TITLE: B-297790.4, T Square Logistics Services Corporation--Costs, April 26, 2006
BNUMBER: B-297790.4
DATE: April 26, 2006
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B-297790.4, T Square Logistics Services Corporation--Costs, April 26, 2006

   DOCUMENT FOR PUBLIC RELEASE
   The decision issued on the date below was subject to a GAO Protective
   Order. This redacted version has been approved for public release.

   Decision

   Matter of: T Square Logistics Services Corporation--Costs

   File: B-297790.4

   Date: April 26, 2006

   Richard B. Oliver, Esq., and David J. Ginsberg, Esq., McKenna Long &
   Aldridge LLP, for the protester.

   Michael J. O'Farrell, Jr., Esq., Department of the Air Force, 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

   1. Government Accountability Office recommends that protester be
   reimbursed the reasonable costs of filing and pursuing protests where the
   agency unduly delayed taking corrective action in response to protests
   which were clearly meritorious as indicated by the fact that the
   corrective action was in response to "outcome prediction" alternative
   dispute resolution conducted by GAO attorney after the agency report has
   been filed.

   2. Where agency downgrades the protester's past performance to "little
   confidence" because it lacks experience in several functional areas
   covered by the solicitation and this directly resulted in a higher priced
   proposal being selected for award, and agency conducts discussions but
   does not mention to the protester this evaluated lack of experience, the
   agency has failed to conduct meaningful discussions.

   DECISION

   T Square Logistics Services Corporation requests that we recommend that it
   be reimbursed the costs of filing and pursuing its protests challenging
   the award of a contract to Data Monitor Systems, Inc., by the Department
   of the Air Force under request for proposals (RFP) No. FA6643-05-R-0006,
   for base operating support (BOS) services at Grissom Air Reserve Base,
   Indiana.

   We recommend that the Air Force reimburse T Square's protest costs.

   The RFP, issued June 6, 2005, contemplated the award of a combined
   fixed-price and time-and-materials contract for 1 base year with nine
   1-year options. The solicited BOS services included (1) base supply
   function, (2) motor vehicle management function, (3) traffic management
   function, (4) transient aircraft services, (5) recurring real property
   maintenance function, (6) fuels function, (7) airfield management
   function, and (8) meteorological function.

   The RFP provided for offerors to meet certain minimum qualification
   requirements, and to submit technical proposals addressing the program
   management/staffing and financial plan subfactors, which would be
   evaluated on a "technical acceptability" basis. The RFP provided that past
   performance was to be evaluated for "recency," that is, currently ongoing
   or completed within the last 3 years; "relevancy," based on the scope,
   magnitude, and complexity of the contracts, including the extent of
   performance by teaming partners and subcontractors; and quality of
   performance on referenced contracts. This evaluation would result in an
   overall confidence performance risk assessment of the offeror's ability to
   successfully perform the proposed effort. The possible confidence ratings,
   listed in descending order of quality, were "high confidence,"
   "significant confidence," "confidence," "unknown confidence," "little
   confidence," and "no confidence." RFP sect. M-3.4.

   Ten firms, including T Square and Data Monitor, submitted offers by the
   closing date for receipt of proposals. All offerors were determined to
   meet the minimum qualifications, and one offeror was determined to be
   technically unacceptable. The agency conducted written discussions with
   the remaining nine offerors during which evaluation notices were issued to
   each offeror. After discussions were concluded, final proposal revisions
   were requested and evaluated. Data Monitor was the lowest priced offeror
   at $51,530,704.29 of the three offerors that received the highest
   performance risk assessment awarded of "significant confidence." Although
   T Square submitted a lower price [DELETED], it received an overall
   performance risk assessment of "little confidence."

   The source selection authority concluded that despite "the Very Relevant
   contracts with Exceptional performance data which covered [DELETED] eight
   functions [DELETED]," T Square warranted an overall performance risk
   assessment of "Little Confidence," because of "substantial doubt in [T
   Square's] ability to perform due to lack of performance data in [DELETED]
   Agency Report, Tab 10, Source Selection Decision, at 2. T Square's
   evaluated lack of experience in these functional areas was not mentioned
   to it during discussions. The agency determined that Data Monitor's
   proposal represented the best value to the government, and Data Monitor
   was awarded the contract.

