TITLE: B-299091.2, AdaRose Inc.--Protest and Costs, January 14, 2008
BNUMBER: B-299091.2
DATE: January 14, 2008
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B-299091.2, AdaRose Inc.--Protest and Costs, January 14, 2008

   Decision

   Matter of: AdaRose Inc.--Protest and Costs

   File: B-299091.2

   Date: January 14, 2008

   George Holt for the protester.

   Vera Meza, Esq., Department of the Army, for the agency.

   Eric M. Ransom, Esq., and Christine S. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preperation of this decision.

   DIGEST

   1. Protest seeking reinstatement of an earlier protest because, in the
   protester's view, the agency has unduly delayed taking the corrective
   action promised in response to the earlier protest is dismissed since any
   dispute about the selection decision that was the subject of the earlier
   protest has been rendered academic because that selection decision has
   been set aside by the agency as part of the corrective action.

   2. Recommendation that protester be reimbursed the costs of filing an
   initial protest challenging the agency's evaluation of its proposal and
   the costs of filing a subsequent protest challenging the agency's delay in
   implementing the proposed corrective action that was the basis of the
   dismissal of the earlier protest is not warranted where the agency has not
   unduly delayed implementation of the proposed corrective action.

   DECISION

   AdaRose Inc. requests that our Office reinstate and sustain its earlier
   protest of a decision by the Department of the Army Joint Armaments
   Contracting Center not to award AdaRose a contract under request for
   proposals (RFP) No. W15QKN-05-R-0229, for armaments software engineering
   center support. We dismissed that protest as academic based on the
   agency's stated intention, after review of the protest, to set aside the
   source selection decision and take further corrective action consisting of
   amending the solicitation, soliciting revised proposals, and revaluating
   those proposals. In addition, AdaRose requests that our Office recommend
   that the agency reimburse AdaRose for losses allegedly suffered as a
   result of the agency's unduly prolonging the implementation of corrective
   action, and for other reasons.

   We dismiss AdaRose's request that we reinstate its earlier protest and we
   deny AdaRose's request for reimbursement of costs.[1]

   BACKGROUND

   The agency issued RFP No. W13QKN-05-R-0229 on August 4, 2005, for an
   indefinite- delivery/indefinite-quantity (ID/IQ) contract for software
   engineering, infrastructure, technologies, and equipment support
   requirements. The RFP was the first time that ten functional areas
   representing various weapons system and infrastructure support
   requirements would be combined into one solicitation. Agency Report (AR),
   Tab 1, Contracting Officer's Statement of Facts, at 1.

   The agency's acquisition strategy was to make awards to at least two
   qualifying companies in each of the ten functional areas. Id. Individual
   task orders would then be competed between the contractors in each
   functional area in accordance with fair opportunity competition
   requirements. Id. at 1-2. The contract resulting from the RFP was intended
   to replace a number of separate ID/IQ contracts due to end in fiscal years
   2007 and 2008. Id. at 2.

   The agency received proposals from seven offerors, including AdaRose, by
   the September 7, 2005 closing date of the solicitation. Id. Discussions
   were conducted with all offerors, and all offerors submitted final
   proposal revisions by April 20, 2006. On July 26, the contracting officer
   eliminated AdaRose's proposal from consideration, finding that AdaRose's
   acceptable ratings in past performance, cost realism, and small
   disadvantaged business participation did not compensate for its high
   proposal risk evaluations. AR, Tab 12, Memorandum of Source Selection
   Decision, at 9, 12. AdaRose was notified that it was not selected for
   award on September 21 and received a requested debriefing on October 5.

   AdaRose filed its original protest with our Office on November 1, 2006,
   alleging among numerous grounds of protest that the rejection of its
   proposal was inconsistent with the published evaluation criteria, that the
   agency incorrectly rated AdaRose's past performance as neutral, and that
   the agency failed to reveal the seriousness of identified weaknesses
   during discussions. After reviewing the protest, the contracting officer
   determined that it was in the best interest of the government to take
   corrective action, consisting of overturning the source selection
   decision, amending the RFP, and requesting revised proposals from the
   offerors, followed by a reevaluation. On that basis, we dismissed the
   protest on November 29.

   Within a month after our Office dismissed the protest, the contracting
   officer began to detail deficiencies in the original solicitation and
   draft amendments. AR, Tab 1, Contracting Officer's Statement of Facts, at
   3. More than 12 months later, however, the Army's proposed corrective
   action has yet to be completed, and the amended solicitation was issued
   only recently on December 10, 2007.

   In January 2007, AdaRose contacted the agency to determine the status of
   the corrective action and was informed that the agency hoped to issue the
   revised RFP in February 2007. Protest at 1. On October 15, 2007, AdaRose
   filed this protest with our Office, requesting that we reinstate and
   sustain its previous protest and award it monetary remuneration for losses
   and costs.

   ANALYSIS

   As a preliminary matter, we do not reinstate protests. A protest, like the
   one here, that was once academic is not "revived" by subsequent agency
   action. Instead, the subsequent action gives rise to a new basis for
   protest, even if some of the issues raised by the subsequent action are
   the same as the issues raised in the earlier protest. See Pemco Aeroplex,
   Inc.--Recon. and Costs, B-275587.5, B-275587.6, Oct. 14, 1997, 97-2 CPD
   para. 102 at 4-5. With respect to the specific request here, on November
   17, 2006, the contracting officer set aside the source selection decision
   that gave rise to the protest. Thus the source selection decision no
   longer exists, and any dispute about that decision or its basis has been
   rendered academic by the contracting officer's determination.[2] The
   protester's request that we reinstate its previous protest is therefore
   dismissed. Lackland 21^st Century Servs. Consol.--Protest and Costs,
   B-285938.6, July 13, 2001, 2001 CPD para. 124 at 4.

