TITLE: B-298575.4, Alaska Structures, Inc.--Costs, January 22, 2007
BNUMBER: B-298575.4
DATE: January 22, 2007
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B-298575.4, Alaska Structures, Inc.--Costs, January 22, 2007

   Decision

   Matter of: Alaska Structures, Inc.--Costs

   File: B-298575.4

   Date: January 22, 2007

   Richard J. Conway, Esq., and Robert J. Moss, Esq., Dickstein Shapiro LLP,
   for the protester.

   Peter F. Pontzer, Esq., Department of the Army, for the agency.

   Louis A. Chiarella, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Protester is not entitled to reimbursement of the costs of filing and
   pursuing its protest where the agency decides to take corrective action in
   response to the protest, and the protest was not clearly meritorious.

   2. Request for recommendation for reimbursement of protest costs relating
   to earlier protest which led to corrective action is denied where the
   record provides no support for protester's allegation that the issue which
   the agency's corrective action did not address was clearly meritorious.

   DECISION

   Alaska Structures, Inc. requests that we recommend that it be reimbursed
   the costs of filing and pursuing its protest challenging the terms of
   request for quotations (RFQ) No. W81XWH-06-T-0219, issued by the Army
   Medical Research Acquisition Activity, Army Medical Materiel Agency,
   Department of the Army, for a mobile field hospital (MFH) system. We
   dismissed the protest after the agency advised our Office that it would
   take corrective action by canceling, and subsequently revising and
   reissuing, the RFQ. Alaska Structures argues that the agency's corrective
   action was unduly delayed and its protest was clearly meritorious. The
   protester also argues that it was forced to file its most recent protest,
   and incur the associated costs, because the agency failed to properly
   implement the corrective action promised in response to a prior protest
   filed by Alaska Structures raising the same alleged solicitation defects.

   We deny the request.

   BACKGROUND

   The history of the relationship between the Army and Alaska Structures
   regarding the agency's MFH system procurement is a long and difficult one
   (see Alaska Structures, Inc.--Costs, B-298156.2, July 17, 2006, 2006 CPD
   para. 109 for additional details).[1] As relevant here, on March 1, 2006,
   the Army issued RFQ No. 129731 for a 150-bed portable hospital system. On
   March 31, Alaska Structures protested to our Office, arguing that various
   terms of the RFQ were defective.[2] Specifically, the protester alleged
   that the agency improperly intended to purchase non-Federal Supply
   Schedule (FSS) items using FSS procedures; the solicitation's functional
   characteristics were vague and ambiguous; the RFQ failed to provide
   vendors with equal information concerning mandatory compatibility
   requirements; the solicitation contained internally inconsistent
   evaluation criteria; and the evaluation criteria improperly contained
   requirements that were not also contained in the functional
   characteristics. Protest (B-298156), Mar. 31, 2006, at 10-19.

   On April 26, the Army notified our Office of its intent to cancel the RFQ
   here, and to revise and reissue the solicitation. While not agreeing with
   all of the protester's arguments and allegations, the agency stated that
   it would address, in whole or in part, four of the five issues raised by
   Alaska Structures (i.e., all but the assertion that the RFQ's functional
   characteristics were improperly vague and ambiguous by failing to provide
   sufficient detail). Letter from Army to GAO, Apr. 26, 2006, at 3.
   Cancellation of the RFQ rendered Alaska Structures' protest of that
   solicitation academic, and since it is not our practice to consider
   academic protests, we dismissed the protest on May 3.[3]

   On May 27, the Army issued a revised solicitation, RFQ No.
   W81XWH-06-T-0219, for a 150-bed MFH system. The RFQ stated that the Army
   was procuring a commercial item in accordance with Federal Acquisition
   Regulation (FAR) Part 12. The solicitation included a performance-type
   specification that described the agency's requirement for the MFH system,
   as well as instructions to vendors regarding the submission of quotations
   and the evaluation factors for award.

   On August 3, Alaska Structures again protested to our Office, arguing that
   the RFQ was defective. Alaska Structures alleged that the solicitation
   lacked certain critical information regarding the MFH system's functional
   characteristics (i.e., the minimum requirements for wind load, rain load,
   snow load, ambient temperature, humidity levels, field life, system
   durability, etc.). The protester argued that this information was required
   in order for it to determine the proper structural requirements, and the
   heating, ventilation, and air conditioning requirements, for the MFH
   system. Alaska Structures also contended that the absence of the
   information made the solicitation improperly vague and ambiguous so as to
   preclude vendors from competing intelligently. Protest, Aug. 3, 2006, at
   7-12.

