B-298953.2, GPA-Buffer, LP, March 21, 2007
GPA-Buffer, LP requests that
we recommend reimbursement of the costs GPA-Buffer incurred in connection with
filing and pursuing a protest challenging the General Services Administration’s
(GSA) decision to enter into a sole-source agreement with the state of
In August 2005, GSA and the state of
In November 2005, GSA prepared a Justification for Other
Than Full and Open Competition (JOTFOC) for its plan to non-competitively enter
into a lease agreement with the state of
On September 26, 2006, GSA published a “Notice of Intent
to Procure Using Other Than Full and Open Competition” on the FedBizOpps
Internet website, stating: “[GSA]
proposes to enter into a noncompetitive lease procurement using other than full
and open competition with the state of Florida for housing of the long term
space needs of the United States Southern Command . . . in Doral,
Florida.” GSA Motion to Dismiss,
On October 6, GPA filed a protest challenging the bases for the agency’s determination to obtain the state’s 40-acre site as a sole-source procurement. On November 13, the agency responded to GPA’s protest, filing a report with this Office responding to the protester’s various arguments and maintaining that the agency’s sole-source determination complied with applicable law and regulations.
After careful review of the proposal, existing facilities, and headquarters requirements, the Committee believes that a replacement headquarters facility for USSOUTHCOM is indeed necessary. However, entering into a lease for a headquarters facility is neither the most economic nor the most effective means of meeting the needs of the command.
As such, the Committee recommends pursuit of military construction funding to meet USSSOUTHCOM headquarters requirements.
On November 30, GSA advised our Office that it was no
longer pursuing the sole‑source lease agreement with the state of
Thereafter, GPA-Buffer submitted this request for our
recommendation that GSA “pay [GPA-Buffer] its costs of filing and pursing the protest,
including attorneys fees and bid and proposal preparation costs.” Letter from Counsel for GPA-Buffer to GAO (
When an agency takes action which renders a protest moot
prior to our issuance of a decision resolving the merits of the protest, our
Office may recommend, in certain circumstances, that the protester be
reimbursed the reasonable costs of filing and pursuing the protest. 4 C.F.R. sect. 21.8(e) (2006). In this regard, we will generally recommend
reimbursement of protest costs where an agency has delayed taking corrective
action in response to a “clearly meritorious protest.”  See, e.g., Johnson Controls
World Servs., Inc.--Costs, B-299529.4,
Here, based on the record discussed above, we are unable to conclude that the agency took “corrective action” in response to GPA-Buffer’s protest, nor can we conclude that GPA-Buffer’s protest was “clearly meritorious.” As discussed above, GSA and the Army abandoned the proposed acquisition of real property based on the House Armed Services Committees’ direction that “entering into a lease for a headquarters facility is neither the most economic nor the most effective means of meeting the needs of the command,” and the Committee’s recommendation that SouthCom “[pursue] military construction funding to meet USSSOUTHCOM headquarters requirements.” Based on this record, we are unable to conclude that the agency’s action in abandoning the proposed no-cost sole-source acquisition was “corrective action” taken in response to GPA-Buffer’s protest and, similarly, based on our truncated protest process, we cannot conclude that the agency’s proposed sole‑source acquisition of property on a no-cost basis constituted a clear violation of procurement statute or regulation for which there was no “defensible legal position.”
Since we are unable to conclude that the agency delayed taking corrective action in the face of a clearly meritorious protest, we decline to recommend reimbursement of GPA-Buffer’s costs.
The request for reimbursement of costs is denied.
Gary L. Kepplinger
SouthCom currently occupies office space in nine different locations in the
 The provisions of 10 U.S.C. sect. 2662 require the Department of Defense (DOD) to notify its congressional oversight committees prior to conducting certain transactions involving real property.
The agency concluded that, to meet SouthCom’s consolidated office requirements,
a site of at least 40 acres was required.
Prior to executing the JOTFOC, GSA conducted a market survey during
which GSA identified five potential sites that were at least 40 acres in size,
but determined that none of those sites was available at no cost to the
government. AR exh. 10; Contracting
Officer’s Statement at 2. GSA also
obtained data indicating that the appraised value of the state of
The protester’s site, which is one of the nine sites in the greater
 The notification was similarly sent to the U.S. Senate Committee on Armed Services.
 Initially, GSA sought dismissal of the protest, arguing that it was not timely filed. In response, this Office notified counsel for the parties that we did not intend to dismiss the protest prior to receipt of a complete agency report. Thereafter, the agency report was timely submitted to GAO and to the protester.
We have described a “clearly meritorious” protest as one that does not involve a
“close question,” or one where a reasonable agency inquiry would have revealed
the “absence of a defensible legal position.”
See PADCO, Inc., B-289096.3,
 There can be no dispute that the agency acted promptly in responding to the Committee’s directions.