   With respect to costs, our Office may recommend that a protester be
   reimbursed the costs of filing and pursuing a protest where the
   contracting agency decides to take corrective action in response to the
   protest. Bid Protest Regulations, 4 C.F.R. sect. 21.8(e). Such
   recommendations are generally based upon a concern that an agency has
   taken longer than necessary to initiate 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. QuanTech, Inc.--Costs, B-278380.3, June 17,
   1998, 98-1 CPD para. 165 at 2. Such a basis for the award of costs does
   not exist in this protest, since the agency initiated corrective action
   promptly (i.e., prior to the agency report due date) in response to the
   initial protest. See Veda Inc.--Entitlement to Costs, B-265809.2, July 19,
   1996, 96-2 CPD para. 27 at 2 (generally, we consider agency corrective
   action prompt where it is proposed before the agency's administrative
   report is due). However, we may also recommend recovery of protest costs
   where an agency unduly delays the implementation of the promised
   corrective action that led to the dismissal of the earlier protest. See
   Pemco Aeroplex Inc.--Recon. and Costs, supra. We view the recovery of
   protest costs in such cases as appropriate because a protest is not truly
   resolved until the agency implements the promised corrective action that
   caused us to dismiss the protest.

   AdaRose's claim that the Army has unduly delayed implementing corrective
   action is based on the length of time that has elapsed since the dismissal
   of its protest, the agency's alleged failure to maintain contact with
   AdaRose, and AdaRose's view that the agency, through its deliberate
   inaction, has demonstrated that it has no intention of ever allowing
   AdaRose the opportunity to obtain work with the requiring activity. The
   agency maintains that it has no intention of denying AdaRose the
   opportunity to obtain work, and that since the dismissal of the protest,
   it has in good faith taken numerous significant steps to implement the
   proposed corrective action as outlined in the contracting officer's
   determination of November 17, 2006. The agency claims that despite such
   ongoing good faith actions, the procurement has been delayed by several
   events including the recurring significant illness of a senior level
   technical reviewer, a major increase in overall workload caused by the
   current war efforts, and the necessary prioritization of contracting
   actions more immediately related to warfighter support needs.

   Our Office has previously found that an agency unduly delays corrective
   action where the agency allows continued performance of improperly awarded
   contracts, or fails to justify or explain lengthy delays. Commercial
   Energies, Inc.--Recon. and Declaration of Entitlement to Costs,
   B-243718.2, Dec. 3, 1991, 91-2 CPD para. 499 at 5-6; see also Pemco
   Aeroplex Inc.--Recon. and Costs, supra. However, our Office has also found
   that months-long delays do not by themselves constitute an undue delay
   where an agency reasonably justifies or explains those delays. For
   instance, in J&J/BMAR Joint Venture, LLP--Costs, B-290316.7, July 22,
   2003, 2003 CPD para. 129 at 3, we found that a 9-month delay in the
   implementation of corrective action was not an undue delay in view of the
   agency's prompt initiation of implementation and continued steps toward
   completing implementation, and in recognition of the complexity of the
   procurement and the difficulties caused by the deployment of forces in
   Iraq.

   We conclude that the situation in this protest is similar to that in
   J&J/BMAR. The agency here began to implement the proposed corrective
   action promptly, with the contracting officer proposing amendments to the
   solicitation within weeks after the dismissal of the protest. The agency
   has also continued to make incremental steps toward the implementation of
   corrective action, and has explained that the unusual delay in the process
   is attributable to the recurring significant illness of a key member of
   the technical team, and by the increased workload and changes in
   acquisition priorities caused by the current war efforts. In addition, we
   recognize the inherent difficulty in correcting a flawed solicitation that
   implements a new acquisition strategy and combines multiple requirements
   for the first time. In sum, we find that the agency has not unduly or
   unreasonably delayed implementation of the corrective action that was the
   basis for dismissal of AdaRose's original protest as academic. At the same
   time, since it has been over 12 months since we dismissed the protest, we
   expect that the agency will now undertake all efforts to expedite its
   implementation of the proposed corrective action.

   The request is dismissed in part and denied in part.

   Gary L. Kepplinger
   General Counsel

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

   [1] AdaRose requests that we recommend that the agency provide AdaRose
   with monetary compensation for loss of revenue and loss of reputation, as
   well as punitive damages for the agency's non-compliance with federal
   procurement statutes. However, there is no legal basis that would permit
   recovery of anticipated profits or similar monetary damages, even if a
   firm submitting a protest has been wrongfully denied a contract. See
   Adrian Supply Co.--Recon., B-225440, B-225440.2, Mar. 30, 1987, 87-1 CPD
   para. 357 at 4. We therefore limit our discussion in the decision to the
   reimbursement of AdaRose's protest costs. See Bid Protest Regulations, 4
   C.F.R. sect. 21.8(e) (2007).

   [2] A substantial portion of AdaRose's current protest is concerned with
   maintaining challenges related to the original evaluation of proposals,
   discussions, and the now-overturned source selection decision.
   Specifically, AdaRose remains very concerned that its proposal was
   incorrectly labeled as "high risk" in the source selection decision and
   that the source selection decision document was never amended to reflect
   the correct "moderate risk" proposal rating. Because the source selection
   decision was overturned in the contracting officer's determination of
   November 17, 2006, this issue was rendered academic, and remains academic
   for the purposes of this and any future protest of the agency's subsequent
   actions.