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B-.2, Aircraft & Turbine Support Corporation–Costs, February 12, 2019

(AGENPARL) – Washington (DC), mar 12 febbraio 2019

Decision

Matter of:  Aircraft & Turbine Support Corporation–Costs

File:  B-.2

Date:  February 12, 2019

Milton C. Johns, Esq., and Emily A Spence, Esq., FH+H, PLLC, for the protester.
Alicia  A. Ramsdell, Esq., Defense Logistics Agency, for the agency.
Young H. Cho, Esq., and Peter H. Tran, Esq., Office of the General Counsel, GAO,
participated in the preparation of the decision.

DIGEST

Request for recommendation to reimburse protest costs is denied where the agency did not
unduly delay taking corrective action in the face of a clearly meritorious protest.

Aircraft & Turbine Support Corporation (Aircraft & Turbine), of Fort Myers, Florida,
requests that our Office recommend that the Department of Defense, Defense Logistics Agency
(DLA) reimburse the firm the reasonable costs of filing and pursuing its protest
challenging the terms of Solicitation No. SPRMM1-19-Q-HA, for turbine nozzles
manufactured by General Electric Company (GE), identified by National Stock Number (NSN)

We deny the request.

Aircraft & Turbine filed its protest on November 28, 2018, arguing that the solicitation
was unduly restrictive of competition because it limited acceptable sources to GE (or its
authorized distributors), and that the requirement should have been set aside for small
business concerns.  Protest at 5-6.  On December 6, prior to the agency report
due date, DLA informed the parties that it intended to take corrective action in response
to the protest by cancelling the solicitation.  Notice of Corrective Action. 

On December 13, our Office dismissed the protest because DLA’s corrective action
rendered the protest academic.  Aircraft & Turbine Support Corp., B-,
Dec. 13, 2018 (unpublished decision).

Aircraft & Turbine now requests that our Office recommend it be reimbursed for its costs
of filing and pursuing the protest, including attorneys’ fees.  Req. at 1.  In
this regard, Aircraft & Turbine raises two conflicting arguments.  Aircraft & Turbine
first concedes that the agency took corrective action before the agency report was filed,
but nonetheless requests reimbursement for its costs because its protest grounds were
clearly meritorious.  Id. at 5‑6.  Aircraft & Turbine next argues
that the agency unduly delayed taking action in response to a clearly meritorious protest
because Aircraft & Turbine has “repeatedly raised the same procurement deficiency . . . to
the same contracting department.”  Id. at 5.  In support of this
contention, Aircraft & Turbine alleges that “[t]o date, [Aircraft & Turbine] has filed one
agency level protest and two GAO protests challenging the exact same language in . . . the
[a]gency’s [n]ozzle procurements.”  Id. at 6. 

Under our Bid Protest Regulations, if an agency decides to take corrective action in
response to a protest, our Office may recommend that the agency pay the protester the
reasonable costs of filing and pursuing the protest, including attorneys’ fees and
consultant and expert witness fees.  4 C.F.R. § 21.8(e). This does not mean that costs
should be reimbursed in every case in which an agency decides to take corrective action;
rather, a protester should be reimbursed its costs where an agency unduly delayed its
decision to take corrective action in the face of a clearly meritorious protest. 
Knowlogy Corp.–Costs, B-.2, Aug. 13, 2018, 2018 CPD ¶ 281 at 3. 

When an agency takes corrective action on or before the due date set for receipt of the
agency report, our Office views such action as prompt and will not recommend the
reimbursement of costs.  Innovative Techs., Inc.–Costs, B-.3, Mar. 12,
2018, 2018 CPD ¶ 107 at 2.  We see no reason to deviate from our standard here,
notwithstanding that Aircraft & Turbine previously expressed similar concerns regarding a
different solicitation.  A protester’s actions taken prior to filing its protest with
our Office do not establish that an agency unduly delayed its decision to take corrective
action in the face of a clearly meritorious protest.  Id.  Even if we were
to assume that Aircraft & Turbine raised clearly meritorious protest grounds, DLA took
prompt corrective action in response to Aircraft & Turbine’s protest before submitting an
agency report.  Therefore, Aircraft & Turbine’s request does not meet our standard for
recommending reimbursement of protest costs and we agree with DLA that Aircraft & Turbine
is not entitled to a recommendation that it be reimbursed its protest costs.

