the
proposal did not adequately describe Envirosolve*s technical approach or
propose adequate resources for accomplishing the required services.  For
example, the agency found that in a number of instances Envirosolve
proposed response facilities that were not located in the contract centers
set forth in the RFP, and downgraded Envirosolve*s proposal accordingly. 
The agency also found that Envirosolve*s proposal did not include a
written protocol addressing Envirosolve*s problem-solving capabilities as
required by the RFP, that the proposal*s small disadvantaged business plan
was lacking, and that there was insufficient information provided in the
proposal regarding certain of Envirosolve*s proposed treatment, storage,
and disposal facilities.  The agency excluded Envirosolve*s proposal from
the competitive range, and provided the protester with a letter detailing
the agency*s rationale for eliminating the protester*s proposal from the
competition.

   In its initial protest, filed with our Office on August 1, 2004,
Envirosolve challenged the reasonableness of the agency*s determinations
as reflected in the agency*s letter informing Envirosolve that its
proposal had been excluded from the competitive range.  Envirosolve*s
primary argument in its initial protest was that its proposal should not
have been downgraded for failing to propose response facilities located in
the contract centers listed in the solicitation. 

   On September 1, the agency submitted its report responding to
Envirosolve*s protest.  In its report, the agency provided detailed
explanations regarding each aspect of the agency*s evaluation that had
been challenged by Envirosolve in its protest letter.  The report
maintained that the agency*s determinations were reasonably based, and
that Envirosolve*s protest should be denied.  For example, the agency
argued that its downgrading of Envirosolve*s proposal because in a number
of instances it failed to propose response facilities in the contract
centers set forth in the RFP was reasonable and consistent with the terms
of the solicitation.  The agency noted that much of Envirosolve*s protest
effectively constituted a challenge to the agency*s choice of contract
centers, and that such arguments, raised for the first time after the
protester*s exclusion from the competitive range, were untimely.  The
agency included with its report relevant evaluation documents, such as the
technical evaluation panel report and competitive range determination.

   Envirosolve filed a supplemental protest with our Office based upon
certain documents provided by the agency in its report.  The protester
conceded in its supplemental protest that its initial *protest filed on
August 1 did not explicitly state the legal bases for Envirosolve*s
challenge,* and explained that *[f]or convenience, the original protest
grounds are restated here as well as the additional grounds recently
identified.*  Supplemental Protest at 1.  With regard to the supplemental
protest grounds, Envirosolve argued, based upon the evaluation documents
provided by the agency, that the evaluators had not followed the
evaluation scheme as set forth in the solicitation.  Specifically, the
protester contended that proposals were evaluated against certain
evaluation subfactors that were not listed in the solicitation, and that
the relative weights applied to the subfactors considered were
inconsistent with the terms of the solicitation.  Supplemental Protest at
2-5.  The protester also argued that the agency had failed to adequately
consider cost/price in determining which proposals to include and which to
exclude from the competitive range.  Id. at 7-8. 

   The agency informed our Office and the protester on September 17 that it
was canceling the solicitation.  Because the protester had received an
extension of time to submit comments, it had not yet submitted comments on
the agency report.  Our Office dismissed Envirosolve*s protest as academic
on September 21, and this request followed.

   Envirosolve requests that we recommend the reimbursement of its protest
costs, including reasonable attorneys* fees.  Our Bid Protest Regulations
provide that where a 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 attorney*s fees.  4 C.F.R. S 21.8(e) (2004).  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.  A protest is clearly meritorious
when a reasonable inquiry into the protester*s allegations would show
facts disclosing the absence of a defensible legal position (i.e., not a
close question).  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 such action as prompt and decline to consider favorably a request
to recommend reimbursement of protest costs.  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.  PADCO, Inc.--Costs, B-289096.3, May 3, 2002, 2002 CPD
P 135 at 3-4.

   The protester, who, as noted above, never submitted comments on the
agency*s report, provides virtually no explanation as to why it views its
initial protest as clearly meritorious.  The protester does not
substantively rebut, for example, the propriety of the agency*s assertion
that Envirosolve*s proposal was reasonably downgraded for proposing
response facilities that were not located in the RFP*s designated contract
centers.  Based on our review of Envirosolve*s initial protest, and
documents provided with the agency report, including the report itself and
the contracting officer*s statement, we fail to see how the protester*s
initial protest can be considered clearly meritorious. 

   The protester nevertheless argues that when the agency reviewed the record
in response to the initial protest, it should have realized that there
were errors in the evaluation record that were later pointed out by the
protester in its supplemental protest; that is, that the agency
erroneously used *weighted subfactors which had not been disclosed to the
offerors,* had failed *to include cost in establishing the competitive
range,* and had failed *to request relevant past performance
information.*  Protester*s Comments at 2.

   Where a protester raises different grounds in multiple submissions to our
Office, the filing of the initial protest establishes the appropriate date
for determining the promptness of the agency*s subsequent corrective
action only where there is a nexus between the protest grounds set forth
at that time and the corrective action.  J.A. Jones Mgmt. Servs.,
Inc.*Costs, B-284909.4, July 31, 2000, 2000 CPD P 123 at 3. 

   Here, the initial protest, which as conceded by Envirosolve failed to
*explicitly state the legal bases for Envirosolve*s challenge,* did not
object to the weight given to certain subfactors during the evaluation of
proposals, argue that the agency had improperly failed to consider cost
when establishing the competitive range, or assert that the agency had
failed to request relevant past performance information.  It was not until
Envirosolve*s counsel reviewed the underlying evaluation documents (that
had been provided under a protective order issued by our Office) that the
protester raised these bases of protest.  Although we recognize that
Envirosolve may not have been able to raise these bases of protest until
it saw the evaluation documentation, the fact remains that the agency
canceled the solicitation, rendering the protest academic, only 4 days
after Envirosolve*s supplemental protest was filed, and well before the
agency*s supplemental report was due.  As such, we need not determine
whether Envirosolve*s supplemental protest was clearly meritorious
because, even if it were, the agency took prompt corrective action under
the circumstances here.[1] 

   Our conclusion is not changed by the protester*s apparent argument that
the agency should have reviewed the underlying evaluation in response to
the initial protest and discovered the errors alleged by the protester in
its supplemental protest sooner.  Although the filing of a protest should
trigger the agency*s review of the procurement, the promptness of the
agency*s corrective action cannot reasonably be measured from the time of
the initial protest if the initial protest did not raise the issues that
led to the corrective action.  The existence of an error that an agency
arguably should discover when an initial protest is filed does not mean
that the agency has unduly delayed by not taking corrective action until
after the alleged error is actually identified in a later protest. 

   The request for a recommendation that the agency reimburse Envirosolve*s
protest costs is denied.

   Anthony H. Gamboa

   General Counsel

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   [1] DEA states that the other reason that it cancelled the solicitation
was the lack of competition obtained, which may have been caused by
various restrictive provisions included in the solicitation.