   The Army then filed its report addressing the issues raised by Alaska
   Structures. The Army acknowledged that the RFQ did not contain any
   performance requirements or evaluation criteria regarding the wind, rain,
   or snow loads, or ambient temperature and humidity ranges for the MFH
   system. The agency contended, however, that FEMA did not possess the
   information that Alaska Structures alleged was missing from the RFQ.
   Specifically, the Army stated that while FEMA intended that the MFH system
   be deployable to any region of the United States, FEMA did not know, nor
   could it predict, where the MFH system would actually be used. Thus, the
   agency argued, the wind speeds and/or ambient environments that would be
   encountered in future deployments of the MFH system were also not known.
   The Army also argued that because it was procuring a commercial item in
   accordance with FAR Part 12, the RFQ did contain sufficient detail for
   potential vendors to prepare their quotations. Agency Report, Sept. 5,
   2006, at 6-15.

   In its comments on the agency report, Alaska Structures accepted the
   factual premise that FEMA intended the MFH system to be capable of being
   deployed anywhere in the United States that a disaster strikes. Thus,
   Alaska Structures argued, FEMA knew that it needed to have performance
   standards regarding wind, rain, and snow loads, as well as ambient
   temperature extremes and humidity levels, such that the MFH system would
   be operational anywhere in the United States. The fact that FEMA could not
   predict in advance where the MFH system would actually be used, the
   protester contended, simply did not preclude FEMA from providing
   performance criteria reflecting the conditions under which it wanted the
   MFH system to work, or relieve the contracting agency from providing
   vendors with sufficient information to allow them to compete
   intelligently. Comments, Sept. 15, 2006, at 6-15.

   We subsequently convened a status conference with the parties in order to
   discuss various procedural and substantive issues involved in the protest.
   At this conference the GAO attorney informed the Army that he had serious
   concerns about the protester's allegations; that he needed the Army to
   respond to certain arguments raised by Alaska Structures in its comments;
   and that a hearing--with witnesses from FEMA regarding the RFQ's lack of
   various functional requirements--was likely. At no time did the GAO
   attorney inform the parties that the status conference constituted
   "outcome prediction" alternative dispute resolution (ADR),[4] or that the
   protest here was likely to be sustained. Further, when expressly asked by
   the agency whether GAO viewed the protest as "clearly meritorious," the
   GAO attorney informed the parties that he did not consider the protest to
   be clearly meritorious.[5] The GAO attorney also specifically asked the
   protester's counsel whether he understood what was meant by saying that
   the protest was not considered to be clearly meritorious, and the
   protester's counsel stated that he did.

   On October 3, the Army notified our Office of its intent to cancel the RFQ
   here, and to revise and reissue the solicitation. Specifically, the Army
   agreed to further define the government's needs, and to provide vendors
   with certain load requirements, environmental conditions, and durability
   requirements for the agency's MFH system. Letter from Army to GAO, Oct. 3,
   2006, at 2. We concluded that the cancellation of the RFQ rendered Alaska
   Structures' protest of that solicitation academic, and on October 5, we
   dismissed the protest.

   Alaska Structures now requests that our Office recommend that the agency
   reimburse the protester's costs of filing and pursuing its August 3
   protest. Alaska Structures argues that the Army unduly delayed taking
   corrective action, as evidenced by its failure to do so until after filing
   of the agency report and submission of comments by the protester, and that
   its protest was clearly meritorious. In support of its position, the
   protester asserts that the GAO attorney indicated to the parties that the
   protest was likely to be sustained. Request for Costs, Oct. 19, 2006, at
   1-2, 5-6. The agency opposes Alaska Structures' request, arguing that the
   protest here was not clearly meritorious.

   Under the Competition in Contracting Act of 1984, our Office may recommend
   that protest costs be reimbursed where we find that an agency's action
   violated a procurement statute or regulation. 31 U.S.C. sect. 3554(c)(1)
   (2000). Our Bid Protest Regulations further provide that where the
   contracting agency decides to take corrective action in response to a
   protest, we may recommend that the protester be reimbursed the costs of
   filing and pursuing its protest, including reasonable attorneys' fees. 4
   C.F.R. sect. 21.8(e) (2006). Our Regulations do not contemplate a
   recommendation for the reimbursement of protest costs in every case in
   which an agency takes corrective action, but rather only where an agency
   unduly delays taking corrective action in the face of a clearly
   meritorious protest.[6] Information Ventures, Inc.--Costs, B-294580.2 et
   al., Dec. 6, 2004, 2004 CPD para. 244 at 2; Oklahoma Indian Corp.--Claim
   for Costs, B-243785.2, June 10, 1991, 91-1 CPD para. 558 at 2. Thus, as a
   prerequisite to our recommending the reimbursement of costs where a
   protest has been settled by corrective action, not only must the protest
   have been meritorious, but it also must have been clearly meritorious,
   i.e., not a close question. PADCO, Inc.-Costs, B-289096.3, May 3, 2002,
   2002 CPD para. 135 at 3. A protest is clearly meritorious where a
   reasonable agency inquiry into the protester's allegations would reveal
   facts showing the absence of a defensible legal position. Overlook Sys.
   Techs., Inc.--Costs, B-298099.3, Oct. 5, 2006, 2006 CPD para. __ at 6. The
   mere fact that an agency decides to take corrective action does not also
   establish that a statute or regulation clearly has been violated. Id.

