[Protest of Army Decision Not To Follow Recommendation for Corrective Action]

B-218019.2: Aug 8, 1985

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A firm challenged an Army determination that it would not be in the government's best interest to follow a recommendation to consider the feasibility of terminating the awardee's contract and awarding the contract to the protester. GAO found, in a prior decision, that: (1) the Army improperly departed from the evaluation plan described in the solicitation without informing the offerers; (2) the agency action prejudiced the protester because the improper evaluation displaced the protester as the low offerer; and (3) since the protest was filed more than 10 days after the Army had awarded the contract, the Army was not required to suspend performance of the contract. The Army argued that it was not feasible to terminate the awardee's contract because: (1) the cost to the government was estimated to be $1.2 million; (2) the awardee had performed more than 30 percent of the contract; and (3) a major portion of the materials necessary for contract performance had already been received. The protester contended that it filed a timely protest and did all it could to obtain a prompt decision; however, the Army's dilatory actions permitted the high termination costs. GAO found that: (1) there was no basis to question the Army's determination that termination was not feasible; (2) the Army unreasonably excluded the protester from award by not following the stated evaluation plan; and (3) the protester was entitled to the costs of filing and pursuing its protest, including attorney's fees and proposal preparation costs. Accordingly, the protester should submit its claim for such costs directly to the Army.

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