   In its initial protest and two supplemental protests, T Square basically
   argued that the agency should have communicated in discussions its concern
   that T Square lacked experience in certain BOS functions, and that had it
   been informed that the agency considered the gaps in its experience in
   certain BOS functions to be a significant weakness, it would have added
   subcontractors with the requisite experience.

   The Air Force filed a report responsive to the protests. In its report,
   the contracting officer argued that no discussions on this matter were
   deemed necessary because the lack of very relevant performance data in
   [DELETED] was "never deemed a deficiency, weakness or adverse past
   performance information which could be resolved or corrected via
   discussions." Contracting Officer's Statement at 7. T Square filed
   comments on the agency's report arguing that discussions were required.

   On February 13, 2006, after receipt of the comments, our Office's attorney
   handling the protests conducted an "outcome prediction" alternative
   dispute resolution (ADR) conference, at the request of the agency. During
   the ADR, she advised the parties that it was her view that the protests
   were likely to be sustained, and explained the basis for this view, which
   is discussed below.[1]

   The record showed that the agency's determination that T Square was
   lacking in experience in [DELETED] of the functional areas directly
   resulted in a "low confidence" rating, and that this rating was the reason
   that T Square was not considered for award notwithstanding its lower
   price. Under the circumstances, once the agency decided to conduct
   discussions--as it did in this case--it was obligated to point out
   T Square's evaluated lack of experience in these functions in order for
   the discussions to be considered meaningful. See Federal Acquisition
   Regulation sect. 15.306(d)(3); Cygnus Corp., Inc., B-292649.3, B-292649.4,
   Dec. 30, 2003, 2004 CPD para. 162 at 3; Alliant Techsystems, Inc.; Olin
   Corp.;, B-260215.4, B-260215.5, Aug. 4, 1995, 95-2 CPD para. 79 at 7-8.

   While the Air Force characterized the gaps in T Square's BOS experience as
   involving merely historical information that could not be changed so that
   discussions on this point were not required, the protester asserted that
   had it known that the agency would severely downgrade it for any gaps in
   its BOS experience, then T Square would have obtained new team member(s)
   with the requisite experience; T Square provided a declaration from its
   president stating that had he been aware of the agency's concerns he would
   have proposed teaming with two specific companies with which T Square had
   previously teamed, which have experience in the [DELETED] BOS functions in
   which the agency questioned T Square's experience, and which have
   indicated a willingness to subcontract with T Square on the BOS services
   work at Grissom AFB. Protest (B-297790.3) at 11; Protester's Comments,
   Declaration of President, at 2.

   During the ADR conference, the parties were informed by the GAO attorney
   that from her review of the record, it was clear that meaningful
   discussions were not conducted by the agency, where the protester was not
   informed of the agency's concern that the firm lacked certain experience
   that resulted in a "little confidence" rating that caused the selection of
   another firm for award. The parties were informed of the GAO attorney's
   view that the likely outcome of the protest was that it would be
   sustained, and that the likely protest recommendation would be that the
   agency reopen negotiations, conduct further discussions with T Square and
   the other offerors, request revised proposals, and make a new source
   selection decision, fully documenting the basis for that decision.

   On March 3, the Air Force informed our Office and the parties that the
   agency had decided to take corrective action in response to the
   outcome-prediction ADR, consisting of the following: (1) assign a new
   evaluator, (2) re-evaluate all offerors that received a "Go" in the
   "Go/NoGo" technical proposal evaluation for past performance relevance and
   performance risk, (3) assign a "neutral" performance risk rating for those
   functional areas in which an offeror lacks past performance experience,
   (4) re-assess the confidence assessment, (5) prepare a new past
   performance/cost trade-off analysis and best value determination, (6)
   prepare a new source selection document, and (7) if any offeror other than
   the current awardee is determined to be the best value, then terminate the
   award to Data Monitor, and make award to that offeror. The agency also
   advised that it would continue to stay performance until the proposed
   corrective action was completed. Given that T Square could receive the
   award as a result of the corrective action, on March 14, our Office
   dismissed T Square's protests as premature and academic.[2]

