J&J/BMAR Joint Venture, LLP--Costs, B-290316.7, July 22, 2003
Decision
Matter of: J&J/BMAR Joint Venture, LLP--Costs
File: B-290316.7
Date: July 22, 2003
Joan K. Fiorino, Esq., and John C. Dulske, Esq., Dulske & Fiorino, for the protester.
Capt. Charles K. Bucknor, and Raymond Saunders, Esq., Department of the Army, for the agency.
Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protester's
request for a recommendation that it be reimbursed the cost of filing
an earlier protest challenging a cost comparison under Office of
Management and Budget Circular A-76 is denied where the agency did not
unduly delay implementing the promised corrective action that caused
our Office to dismiss the protest as academic.
DECISION
J&J/BMAR
Joint Venture, LLP requests that our Office recommend that the
Department of the Army reimburse the firm the reasonable costs of
filing and pursuing its protest with respect to solicitation No.
DAKF23-01-R-0201. This solicitation provided for a cost comparison
pursuant to Office of Management and Budget Circular A‑76 to determine
whether to retain in-house or contract out performance of Public Works
Business Center service at Fort Campbell, Kentucky. We dismissed the
protest as academic on October 9, 2002 based on the Army's advice that
it was taking corrective action in the procurement. J&J/BMAR
contends that it should be reimbursed its protest costs because the
Army has not timely implemented the promised corrective action.
We deny the request.
The Army initially decided to retain in-house the Public Works Business
Center service at Fort Campbell after a cost comparison between
J&J/BMAR and the government's most efficient organization (MEO).
On September 5, 2002, subsequent to a decision on its administrative
appeal, J&J/BMAR protested to our Office, challenging the agency's
conduct of the cost comparison. Prior to the filing of the agency's
report on the protest, the Army decided to take corrective action,
which rendered the protest academic. Specifically, the Army stated
that it would set aside the cost comparison that was being protested,
that it would reconvene the source selection evaluation board (SSEB)
and source selection advisory council (SSAC) and appoint a new source
selection authority (SSA), that the SSEB would evaluate whether the
technical performance plan (TPP) implementing the MEO satisfied the
performance work statement (PWS) (and if it did not, the SSEB would
take steps to ensure that the TPP satisfied the PWS), that the TPP
(once it satisfied the PWS) would be compared to the protester's “best
value” offer to ensure that the TPP offered the level and quality
reflected in the protester's proposal, and that the agency would
perform a new cost comparison. On October 9, we dismissed the protest
as academic.
J&J/BMAR argues that it should be
reimbursed for its costs of filing and pursuing the protest because the
agency has unreasonably delayed implementing the promised corrective
action that caused us to dismiss as academic J&J/BMAR's allegedly
clearly meritorious protest.
Our Office may recommend that a protester be reimbursed the costs of
filing and pursuing a protest where the contracting agency decides to
take corrective action in response to the protest. 4 C.F.R. § 21.8(e)
(2003). 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
protesters to expend unnecessary time and resources to make further use
of the protest process in order to obtain relief. AAR Aircraft
Servs.--Costs,
B-291670.6, May 12, 2003, 2003 CPD ¶ 100 at 5. We will also award
protest costs in certain circumstances where an agency unduly delays
the implementation of promised corrective action that led to the
dismissal of an earlier protest. See Commercial Energies, Inc.--Recon. and Declaration of Entitlement to Costs,
B-243718.2, Dec. 3, 1991, 91-2 CPD ¶ 499 at 6. We view the award of
protest costs in such cases as appropriate because a protest is not
truly resolved until the agency implements the promised corrective
action that caused us to dismiss the protest. Id.
Here, we find that the Army has not unduly delayed implementing its
promised corrective action. In this regard, the agency states that it
reconvened the SSEB on November 1, 2002. The SSEB reevaluated the
management team's TPP, which resulted in further discussions with the
management team and revisions to the TPP. Between November 2002, and
May 2003, the Army evaluated the TPP revisions, conducted further
discussions with the TPP, reconvened the SSAC, and provided briefings
to the SSA regarding the TPP.[1]
The Army argues that it has made reasonable progress towards
implementing the promised corrective action, particularly given the
“complexity of the A-76 process” and interruptions occasioned by the
recent conflict in Iraq. In this regard, the agency states that Fort
Campbell is home to the 101st Airborne (Air Assault) Division, which
was mobilized and deployed to Iraq, and that both the SSA and members
of the SSAC (including the SSAC chair) were also deployed to Iraq.
This case is unlike that in Commercial Energies, Inc.
and its progeny, where we recommended that an agency reimburse the
protester for its protest costs because the agency, without adequate
and reasonable explanation, delayed implementing the promised
corrective action that had caused us to dismiss the protest as
academic. See Commercial Energies, Inc.,
supra (5-month delay without implementation of corrective action and without explanation); see also Pemco Aeroplex, Inc.--Recon. and Costs,
B‑275587.5, B-275587.6, Oct. 14, 1998, 97-2 CPD ¶ 102 (4-month delay in
promised revision of solictation without a meaningful explanation for
the delay). Here, the Army took steps within 1 month of the date of
the dismissal of the protest to implement its promised corrective
action, and the record reflects the agency's continued steps towards
conducting a new cost comparison. Moreover, we recognize that the
conflict and deployment of military forces in Iraq posed difficulties
that slowed the implementation of the agency's corrective action. In
sum, we find that the Army has not unduly and unreasonably delayed the
implementation of the corrective action that caused us to dismiss
J&J/BMAR's original protest as academic.[2] At the same time, since it has been 9 months since we dismissed the protest, we expect that the agency will
expedite its implementation of the promised corrective action.
The request is denied.
Anthony H. Gamboa
General Counsel
[1] The agency, however, has not yet performed a comparative assessment of the TPP and J&J/BMAR's best value offer, which the agency informed us it expects to do in July 2003, and the Army states that it expects to make a new cost comparison decision in August.
[2] Because we find that the agency had not unduly delayed implementing its promised corrective action, we do not address J&J/BMAR's argument that its protest was clearly meritorious.