   We conclude that reimbursement is not appropriate in this case since
   Alaska Structures' protest was not clearly meritorious. As a preliminary
   matter, the protester misrepresents what transpired at the status
   conference held by our Office. At no time did the GAO attorney inform the
   parties that the status conference constituted outcome prediction ADR or
   that the protest was likely to be sustained. In fact, when expressly
   asked, the GAO attorney informed the parties that he did not consider the
   protest to be clearly meritorious. The GAO attorney also specifically
   asked the protester's counsel whether he understood what was meant here
   (i.e., that any subsequent request to be reimbursed its protest costs
   would not meet the GAO prerequisites), and the protester's counsel
   answered that he did.

   Regarding the issues raised in the protest, the Army maintained that it
   could not provide performance requirements for the MFH system that
   end-user FEMA did not have, and that because the Army was procuring a
   commercial item, the RFQ's description of the agency's needs here did
   contain sufficient detail for potential vendors to prepare their
   quotations. Alaska Structures argued that the fact that FEMA did not know
   where the MFH system would be used did not preclude FEMA from developing
   minimum performance criteria or relieve the contracting agency from
   providing vendors with sufficient information to compete intelligently.
   Because our Office could not determine which party's position was correct
   from the existing record, we requested that the agency respond to the
   protester's comments and we also contemplated holding a hearing to more
   fully develop the matter. Since the ultimate resolution of this matter
   required substantial further development and analysis as indicated, in
   part, by our Office's request that the agency respond to the protester's
   comments and consideration of a hearing to more fully develop the protest
   record regarding this issue, the protest, in our view, presented a close
   question, and therefore was not clearly meritorious. See Overlook Sys.
   Techs., Inc.--Costs, supra; Honeywell Tech. Solutions, Inc.--Costs,
   B-296860.3, Dec. 27, 2005, 2005 CPD para. 226 at 4 n.3.

   Alaska Structures also argues that it should be reimbursed the costs of
   filing and pursuing its prior protest (B-298156, filed March 31, 2006)
   because the Army failed to implement the promised corrective action that
   prompted the dismissal of that protest. The protester contends that its
   March 31 protest asserted that the RFQ's functional characteristics for
   the MFH system (specifically, the lack of minimum requirements for wind,
   rain, or snow loads, ambient temperature, and humidity levels) were
   improperly vague and ambiguous. Alaska Structures also argues that the
   Army, in response to the March 31 protest, promised to correct those
   defects. Despite that promise, the protester maintains, the agency failed
   to do so, thereby requiring Alaska Structures to file its August 3 protest
   and raise the very same procurement deficiencies. The protester also
   argues that the record, including the Army's October 3 corrective action
   notice that conceded the agency's responsibility to provide further
   clarity and detail in the specifications, reflects that Alaska Structures'
   March 31 protest was clearly meritorious. Request for Costs, Oct. 19,
   2006, at 7-8. We disagree.

   Reimbursement of protest costs may be appropriate where an agency does not
   timely implement the promised corrective action that prompted the
   dismissal of a clearly meritorious protest. See Career Quest, a division
   of Syllan Careers, Inc.-- Costs, B-293435.5, Apr. 13, 2005, 2005 CPD para.
   79 at 3 n.2; East Bay Elevator Co., Inc.--Costs, B-286315.2, July 26,
   2001, 2001 CPD para. 128 at 2. As we have noted, the mere promise of
   corrective action, without reasonably prompt implementation, has the
   obvious effect of circumventing the goal of the bid protest system of
   effecting the economic and expeditious resolution of bid protests.
   Louisiana Clearwater, Inc.--Recon. and Costs, B-283081.4, B-283081.5, Apr.
   14, 2000, 2000 CPD para. 209 at 6; Pemco Aeroplex, Inc.--Recon. and Costs,
   B-275587.5, B-275587.6, Oct. 14, 1997, 97-2 CPD para. 102 at 7-8. Where an
   agency fails to implement the promised corrective action, or implements
   corrective action that fails to address a clearly meritorious issue raised
   in the protest that prompted the corrective action, such that the
   protester is put to the expense of subsequently protesting the very same
   procurement deficiency, the agency's action, even though promptly
   proposed, has precluded the timely, economical resolution of the protest.
   See Louisiana Clearwater, Inc.--Recon. and Costs, supra; Envirosolve LLC,
   B-294974.4, June 8, 2005, 2005 CPD para. 106 at 7.