   T Square now requests that we recommend, pursuant to section to section
   21.8(e) of our Bid Protest Regulations, the reimbursement of its costs of
   filing and pursuing its initial protest and two supplemental protests. 4
   C.F.R. sect. 21.8(e) (2006). The Air Force did not agree to reimburse
   these costs, but "has decided not to reply to" the request for
   reimbursement. Facsimile Transmittal from Air Force to GAO and Parties
   (Apr. 10, 2006).

   Where a procuring agency takes corrective action in response to a protest,
   our Office may recommend under 4 C.F.R. sect. 21.8(e) that the agency
   reimburse the 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 protesters to expend unnecessary time and resources to
   make further use of the protest process in order to obtain relief. Pemco
   Aeroplex, Inc.--Recon. and Costs, B-275587.5, Oct. 14, 1997, 97-2 CPD
   para. 102 at 5. A protest is clearly meritorious when a reasonable agency
   inquiry into the protest allegations would show facts disclosing the
   absence of a defensible legal position. The Real Estate Ctr.--Costs,
   B-274081.7, Mar. 30, 1998, 98-1 CPD para. 105 at 3. A GAO attorney will
   inform the parties through outcome prediction that a protest is likely to
   be sustained only if he or she has a high degree of confidence regarding
   the outcome; therefore, the willingness to do so is generally an
   indication that the protest is viewed as clearly meritorious, and
   satisfies the "clearly meritorious" requirement for purposes of
   recommending reimbursement of protest costs. National  Opinion  Research 
   Center--Costs, B-289044.3, March 6, 2002, 2002 CPD para. 55 at 3;
   Inter-Con Sec. Sys., Inc.; CASS, a Joint Venture--Costs, B-284534.7,
   B-284534.8, Mar. 14, 2001, 2001 CPD para. 54 at 3.

   Here, the Air Force does not dispute that the protests were clearly
   meritorious and that the agency unduly delayed taking corrective
   action.[3] In our view, where, as here, the agency corrective action is
   taken in response to outcome-prediction ADR conducted after the agency
   report has been filed, the standard for cost reimbursement is presumed to
   have been met, absent persuasive evidence to the contrary. National 
   Opinion  Research  Center--Costs, supra. Accordingly, we recommend that T
   Square be reimbursed the reasonable costs of filing and pursuing its
   protests, including those incurred here for requesting a recommendation
   for costs. T Square should file its claim for costs with the Air Force,
   detailing and certifying the time expended and costs incurred within 60
   days of receipt of this decision. 4 C.F.R. sect. 21.8(f)(1).

   Anthony H. Gamboa

   General Counsel

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

   [1] In outcome prediction ADR, the GAO attorney handling a protest
   convenes the parties, at their request or at GAO's initiative, and
   explains what the GAO attorney believes the likely outcome will be and the
   reasons for that belief. A GAO attorney will engage in this form of ADR
   only if she or he has a high degree of confidence regarding the outcome.
   Where the party predicted to lose the protest takes action obviating the
   need for a written decision (either the agency taking corrective action or
   the protester withdrawing the protest), our Office closes the case.
   Although the outcome prediction reflects the view of the GAO attorney, and
   generally that of a supervisor as well, it is not an opinion of our
   Office, and it does not bind our Office, should issuance of a written
   decision remain appropriate.

   [2] In dismissing the protest, we observed, "In the event that it does not
   receive the award, the protester may protest this decision, including the
   nature of the corrective action." T Square Logistics Servs. Corp.,
   B-297790 et al., Mar. 14, 2006, at 2.

   [3] We generally do not consider corrective action to be prompt where, as
   here, it is taken after the due date for the agency report. York Bldg.
   Servs., Inc.; Olympus Bldg. Servs., Inc.--Costs, B-282887.10, B-282887.11,
   Aug. 29, 2000, 2000 CPD para. 141 at 5.