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The Clark Group, LLC (TCG), an economically disadvantaged, women-owned small business, of Montpelier, Vermont, requests that our Office recommend it be reimbursed the costs associated with pursuing its protest of the award of five indefinite-delivery, indefinite-quantity (IDIQ), task order contracts under solicitation No. W9127N19R0024, issued by the Department of the Army, Corps of Engineers (Corps) for planning and environmental studies. The protester argues that its protest was clearly meritorious and the agency unduly delayed taking and implementing its proposed corrective action.

We deny the request.
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Decision

Matter of:  The Clark Group, LLC‑‑Costs

File:  B-419742.2

Date:  Sept. 1, 2021

Steve M. Sorett, Esq., Kutak Rock LLP, for the protester.
Nathaniel Canfield, Esq., Department of the Army, for the agency.
Sarah T. Zaffina, Esq., and Jennifer D. Westfall-McGrail, 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 does not establish that the agency unduly delayed taking corrective action in the face of a clearly meritorious protest.

DECISION

The Clark Group, LLC (TCG), an economically disadvantaged, women-owned small business, of Montpelier, Vermont, requests that our Office recommend it be reimbursed the costs associated with pursuing its protest of the award of five indefinite-delivery, indefinite-quantity (IDIQ), task order contracts under solicitation No. W9127N19R0024, issued by the Department of the Army, Corps of Engineers (Corps) for planning and environmental studies.  The protester argues that its protest was clearly meritorious and the agency unduly delayed taking and implementing its proposed corrective action.

We deny the request.

BACKGROUND

The Corps awarded five IDIQ contracts and TCG filed a protest with our Office on April 11, 2021, arguing that it should have been awarded one of the five contracts because the agency’s evaluation of TCG’s proposal was unreasonable.  Req. for Costs at 1.  On May 7, 2021, the agency filed a request for dismissal, stating it intended to take corrective action by appointing a new source selection authority, reevaluating the protester’s revised proposal consistent with the solicitation, and making a revised award decision.[1]  Resp. to Req. for Costs at 1; The Clark Group, LLC, B-419742, May 17, 2021 (unpublished decision) at 1.  TCG objected to the proposed corrective action and argued that the Corps should simply award a sixth contract to TCG; it also requested that we retain jurisdiction of the protest until the Corps completed its corrective action.  Id. at 1-2 n.1.

We dismissed the protest as academic on May 17. Id.  In our decision, we stated that the agency’s commitment to reevaluate the protester’s revised proposal and make a new source selection determination was sufficient to render TCG’s complaints academic.  Id. at 1.  We further informed TCG that it could file a new protest in accordance with our Bid Protest Regulations in the event that the protester objects to the new source selection decision.  Id. at 1‑2 n.1; 4 C.F.R. part 21.  On June 1, TCG filed this request for reimbursement of costs.

DISCUSSION

TCG argues that reimbursement of its protest costs is warranted here because its protest was clearly meritorious and the agency unduly delayed taking corrective action.  In this regard, TCG argues that “there is no indication in the record that [the Corps] actually had taken any corrective action as of May 12”, which was the deadline for the agency report.  Req. for Costs at 2.  TCG essentially argues that the agency unduly delayed taking corrective action because the agency failed to implement its proposed corrective action before the agency report was due.  For the reasons discussed below, we deny the request.

When an agency takes corrective action in response to a protest, we may recommend the agency reimburse the protester its protest costs if, under the circumstances, we determine the agency unduly delayed taking corrective action in the face of a clearly meritorious protest.  4 C.F.R. § 21.8(e); Information Ventures, Inc.-‑Costs, B-294580.2 et al., Dec. 6, 2004, 2004 CPD ¶ 244 at 2-3.  In other words, to prevail in its request, the protester must show (1) the agency unduly delayed taking corrective action, and (2) its protest was not only meritorious, but clearly meritorious.  Triple Canopy, Inc.-‑Costs, B‑310566.9, B-400437.4, Mar. 25, 2009, 2009 CPD ¶ 62 at 3.

Here, the record does not indicate the agency unduly delayed taking corrective action.  The agency notified our Office that it intended to take corrective action on May 7, which was prior to the due date for the agency report.  The Clark Group, LLC, B-419742, Dkt. No. 9.  When an agency proposes to take corrective action before the due date set for receipt of an agency report, our Office generally views such action as prompt and will not recommend the reimbursement of costs.  AdaRose Inc.‑‑Protest & Costs, B‑299091.2, Jan. 14, 2008, 2008 CPD ¶ 18 at 3‑5 (denying the protester’s request for costs where the agency has not unduly delayed taking corrective action). 

While we may also recommend the reimbursement of protest costs where an agency unduly delays implementation of the promised corrective action that led to the dismissal of the initial protest, id., there is no evidence in the record here that the agency had unduly delayed implementing its corrective action at the time the protester filed its request for a cost recommendation on June 1.  In assessing whether an agency has unduly delayed the implementation of corrective action, we do not examine the length of elapsed time in a vacuum; instead we consider the reasonableness of the agency’s actions during that time period, the agency’s explanation for the delay, and whether performance of the requirement continued during the delay.  See id. (the agency’s corrective action was implemented promptly and progressed over the course of the following 12 months).  The record indicates that the agency implemented its proposed corrective action promptly and on June 15, the agency assured our Office that the agency was close to completing the corrective action.  Resp. to Req. for Costs at 1.  We find the Corps did not unduly delay implementing the corrective action and therefore because the Corps took prompt corrective action here, there is no basis for recommending reimbursement of TCG’s protest costs.

The request for a recommendation for the reimbursement of costs is denied.

Edda Emmanuelli Perez
General Counsel

 

[1] The agency filed its request for dismissal at 7:44 p.m. Eastern on May 6, 2021, which is after 5:30 p.m. Eastern and therefore, the request for dismissal is deemed filed on May 7, 2021.  4 C.F.R. § 21.0(g); The Clark Group, LLC, B-419742, May 17, 2021 (unpublished decision), Electronic Protest Docketing System (Dkt.) No. 9 (agency request for dismissal).

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