   In this case, we conclude that recovery of protest costs is not warranted
   because, while Alaska Structures raised the same issue of vague and
   ambiguous specifications in more than one protest, the issue was neither
   the subject of the agency's promised corrective action nor clearly
   meritorious.

   As set forth above, Alaska Structures' March 31 protest alleged, among
   other things, that the Army's specification was improperly vague and
   ambiguous by failing to provide sufficient detail. While the Army then
   agreed to again take corrective action in response to the protest, it was
   with regard to the other issues that had been raised, and expressly not
   with regard to the assertion that the specification was improperly vague
   and ambiguous. Letter from Army to GAO, Apr. 26, 2006, at 3. Contrary to
   the protester's representations, see Request for Costs, Oct. 19, 2006,
   at 8, the agency's corrective action memorandum did not promise to correct
   the defects that became the subject of Alaska Structures' August 3
   protest, and the fact that Alaska Structures later raised the same protest
   issue again does not establish that the agency failed to implement
   promised corrective action.[7]

   We also conclude that Alaska Structures' recovery of protest costs here is
   not appropriate since Alaska Structures' March 31 protest was not clearly
   meritorious. The protester's argument that its March 31 protest was
   clearly meritorious is premised upon an essential but unproven
   assumption--that its subsequent August 3 protest which raised the very
   same procurement deficiency was also clearly meritorious.[8] As explained
   above, however, we have determined that the August 3 protest--in which we
   received the agency report and protester's comments but still required
   substantial further development and analysis regarding the issue--was not
   clearly meritorious. The mere fact that the Army decided to take
   corrective action in response to Alaska Structures' August 3 protest does
   not also establish that the protest was clearly meritorious. Overlook Sys.
   Techs., Inc.--Costs, supra, at 6. Thus, we have no basis to conclude that
   the Army's earlier corrective action failed to address a clearly
   meritorious issue.

   The request for a recommendation that the agency reimburse Alaska
   Structures' protest costs is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] The Army is conducting this procurement on behalf of the Federal
   Emergency Management Agency (FEMA), the user activity.

   [2] Alaska Structures' protest here was not its first challenge to the MFH
   system procurement. On August 4, 2005, Alaska Structures filed an
   agency-level protest with FEMA challenging the agency's intent to conduct
   a sole-source procurement. On September 26, Alaska Structures protested to
   our Office, arguing that the solicitation issued by the Army failed to
   provide vendors with sufficient time to prepare and submit quotations
   (B-297286). On October 12, we dismissed this protest without a decision on
   the merits after the Army decided to resolicit the requirement and allow
   more time for vendors to respond to the solicitation. Alaska Structures
   again protested to our Office on December 15, arguing that the agency's
   "brand name or equal"-type specification contained various requirements
   that were vague, ambiguous, and/or internally inconsistent (B-297743). On
   January 19, 2006, we dismissed that protest without a decision on the
   merits after the Army decided to cancel the solicitation and prepare a new
   one that would utilize performance or functionality-based specifications
   that would avoid reference to any particular manufacturer's products.

   [3] We subsequently denied the protester's request for reconsideration of
   our dismissal decision on June 1, 2006, and later (on July 17) denied its
   request for reimbursement of the costs incurred in filing the protest.
   Alaska Structures, Inc.--Costs, supra.

   [4] 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.

   [5] All of the statements in this decision regarding what transpired in
   the status conference are reflected in written contemporaneous notes made
   by the GAO attorney.

   [6] 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 protests costs. The Sandi-Sterling
   Consortium--Costs, B-296246.2, Sept. 20, 2005, 2005 CPD para. 173 at 2-3;
   Envirosolve--Costs, B-294420.3, Feb. 17, 2005, 2005 CPD para. 35 at 3.
   Here, as noted above, the agency did not advise our Office of its intent
   to take corrective action until after it had filed its report on the
   protest.

   [7] It was the remaining issues raised by Alaska Structures in its March
   31 protest--that the agency improperly intended to purchase non-FSS items
   using FSS procedures; the RFQ failed to provide vendors with equal
   information concerning mandatory compatibility requirements; the
   solicitation contained internally inconsistent evaluation criteria; and
   the evaluation criteria improperly contained requirements that were not
   also contained in the functional characteristics--that were the subject of
   the Army's promised corrective action.

   [8] The Army took corrective action with regard to the March 31 protest
   prior to preparation of an agency response on the merits and, therefore,
   there is insufficient support in the March 31 protest record for a
   determination that the protest was clearly meritorious. See Alaska
   Structures, Inc.--Costs, supra, at 4 n.7.