TITLE: B-299600.2, Takota Corporation--Costs, September 18, 2007
BNUMBER: B-299600.2
DATE: September 18, 2007
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B-299600.2, Takota Corporation--Costs, September 18, 2007

   Decision

   Matter of: Takota Corporation--Costs

   File: B-299600.2

   Date: September 18, 2007

   Thomas R. Lynch, Esq., Bradley Arant Rose & White LLP, for the protester.

   Timothy A. Chenault, Esq., Department of Homeland Security, for the
   agency.

   Paula A. Williams, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Request for recommendation that protest costs be reimbursed is denied
   where the record shows that there was no nexus between the bases of
   protest and the agency's corrective action.

   DECISION

   Takota Corporation requests that we recommend that it be reimbursed the
   costs of filing and pursuing its protest, including attorneys' fees, in
   connection with its protest of invitation for bids (IFB) No.
   HSCG83-06-B-3WF381, issued by the Department of Homeland Security, United
   States Coast Guard (the Coast Guard) for replacement pier services at the
   Coast Guard's Little Creek Station, in Norfolk, Virginia. In its protest,
   Takota challenged the agency's decision to cancel the initial solicitation
   instead of making award to Takota which had submitted the lowest bid. In
   addition, Takota challenged the Coast Guard's award of a contract to
   Jessico, Inc., at a higher price for the identical or substantially
   similar work without giving Takota an opportunity to compete.

   We deny the request.

   The Coast Guard issued the canceled IFB as a total small business
   set-aside on October 6, 2006, and bids were opened on November 16. Takota
   submitted the apparent low bid, which exceeded both the government
   estimate and available funds for the procurement. The record shows that
   even if additional funding was obtained, the agency was concerned that
   Takota's bid price was too close to the funding ceiling to cover any
   future changes to the IFB's scope of work. In addition, the agency had
   identified a need to add fuel dispensers to the pier services project, and
   questions were raised regarding the stated need for a debris shield (as
   opposed to a lower cost, lower maintenance alternative). As a result, the
   agency decided to cancel the IFB on December 27, and bidders were notified
   of the cancellation by letters dated December 28. The next day, the agency
   offered the replacement pier services to the Small Business Administration
   (SBA) as a new requirement under the SBA's section 8(a) business
   development program.[1] According to the Coast Guard, it considered the
   offered requirement to be a new acquisition based on the addition of new
   work, the need for a higher funding level since the project was more
   expensive than anticipated, and the need to procure various requirements,
   such as the debris shield, as optional items.

   Based upon the information provided by the Coast Guard, on January 4,
   2007, the SBA accepted the procurement into the 8(a) business development
   program. Ultimately, on March 27, Jessico was awarded a noncompetitive
   8(a) contract which included the new work for the fuel dispensers and the
   debris shield as initially required in the canceled IFB.

   Takota protested the award to our Office on April 2, asserting, among
   other things, that this procurement was improperly conducted on a
   sole-source basis denying Takota an opportunity to compete for this work.
   In preparing its response to the protest for our Office, the agency
   reviewed the procurement and realized that the SBA had not been informed
   that the prior solicitation had been issued as a small business set-aside
   for replacement pier services. By letters dated April 17 and
   April 24, the Coast Guard informed the SBA of this omission and sought an
   opinion from the SBA about whether the revised solicitation qualified as a
   new requirement and, therefore, was appropriately handled as a
   noncompetitive 8(a) set-aside. On May 2, the Coast Guard filed its agency
   report with our Office responding to the issues raised by the protester,
   and advising our Office and Takota that the Coast Guard would take
   corrective action if the SBA made a determination that the offering was
   not a new requirement that could be placed under the 8(a) program.

   The next day, the SBA advised our Office and the parties that, in its
   view, the requirements in the initial small business set-aside were
   virtually the same as the requirements offered to the 8(a) business
   development program. The SBA concluded that the Coast Guard's requirement
   for replacement pier services was not a new requirement that could be
   accepted by the SBA for performance under the 8(a) program. By letter
   dated May 7, the Coast Guard informed our Office that, consistent with the
   SBA's determination, the Coast Guard intended to terminate Jessico's
   contract and resolicit the acquisition other than under the 8(a) program.
   We dismissed the protest as academic on May 9.

   Takota asks that we recommend that it be reimbursed its protest costs,
   including attorneys' fees, because the Coast Guard had unduly delayed
   taking corrective action in the face of the protester's assertedly
   meritorious protest. The Coast Guard argues against reimbursement of
   protest costs because, in its view, the corrective action taken was not
   related to matters raised by the protester in its protest. In addition,
   the agency argues that its response to the SBA's opinion was prompt, not
   unduly delayed, and that the initial protest was not clearly meritorious.

   Where a contracting agency takes action which renders a protest moot prior
   to our issuing a decision resolving the merits of the protest, our Office
   may recommend that the protester be reimbursed the costs of filing and
   pursuing the protest. Bid Protest Regulations, 4 C.F.R. sect. 21.8(e)
   (2007); Information Ventures, Inc.--Costs,
   B-294567.2, Nov. 16, 2004, 2004 CPD para. 234 at 2. This imposition of
   costs is not intended as an award to prevailing protesters or as a penalty
   to the agency, but rather is designed to encourage agencies to take prompt
   action to correct apparent defects in competitive procurements. J.A. Jones
   Mgmt. Servs., Inc.--Costs, B-284909.4, July 31, 2000, 2000 CPD para. 123
   at 3. We will recommend that a protester be reimbursed its protest costs
   only where, under the facts and circumstances of a given case, the agency
   unduly delayed taking corrective action in the face of a clearly
   meritorious protest, thereby causing a protester to expend unnecessary
   time and resources to make further use of the protest process in order to
   obtain relief. Advanced Environmental Solutions, Inc.--Costs, B-296136.2,
   June 20, 2005, 2005 CPD para. 121 at 2-3.

   Applying these standards to the present case, we conclude that it is not
   appropriate to recommend that Takota recover its protest costs. As an
   initial matter, there was no nexus between the bases of protest raised by
   Takota in its protest letter and the basis for the Coast Guard's
   corrective action decision, which was taken in response to the SBA's
   opinion, and we note that the protester has not shown otherwise. See
   GPA-Buffer, LP, B-298953.2, Mar. 21, 2007, 2007 CPD para. 53 at 4.
   Moreover, the Coast Guard took corrective action no more than 4 days after
   the SBA's opinion was issued and 5 days after filing its agency report
   with our Office. Thus, even if we assume that Takota's initial protest
   grounds were clearly meritorious, the agency's corrective action was not
   unduly delayed and is precisely the kind of prompt agency action that our
   regulations are designed to encourage. Since the Coast Guard did not take
   corrective action in response to Takota's protest and Takota's protest was
   not sustained, there is no basis to recommend reimbursement of protest
   costs. Id.

   The request for reimbursement of costs is denied.

   Gary L. Kepplinger
   General Counsel

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   [1] Section 8(a) of the Small Business Act authorizes the SBA to enter
   into contracts with government agencies and to arrange for performance of
   such contracts by awarding subcontracts to socially and economically
   disadvantaged small businesses. 15 U.S.C. sect. 637(a) (2000).