TITLE:  Advanced Environmental Solutions, Inc.--Costs, B-296136.2, June 20, 2005
BNUMBER:  B-296136.2
DATE:  June 20, 2005
**********************************************************************
   Decision

   Matter of: Advanced Environmental Solutions, Inc.--Costs

   File: B-296136.2

   Date: June 20, 2005

   William E. Hughes, III, Esq., Whyte Hirschboeck Dudek S.C., for the
protester.

   Michael J. O'Farrell, Jr., Esq., and Major Rebecca R. Vernon, Department
of the Air Force, for the agency.

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

   DIGEST

   GAO will not recommend reimbursement of the costs of protest challenging
contract award based on improper evaluation of past performance, where
protest was rendered academic by agency's decision to terminate the
contract and make a new award decision in response to Small Business
Administration's decision that awardee was not eligible for award. 

   DECISION

   Advanced Environmental Solutions, Inc. (AES) requests that our Office
recommend that the agency reimburse AES's reasonable costs of filing and
pursuing its protest of a contract under solicitation No.
FA8101-05-R-0003, awarded to Eason Enterprises OKC LLC by the Department
of the Air Force to transport and dispose of hazardous waste.

   We deny the request.

   The RFP, which was set aside for service-disabled, veteran-owned small
business concerns, provided for a "best value" award, considering
price/cost, past performance, and mission capability factors.  The
solicitation specified that the agency's source selection decision would
be based on a past performance/price tradeoff of those offers that were
determined to be technically acceptable. 

   The Air Force awarded the contract to Eason, and AES protested on March
28, 2005, raising challenges to Eason's technical acceptability and the
agency's past performance and price evaluation.  Our Office dismissed all
but the past performance allegation on April 20 because the dismissed
grounds failed to state a valid basis of protest within GAO's
jurisdication. 

   The Air Force filed its report in response to the protest and AES filed
comments responsive to the report on May 10.  On the very next day, the
agency notified our Office that the Small Business Administration (SBA)
had sustained a separately filed protest challenging Eason's small
business status and eligibility for award.  As the Air Force advised:

   Based upon this decision, the Agency is in the process of considering
whether the award to Eason should be terminated, which would in the Air
Force's view render AES' current GAO protest (B-296136) academic or moot.

   Facsimile Transmittal from Air Force to GAO, May 11, 2005, at 1.  The next
day, the agency notified our Office that "in light of the SBA's decision,
the Contracting Officer has decided to terminate the award previously made
to Eason."  The agency also stated that it "intend[ed] to re-open
discussions, request revised proposals, conduct evaluations of such
revised proposals, and then make a new award decision, including a new
Performance Price Tradeoff with Technical Acceptable Determination, if
necessary."[1]  Letter from Air Force to GAO, May 12, 2005, at 1;
Facsimile Transmittal from Air Force to GAO, May 13, 2005, at 1.  Our
Office dismissed the protest as academic on May 13.

   AES requests that our Office recommend that the Air Force reimburse its
reasonable costs of filing and pursuing the protest.  AES contends that
the SBA's decision did not "require the extensive corrective action taken
by the agency," and that the announced corrective action--which included
seeking revised proposals and performing a new evaluation--was in response
to its clearly meritorious protest.

   Our Office may recommend that an agency reimburse a protester its protest
costs 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, thereby causing the protester to expend unnecessary
time and resources to make further use of the protest process in order to
obtain relief.  4 C.F.R. Section 21.8(e) (2005); Shindong-A Express Tour
Co., Ltd.--Costs, B-292459.3, Mar. 25, 2004, 2004 CPD paragraph 75 at 5. 
However, where the agency action that rendered a protest academic does not
constitute corrective action in response to the protest, our Office will
not recommend reimbursement of protest costs.  Bionetics
Corp.--Entitlement to Costs, B-270323.3, Aug. 16, 1996, 96-2 CPD paragraph
70 at 5; H. Watt & Scott Gen. Contractors, Inc.--Request for Declaration
of Entitlement to Costs, B-257776.3, Apr. 6, 1995, 95-1 CPD paragraph 183
at 2-3; Loral Fairchild Corp.--Entitlement to Costs, B-251209.2, May 12,
1993, 93-1 CPD paragraph 378 at 2.

   Here, the Air Force made clear that it was terminating the contract in
response to the SBA's decision, and not due to protest issues pending
before our Office.  While AES hypothecates that this was not the reason
for the agency's initiation of corrective action, as evidenced by the
agency's decision to reopen discussions, AES has provided no basis for us
to conclude that the corrective action was not the direct result of the
adverse size determination regarding Eason.[2]  Since the agency did not
take corrective action in response to AES's protest and AES's protest was
not sustained, there is no basis for recommending that the agency
reimburse AES its protest costs.

   The request is denied.

   Anthony H. Gamboa

   General Counsel

   ------------------------

   [1] In its report in response to AES's request for costs, the Air Force
now states that it has been apprised that Eason has appealed the SBA size
determination and that the agency's current position is that it would
reinstate Eason's contract without conducting any further discussions or
making a new award decision if that firm's size appeal is successful.  If
the Air Force in fact does not undertake its previously proffered
corrective action, on which basis we dismissed AES's protest as academic,
AES would be entitled to have its prior protest reinstated, provided it
timely files a protest of the agency's failure to implement the corrective
action.

   [2] The agency explains that its decision to re-open discussions was based
on an incorrect belief that offers had expired, a concern that the change
in performance period caused by the GAO stay of performance may require
pricing changes, and because the contracting officer "felt that AES would
be pleased by the opportunity to re-open discussions and revise its
proposal."  Air Force Response to Request for Costs, June 10, 2005, at 2. 
The fact that the agency determined to broaden its corrective action, in
part, in an attempt to appease the protester does not alter the underlying
basis for corrective action in the first place, which was in response to
the SBA's decision.