TITLE: B-310927.2, Tremco Incorporated--Costs, April 21, 2008
BNUMBER: B-310927.2
DATE: April 21, 2008
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B-310927.2, Tremco Incorporated--Costs, April 21, 2008

   Decision

   Matter of: Tremco Incorporated--Costs

   File: B-310927.2

   Date: April 21, 2008

   Peter F. Garvin, III, Esq., and Grant H. Willis, Esq., Jones Day, for the
   protester.

   Charlma Quarles, Esq., Kenneth MacKenzie, Esq., and Edward Carney, Esq.,
   Department of Veterans Affairs, for the agency.

   Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Request for reimbursement of protest costs is denied where record fails to
   establish that the agency delayed taking corrective action in the face of
   a clearly meritorious protest.

   DECISION

   Tremco Incorporated requests that we recommend reimbursement of the costs
   it incurred in connection with filing and pursuing a protest challenging
   the selection of Alliance Roofing as the successful vendor under request
   for quotations (RFQ) No. VA-241-07-RQ-0179, issued by the Department of
   Veterans Affairs (VA) for roof replacement work at the Brockton,
   Massachusetts campus of the VA Boston Healthcare System.

   We deny the request.

   On December 10, 2007, Tremco filed a protest with our Office, alleging
   that Alliance's quotation improperly included work not available under its
   Federal Supply Schedule contract; alternatively, Tremco contended that, if
   Alliance's quotation failed to include open market items, it would not
   meet all of the RFQ's requirements. On January 9, 2008, the due date for
   the agency's report in response to the protest, the VA reported to our
   Office that it was taking corrective action, by terminating the award and
   resoliciting the requirement, since further review of the procurement had
   revealed that the successful vendor's bond had not been timely submitted.
   Consequently, we dismissed Tremco's protest, since the agency's
   termination of the award and resolicitation of its requirement rendered
   the protester's challenge to the source selection academic.

   By letter of January 14, Tremco filed its current request for a
   recommendation for reimbursement of the firm's costs of filing and
   pursuing its protest.[1] Tremco alleges that the agency's corrective
   action was unduly delayed and that it was taken in response to meritorious
   protest contentions.

   Where a contracting agency takes action which renders a protest academic
   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. 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 Envtl. Solutions, Inc.--Costs,
   B-296136.2, June 20, 2005, 2005 CPD para. 121 at 2-3. Generally, where an
   agency takes corrective action on or before the due date for its report in
   response to the protest, we consider the agency's corrective measures to
   have been taken promptly; a protester does not have to file comments or
   pursue the protest further when the corrective action is taken prior to
   the submission of a report on the merits of the protest. See Alaska
   Structures, Inc.--Costs, B-298156.2, July 17, 2006, 2006 CPD para. 109 at
   4; The Sandi-Sterling Consortium--Costs, B-296246.2, Sept. 20, 2005, 2005
   CPD para. 173 at 2-3.

   In our view, the protester's request for reimbursement of protest costs is
   based on an argument that neither establishes the meritorious nature of
   its protest issues (which, in any event, are unrelated to the basis upon
   which the agency took corrective action) nor demonstrates that the agency
   unduly delayed taking corrective action. The protester instead essentially
   suggests that, since the agency had told it, during its agency-level
   protest, that a bond had been submitted by Alliance, but apparently had
   not noticed the untimely nature of the bond, the agency's subsequent
   rejection of the Alliance quotation based on the untimely bond after
   Tremco filed a protest with our Office constitutes unduly delayed
   corrective action. Tremco generally contends that if the impropriety
   regarding the bond had been discovered during the agency-level protest
   (even though Tremco did not raise any issue regarding the bond), and if
   the Alliance quotation had been rejected earlier because of the
   impropriety, Tremco would not have had to file its protest to our Office,
   and, as a result, it should be reimbursed for the costs of doing so.

   We see no basis to recommend recovery of protest costs here, since
   Tremco's theory lacks the essential elements necessary to support a
   recommendation for reimbursement of protest costs. As an initial matter,
   there is no nexus between Tremco's protest contentions and the basis for
   corrective action; Tremco never raised the timeliness of the awardee's
   bond in its protest to our Office. Thus, Tremco has no basis for
   reimbursement on that issue. See Takota Corp.--Costs, B-299600.2, Sept.
   18, 2007, 2007 CPD para. 171 at 3. In any event, with regard to Tremco's
   specific protest allegations, since there was no report submitted by the
   agency, there is nothing in the record that supports Tremco's general
   allegation that its protest was meritorious. See Alaska Structures,
   Inc.--Costs, B-298575.4, Jan. 22, 2007, 2007 CPD para. 15 at 8 n.8. With
   regard to Tremco's protest, it is clear that the agency's corrective
   action was not unduly delayed, since it was communicated to us by the due
   date for receipt of the agency report in response to the protest. See The
   Sandi-Sterling Consortium--Costs, supra. The record shows that it was only
   after further review of the procurement in preparation of its agency
   report to our Office in response to Tremco's protest that the agency
   discovered the issue that led to the prompt corrective action. Since the
   agency's corrective action has not been shown to have been taken in
   response to clearly meritorious issues raised by the protester, and,
   moreover, was not unduly delayed, there is no basis to recommend
   reimbursement of protest costs.

   The request for reimbursement of costs is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] On the same date, Tremco also filed a protest of the agency's intended
   corrective action, contending that instead of resoliciting the
   requirement, the agency should select Tremco as the successful vendor to
   perform the work required under the RFQ. The agency filed a report on the
   merits of that protest responding to Tremco's protest contentions. Tremco
   failed to file comments on the report, as required, and its protest was
   dismissed.