B-299600.2, Takota Corporation--Costs, September 18, 2007
Decision
Matter of: Takota
Corporation--Costs
Thomas R. Lynch, Esq., Bradley Arant Rose & White LLP, for the protester.
Timothy A. Chenault, Esq., Department of Homeland Security, for the agency.
Paula A. Williams, Esq., and Ralph O. White, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Request for recommendation that protest costs be reimbursed is denied where the record shows that there was no nexus between the bases of protest and the agency’s corrective action.
DECISION
Takota Corporation requests that we recommend that it be reimbursed the costs of filing and pursuing its protest, including attorneys’ fees, in connection with its protest of invitation for bids (IFB) No. HSCG83-06-B-3WF381, issued by the Department of Homeland Security, United States Coast Guard (the Coast Guard) for replacement pier services at the Coast Guard’s Little Creek Station, in Norfolk, Virginia. In its protest, Takota challenged the agency’s decision to cancel the initial solicitation instead of making award to Takota which had submitted the lowest bid. In addition, Takota challenged the Coast Guard’s award of a contract to Jessico, Inc., at a higher price for the identical or substantially similar work without giving Takota an opportunity to compete.
The Coast Guard issued the canceled IFB as a total small
business set-aside on
Based upon the information provided by the Coast Guard, on
Takota protested the award to our Office on April 2,
asserting, among other things, that this procurement was improperly conducted
on a sole-source basis denying Takota an opportunity to compete for this
work. In preparing its response to the
protest for our Office, the agency reviewed the procurement and realized that the
SBA had not been informed that the prior solicitation had been issued as a
small business set-aside for replacement pier services. By letters dated April 17 and
April 24, the Coast Guard informed the SBA of this omission and sought an
opinion from the SBA about whether the revised solicitation qualified as a new
requirement and, therefore, was appropriately handled as a noncompetitive 8(a)
set-aside. On May 2, the Coast Guard filed
its agency report with our Office responding to the issues raised by the
protester, and advising our Office and Takota that the Coast Guard would take
corrective action if the SBA made a determination that the offering was not a
new requirement that could be placed under the 8(a) program.
The next day, the SBA advised our Office and the parties that, in its view, the requirements in the initial small business set-aside were virtually the same as the requirements offered to the 8(a) business development program. The SBA concluded that the Coast Guard’s requirement for replacement pier services was not a new requirement that could be accepted by the SBA for performance under the 8(a) program. By letter dated May 7, the Coast Guard informed our Office that, consistent with the SBA’s determination, the Coast Guard intended to terminate Jessico’s contract and resolicit the acquisition other than under the 8(a) program. We dismissed the protest as academic on May 9.
Takota asks that we recommend that it be reimbursed its protest costs, including attorneys’ fees, because the Coast Guard had unduly delayed taking corrective action in the face of the protester’s assertedly meritorious protest. The Coast Guard argues against reimbursement of protest costs because, in its view, the corrective action taken was not related to matters raised by the protester in its protest. In addition, the agency argues that its response to the SBA’s opinion was prompt, not unduly delayed, and that the initial protest was not clearly meritorious.
Where a contracting agency takes action which renders a
protest moot 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,
Applying these standards to the present case, we conclude
that it is not appropriate to recommend that Takota recover its protest costs. As an initial matter, there was no nexus
between the bases of protest raised by Takota in its protest letter and the basis
for the Coast Guard’s corrective action decision, which was taken in response
to the SBA’s opinion, and we note that the protester has not shown otherwise. See GPA-Buffer, LP, B-298953.2,
The request for reimbursement of costs is denied.
Gary L. Kepplinger
General Counsel
[1] Section 8(a) of the Small Business Act authorizes the SBA to enter into contracts with government agencies and to arrange for performance of such contracts by awarding subcontracts to socially and economically disadvantaged small businesses. 15 U.S.C. sect. 637(a) (2000).