Matter of: BST Systems, Inc.--Request for Declaration of Entitlement to Costs File: B-248310.2 Date: June 5, 1992
Highlights
PROCUREMENT Bid Protests GAO procedures Preparation costs Administrative remedies Protester is not entitled to the costs of filing and pursuing its protest where the agency promptly took corrective action within 2 weeks of when the protest was filed. BST was the low evaluated offeror. Because the contracting officer determined BST was nonresponsible. The agency stated that if a COC were issued. This regulatory provision is intended to allow the award of costs when agencies unduly delay taking corrective action in the face of a clearly meritorious protest. A protester is not entitled to costs where. Corrective action taken by an agency within 2 weeks of when the protest was filed does not constitute undue delay in taking corrective action.
Matter of: BST Systems, Inc.--Request for Declaration of Entitlement to Costs File: B-248310.2 Date: June 5, 1992
PROCUREMENT Bid Protests GAO procedures Preparation costs Administrative remedies Protester is not entitled to the costs of filing and pursuing its protest where the agency promptly took corrective action within 2 weeks of when the protest was filed.
Attorneys
DECISION BST Systems, Inc. requests that our Office declare it entitled to recover the reasonable costs of filing and pursuing its protest challenging the evaluation of its proposal under request for proposals (RFP) No. N00104-91-RJC26, issued by the Department of the Navy.
We deny the request.
BST, a small business concern, filed its protest on April 10, 1992. On April 22, the agency notified our Office that it had improperly evaluated proposals and accordingly, had taken corrective action by reevaluating all proposals, including BST's proposal. After reevaluation, BST was the low evaluated offeror. However, because the contracting officer determined BST was nonresponsible, the agency referred the matter of BST's responsibility to the Small Business Administration for possible issuance of a certificate of competency (COC). The agency stated that if a COC were issued, the contract would be awarded to BST. Based on the corrective action taken by the agency, on April 23, our Office dismissed BST's protest as academic.
On May 20, BST filed a request for a declaration of entitlement to its protest costs, including reasonable attorneys' fees, incurred in filing and pursuing its protest with our Office.
Where an agency takes corrective action prior to our issuing a decision on the merits of a protest, we may declare a protester entitled to "recover reasonable costs of filing and pursuing the protest." Bid Protest Regulations, 4 C.F.R. Sec. 21.6 (e) (1992). This regulatory provision is intended to allow the award of costs when agencies unduly delay 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. A protester is not entitled to costs where, under the facts and circumstances of a given case, an agency takes prompt corrective action in response to the protest. Id.
Here, the agency took corrective action within 2 weeks of BST's filing of the protest. Corrective action taken by an agency within 2 weeks of when the protest was filed does not constitute undue delay in taking corrective action. Id. In fact, such action, taken early in the protest process, is precisely the kind of prompt reaction to a protest that our regulation is designed to encourage. It provides no basis for a determination that the payment of protest costs is warranted. Id. Accordingly, we deny BST's request for a declaration of entitlement to costs.