Matter of: Network Software Associates, Inc. - Request for Declaration of Entitlement to Costs File: B-250030.4 Date: January 15, 1993 72 Comp.Gen. 78

B-250030.4: Jan 15, 1993

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Procurement Bid Protests GAO procedures Preparation costs Administrative remedies Protester is not entitled to reimbursement of the costs of filing and pursuing protest under section 21.6(e) of Bid Protest Regulations where the agency took prompt . Procurement Bid Protests GAO procedures Preparation costs Administrative remedies Protester is not entitled to reimbursement of the costs of filing and pursuing protest under section 21.6(e) of Bid Protest Regulations after agency takes corrective action where protest concerning proper interpretation of the solicitation's print requirements was not clearly meritorious. NSA contended that Attachmate's proposed 3270 low memory emulation program was noncompliant with the requirement that "[a]ll IBM 3270 print capabilities shall be fully supported. . . .".

Matter of: Network Software Associates, Inc. - Request for Declaration of Entitlement to Costs File: B-250030.4 Date: January 15, 1993 72 Comp.Gen. 78

Procurement Bid Protests GAO procedures Preparation costs Administrative remedies Protester is not entitled to reimbursement of the costs of filing and pursuing protest under section 21.6(e) of Bid Protest Regulations where the agency took prompt -- within 6 working days -- corrective action in response to additional protest (of improper post-best and final offer discussions with only one of the firms in the competitive range) filed alter receipt of the agency report. Procurement Bid Protests GAO procedures Preparation costs Administrative remedies Protester is not entitled to reimbursement of the costs of filing and pursuing protest under section 21.6(e) of Bid Protest Regulations after agency takes corrective action where protest concerning proper interpretation of the solicitation's print requirements was not clearly meritorious.

Attorneys

Network Software Associates, Inc. (NSA) requests that our Office declare it entitled to recover the reasonable costs of filing and pursuing its protest with respect to the award made to Attachmate Corporation under request for proposals (RFP) No. DABT60-91-R-0046, issued by the Department of the Army for IBM 3270 personal computer emulation software.

We deny the request.

As issued, the solicitation specifications provided that:

C.2.3. All IBM 3270 print capabilities shall be fully supported on PC [personal computer] - attached printers.

* * * * *

C.2.6. While attached to either of the hosts, the PC utilizing the proposed software and circuitry shall be able to utilize the following multiple, concurrent session capabilities:

c.2.6.1. Two concurrent interactive terminal host sessions. . . and one host print session. . .

Subsequently, by amendment No. 0003, the Army revised the specifications to read:

C.5. For the Low Memory 3270 Software all previous paragraphs (C.2.1. through C.4.) apply except for the following:

C.5.1. Change C.2.6.1. to read as follows: One interactive host session.

In other words, with respect to the required Low Memory 3270 Software, amendment No. 0003 revised paragraph C.2.6.1. of the specifications to delete the reference to a required "host print Session"; the amendment, however, did not change the language of paragraph C.2.3., which continued to state that "[a]ll IBM 3270 print capabilities shall be fully supported. . ."

In its protest filed on August 24, 1992, NSA contended that Attachmate's proposed 3270 low memory emulation program was noncompliant with the requirement that "[a]ll IBM 3270 print capabilities shall be fully supported. . . ." Although the Army conceded, in its initial motion to dismiss filed on August 28 and in the agency report filed on September 28, that Attachmate's proposed low memory software will not support print functions, the agency denied that the solicitation as amended required the low memory software to support print functions. While paragraph C.2.3. of the specifications was not specifically listed as one of the paragraphs not applying to the low memory software, the agency argued that it was clear from the amendment No. 0003 deletion of the paragraph C.2.6.1. requirement for low memory software support of a "host print session" that the requirement in paragraph C.2.3. for all IBM 3270 print capabilities to be supported likewise no longer applied to the low memory software.

On October 8, based on information in the agency report, NSA filed an additional protest. NSA stated that after the conclusion of discussions and receipt of best and final offers (BAFO), Attachmate had been permitted to revise its proposed 90-day delivery schedule to the required 30 days after issuance of delivery order commitment. NSA contended that the agency's reopening of discussions with only Attachmate was improper. On October 16, 6 working days later, the Army advised our Office that it had concluded that the reopening of discussions only with Attachmate had been improper. The agency stated that, based on this conclusion, it would immediately take the following corrective action: terminate Attachmate's contract for the convenience of the government; obtain approval to reopen discussions with all offerors; and revise the specifications "to clearly reflect the Government's requirements." We thereupon dismissed NSA's protests as academic.

NSA asks that we declare it entitled to recover its protest costs. According to NSA, the agency's corrective action was based both on its initial protest and on its second protest. NSA maintains that since the Army did not take corrective action until 44 days after the filing of its initial protest - at which point NSA already had incurred the expense of responding to the agency's motion to dismiss and commenting on the administrative report - the corrective action was unduly delayed so as to entitle the firm to the reimbursement of its protest costs.

Under the Competition in Contracting Act of 1984, our Office may find an entitlement to costs only where we find that an agency's action violated a procurement statute or regulation. 31 U.S.C. Sec. 3554(c)(1) (1988). Our Bid Protest Regulations provide that a protester may be entitled to reimbursement of its costs of filing and pursuing a protest where the contracting agency decides to take corrective action in response to a protest. 4 C.F.R. Sec. 21.6(e) (1992). This does not mean that costs are due in every case in which an agency takes corrective action; rather, we will find an entitlement to costs only where an agency unduly delayed taking corrective action in the face of a clearly meritorious protest. Oklahoma Indian Corp. -- Claim for Costs, 70 Comp.Gen. 558 (1991), 91-1 CPD Para. 558. Thus, as a prerequisite to entitlement to costs where a protest has been settled by corrective action, not only must the protest have been meritorious, but it also must have been clearly meritorious, i.e., not a close question. The mere fact that an agency takes corrective action does not establish that a statute or regulation clearly has been violated. See David Weisberg - Request for Declaration of Entitlement to Costs, 71 Comp.Gen. 498 (1992), 92-2 CPD Para. 91; ManTech Field Eng'g Corp. - Request for Reconsideration, B-246152.5, Dec. 17, 1992, 92-2 CPD Para.422; Carl Zeiss-Request for Declaration of Entitlement to Costs, B-247207.2, Oct. 23; 1992, 92-2 CPD Para. 274.

We find that NSA's initial August 24 protest of Attachmate's compliance with the solicitation's printer requirement does not furnish any basis for an award of protest costs. NSA advances one interpretation of the specifications - that the requirement in specification paragraph C.2.3. to fully support IBM 3270 print capabilities applied to the low memory software. The Army advances another - that amendment No. 0003 was intended to delete any print requirement as it applied to the low memory software. Whether either interpretation is correct, or whether the specifications were ambiguous, is not readily apparent, but instead would require substantial further analysis. At most, the issue of the proper interpretation of the solicitation's amended print requirements was a close question. In other words, NSA's initial protest was not clearly meritorious and therefore does not warrant the award of costs.

Further, the Army took corrective action specific to NSA's second October 8 protest 6 working days after NSA filed the protest. Such corrective action, occurring only 6 working days after the protest was filed, is precisely the kind of prompt reaction to a protest that our Regulations are designed to encourage, see Datavault Corp. - Request for Declaration of Entitlement to Costs, B-245991.3, May 29, 1992, 92-1 CPD Para. 476 (delay of less than 1 month between filing of protest and corrective action does not constitute undue delay), and thus does not warrant a finding of entitlement to costs.

Accordingly, the request for a declaration of entitlement to costs is denied.