TITLE: B-400168.3, Brian X. Scott--Costs, August 18, 2008
BNUMBER: B-400168.3
DATE: August 18, 2008
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B-400168.3, Brian X. Scott--Costs, August 18, 2008

   Decision

   Matter of: Brian X. Scott--Costs

   File: B-400168.3

   Date: August 18, 2008

   Brian X. Scott for the protester.

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

   Cherie J. Owen, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO participated in the preparation of the decision.

   DIGEST

   Protester's request that the Government Accountability Office (GAO)
   recommend reimbursement of protest costs because the agency took
   corrective action later than the initial agency report due date is denied
   where GAO concludes the agency did not unduly delay its corrective action
   given that GAO granted the agency an extension of time to file its
   administrative report, and the agency announced its intention to take
   corrective action before filing its report.

   DECISION

   Brian X. Scott requests that our Office recommend that the Department of
   the Army pay the protester the reasonable costs of filing and pursuing its
   protest with respect to solicitation No. W91GEU-08-T-5230. We dismissed
   the protest as academic on July 18, 2008 based on the Army's notice of
   corrective action.

   We deny the request.

   On April 23, 2008, the Joint Contracting Command -- Iraq/Afghanistan
   (JCC-IA) issued a solicitation for resource management specialist services
   to support detainee operations in Iraq. Agency Request for Dismissal at 2,
   attach. 1, at 1. The solicitation was originally set to close on May 4.
   Agency Request for Dismissal attach. 1, at 1. After the solicitation had
   closed, agency officials decided that the solicitation should have been
   published on the FedBizOpps (FBO) website. Agency-Level Protest Final
   Decision at 1. Thereafter, the agency published the solicitation on FBO
   and extended the closing date of the solicitation. Id.

   The protester initially filed a GAO protest on May 16, claiming that it
   was improper for the agency to reopen the proposal submission period after
   the solicitation had closed. On May 21, Mr. Scott withdrew his GAO protest
   in order to pursue an agency-level protest. After the agency-level protest
   was denied on May 24, Mr. Scott refiled his protest at GAO on June 3. GAO
   set the date for the agency's submission of its report for July 7. On June
   18, the agency moved to dismiss the protest. On July 3, GAO informed the
   agency that its report requirement was suspended indefinitely while GAO
   considered the request for dismissal. Subsequently, GAO informed the
   parties that an agency report would be needed to resolve the protest.

   On July 17, before filing its report, the agency informed GAO that it
   intended to take corrective action. On July 18, GAO dismissed the protest
   as academic.

   Because the agency did not take corrective action until after the original
   report due date, the protester argues that the agency unduly delayed
   taking corrective action in the face of a clearly meritorious protest.
   Thus, the protester argues that our Office should recommend that the Army
   reimburse protester's costs of filing and pursuing the protest. The agency
   opposes this request, arguing that it did not unduly delay taking
   corrective action and that the protest was not clearly meritorious.

   Our Bid Protest Regulations, 4 C.F.R. sect. 21.8(e) (2008), provide that
   we may recommend that an agency pay protest costs where the agency decides
   to take corrective action in response to the protest. We will make such a
   recommendation, however, only where 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. Information
   Ventures, Inc.-Costs, B-294567.2, Nov. 16, 2004, 2004 CPD para. 234 at 2.
   As a general rule, so long as an agency takes corrective action by the due
   date of its protest report, we regard the action as prompt, and will not
   consider a request to recommend reimbursement of protest costs. CDIC,
   Inc.--Entitlement to Costs, B-277526.2, Aug. 18, 1997, 97-2 CPD para. 52.
   This is the case even where the report due date was extended; in such
   circumstances, although the corrective action may have been somewhat
   delayed relative to the original report date, we do not consider this to
   be an undue delay, since it did not result in the protester's being put to
   the time and expense of filing comments in response to the report. The
   Sandi-Sterling Consortium -- Costs, B-296246.2, Sept. 20, 2005, 2005 CPD
   para. 173 at 3 (citing TRS Research and Transport Planning and Servs.,
   Inc.-Costs, B-290122.2, July 25, 2002, 2002 CPD para. 126 at 2); see also
   Singleton Enterprises-GMT Mechanical, Joint Venture-Costs, B-310454.3,
   Mar. 27, 2008, 2008 CPD para. 61 at 3-4 (no undue delay where agency did
   not file report, but instead, two days after the report was due, announced
   its intention to take corrective action).

   Here, after GAO extended the time for the agency to file a report, the
   agency proposed corrective action in lieu of filing the report. Thus, the
   protester was not required to expend any additional time or resources
   preparing report comments, and the purpose of section 21.8(e) of our
   Regulations, discussed above, has been served. Under these circumstances,
   we consider the corrective action to be prompt; it follows that there is
   no basis for recommending reimbursement of Brian X. Scott's protest
   costs.[1]

   Gary L. Kepplinger
   General Counsel

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   [1] Since we decide this request for reimbursement of costs based on our
   finding that the agency did not unduly delay taking corrective action, we
   need not address whether the protest here was "clearly meritorious."