TITLE: B-299856.2, RKR Joint Venture, LLC--Costs, December 7, 2007
BNUMBER: B-299856.2
DATE: December 7, 2007
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B-299856.2, RKR Joint Venture, LLC--Costs, December 7, 2007

   Decision

   Matter of: RKR Joint Venture, LLC--Costs

   File: B-299856.2

   Date: December 7, 2007

   David F. Barton, Esq., The Gardner Law Firm, for the protester.

   Gary R. Allen, Esq., Department of the Air Force, for the agency.

   Glenn G. Wolcott, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Where record reasonably supports agency's determination that cancellation
   of a protested procurement was necessary because, due to the passage of
   time, the solicitation no longer reflected the agency's actual
   requirements, we do not view cancellation as corrective action taken in
   response to a protest and, accordingly, do not recommend reimbursement of
   protest costs.

   DECISION

   RKR Joint Venture, LLC requests that our Office recommend that the
   Department of the Air Force reimburse RKR for the costs incurred in filing
   and pursuing a protest challenging the Air Force's decision, pursuant to
   Office of Management and Budget Circular A-76, to perform certain base
   operating services (BOS) at Keesler Air Force Base (AFB), Mississippi,
   in-house using the government's most efficient organization (MEO). RKR
   maintains that the agency should have awarded a contract for those
   services to RKR under request for proposals (RFP) No. F41689-02-R-0049.

   We deny the request.

   The Air Force first issued a draft solicitation for this procurement in
   February 2003, seeking proposals to provide communication and information
   technology services, multimedia services, and publishing management at
   Keesler AFB;[1] thereafter, various amendments to the solicitation were
   issued. In June 2004, RKR submitted a proposal responding to the
   solicitation; thereafter, RKR's proposal was selected as the
   private-sector proposal offering the best value to the government for
   purposes of conducting a cost comparison with the MEO.

   In September 2005, RKR was notified that further actions under this A-76
   cost study had been postponed due to the effects of hurricane Katrina. The
   cost comparison was not completed until January 2007, at which point the
   MEO was selected to perform the solicited activities. RKR received a
   debriefing in February, and filed an administrative appeal with the Air
   Force's administrative appeal authority in March. RKR's administrative
   appeal was denied in May. Thereafter, RKR filed a protest with our Office.

   By letter to this Office dated July 2, 2007, the Air Force stated: "This
   serves as notice that the Air Force intends to cancel the solicitation
   that was the subject of the [RKR] protest, has determined not to implement
   the MEO, and intends to resolicit for the requirement in the future." Upon
   receipt of this notification, we requested that the Air Force provide more
   information regarding the basis for its pending actions. By letter to this
   Office dated July 9, the Air Force reiterated its position, stating that
   "the Air Force has determined that cancellation of the solicitation, as
   opposed to amendment, is the proper course to take for a number of
   reasons," and provided further explanation regarding the bases for
   cancellation of the solicitation.

   On July 30, GAO again requested that the Air Force provide additional
   information regarding the stated bases for cancellation. On August 2, the
   Air Force responded to our request, explaining that the solicitation no
   longer reflected the agency's needs due to the Air Force's pending
   centralization of a significant portion of the information technology
   services contemplated by the solicitation. Specifically, the Air Force
   submitted a statement from Major General William T. Lord, the Air Force's
   Director, Cyberspace Transformation and Strategy Office of Warfighting
   Integration and Chief Information Officer, which stated:

     The Air Force has embarked on a major transformational initiative to
     completely overhaul and change the delivery of network services . . . to
     [a] centralized or enterprise-centric concept of operations (AFNetOps
     CONOPS). The initiative is entitled AFNetOps Transformation and impacts
     the following Air Force components: doctrine, organization, training,
     materiel solutions (i.e., technology), logistics, personnel, and
     facilities within the communications and information mission area. . . .

     The AFNetOps implementation plan will address the migration of core
     enterprise services which include, but are not limited to messaging,
     web, storage, and help desk from the base communications squadrons to
     regional area processing centers. For Keesler AFB, the functions
     mentioned above will no longer be performed at the base, and it is
     anticipated that AFNetOps has changed 57 percent of the requirement as
     set forth in the current Little BOS Solicitation.[[2]] The current
     Little BOS Solicitation requirements no longer accurately reflect the
     Air Force needs, and any contract resulting from award under this
     solicitation will fail to meet the Air Force's requirements.

   
   Statement of Major General Lord paras. 1, 2.

   Based on the entire record presented, we dismissed RKR's protest on the
   basis that cancellation of the solicitation rendered RKR's protest
   academic.[3] RKR Joint Venture, LLC, B-299856, Aug. 29, 2007. On August
   31, 2007, RKR submitted this request that we recommend reimbursement of
   the costs RKR incurred in filing and pursuing its protest.

   Where an agency takes corrective action in response to a protest, our
   Office may recommend that a protester be reimbursed the costs of filing
   and pursuing that protest.[4] 4 C.F.R. sect. 21.8(e) (2007). However,
   where, as here, the record reasonably supports the agency's cancellation
   of a protested procurement on the basis that the solicitation at issue no
   longer represents the procuring agency's actual requirements, we do not
   view cancellation as corrective action taken to remedy a meritorious
   protest. See PAI Corp., B-244287.5, et al., Nov. 29, 1991, 91-2 CPD para.
   508 at 4-5. Accordingly, we will not recommend reimbursement of protest
   costs. Id.

   The request for reimbursement is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] The solicitation at issue here was generally referred to as the
   "Little BOS" solicitation. The Air Force also issued a solicitation,
   generally referred to as the "Big BOS" solicitation, which contemplated
   performance of the other base operating services required to support
   Keesler AFB. RKR did not compete for the "Big BOS" solicitation.

   [2] Due to the differing nature of the services sought under the "Little
   BOS" and "Big BOS" solicitations, noted above, the agency's centralization
   initiative had a significantly greater impact on the "Little BOS"
   solicitation than it had on the "Big BOS" solicitation.

   [3] RKR's protest, filed prior to the agency's decision to cancel the
   procurement, challenged only the agency's basis for selecting the MEO,
   rather than RKR, to perform the contract requirements--not the subsequent
   cancellation of the solicitation. Accordingly, there could be no dispute
   that cancellation of the procurement rendered RKR's protest academic.
   Nonetheless, this Office sought additional information following the
   agency's notice of cancellation to ensure that the agency had a reasonable
   basis for canceling the procurement--even though that issue was not
   raised, and could not have been raised, in RKR's initial protest
   submission. As discussed above, and in our earlier decision dismissing
   RKR's protest, we concluded that the agency had a reasonable basis for
   canceling the solicitation.

   [4] 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 the protester to expend
   unnecessary time and resources to make further use of the protest process
   in order to obtain relief. See, e.g., AAR Aircraft Servs.--Costs,
   B-291670.6, May 12, 2003, 2003 CPD para. 100 at 5.