Aircraft & Turbine’s alternate argument also does not provide a basis for recommending
reimbursement of protest costs.  We have previously concluded that where an agency
fails to implement a promised corrective action, or implements a corrective action that
fails to address a clearly meritorious issue raised in an initial protest, such that a
protester is put to the expense of subsequently protesting the very same procurement
deficiency, the agency’s action has precluded the timely and economical resolution of the
protest, and constitutes undue delay.  Louisiana Clearwater, Inc.–Recon. and
Costs
, B-.4, B-.5, Apr. 14, 2000, 2000 CPD ¶ 209. 

Here, Aircraft & Turbine concedes, and the record confirms, that it challenged two
different solicitations for two different items with different NSNs.  See
Protest at 4 (“Although Solicitation Two [SPRMM1‑19‑Q‑HA14‑0001] was for a different, but
similar GE Nozzle, it was almost identical to Solicitation One [SPRMM1-18-Q-WN34].”);
Agency Response to Req. at 4 (“GAO Protest B- involved NSN:  2835‑01‑373‑1805
and GAO Protest B‑ involved NSN:  , which are two different
items.”).  These two separate protests were docketed, respectively, as B‑ and
B- with our Office. 

Aircraft & Turbine’s first protest, docketed as B-, was filed on October 26, 2018,
and challenged Solicitation No. SPRMM1‑18‑Q-WN34.  Req. at 3; Agency Response to
Req. at 2; id. encl. 2, Aircraft & Turbine B- Protest.  That protest was
dismissed as academic on November 9, based on the agency’s representation that it would
cancel the solicitation.  See Req. at 4; Agency Response to Req. at 2;
id., encl. 4, Req. for Dismissal for GAO Protest B-; id., encl. 5,
Aircraft & Turbine Support Corp., B‑, Nov. 9, 2018 (unpublished
decision). 

Aircraft & Turbine filed its second protest with our Office, challenging the present
solicitation (SPRMM1‑19‑Q‑HA14‑0001) on November 28.  Again, even were we to assume
that Aircraft & Turbine raised clearly meritorious protest grounds in the B‑ protest,
Aircraft & Turbine’s assertion that it should be reimbursed its protest costs because it
was “forced” to repeatedly incur costs to file protests challenging the very same
procurement deficiency is factually not supported by the record, because, these were two
separate solicitations for different products.  Clearly, these facts do not support
the situation where an agency fails to implement the promised corrective action, or
implements corrective action that fails to address a meritorious issue raised in the
protest that prompted the corrective action, such that the protester is put to the expense
of subsequently protesting the very same procurement deficiency in the same procurement.
 See Taylor Consultants, Inc.–Costs, B‑.3,
Feb. 2, 2009, 2009 CPD ¶ 37 at 3 (denying request for reimbursement where agency
neither failed to implement the corrective action nor unduly delayed the corrective action,
such that the protester was required to file a second protest of the same procurement);
Waltron LLC–Costs, B-.2, Aug. 18, 2006, 2006 CPD ¶ 126 at 4 (denying request
for reimbursement where agency took prompt corrective action in the face of multiple
protests of solicitations for the same product).[1]  Accordingly, Aircraft & Turbine’s
request does not meet our standard for recommending reimbursement of protest costs.[2]
 See Knowlogy Corp.–Costs, supra, at 3-4.   

The request is denied.

Thomas H. Armstrong
General Counsel

Fonte/Source: https://www.gao.gov/products/B-417145.2?source=ra

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