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Logic Gate, LLC--Costs

B-421342.5 Jan 31, 2024
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Logic Gate, LLC, of Chantilly, Virginia, a small business, requests that our Office recommend that the Department of Defense (DOD), Defense Intelligence Agency, reimburse the firm the reasonable costs of filing and pursuing its protest with respect to the establishment of a blanket purchase agreement (BPA) with Assured Consulting Solutions, LLC, of Reston, Virginia, also a small business, under request for quotations (RFQ) No. HHM402-22-Q-0015. We dismissed the protest as academic on October 10, 2023, based upon the agency's corrective action that would, at a minimum, reevaluate all quotations and result in a new source selection decision.

We deny the request.
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DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. No party requested redactions; we are therefore releasing the decision in its entirety.

Decision

Matter of: Logic Gate, LLC--Costs

File: B-421342.5

Date: January 31, 2024

Gunjan R. Talati, Esq., Kilpatrick Townsend & Stockton, LLP, and Daniel J. Strouse, Esq., Cordatis LLP, for the requester.
Max D. Houtz, Esq., Darren S. Gilkes, Esq., William S. Whitman, Esq., and James Durkee, Esq., Department of Defense, for the agency.
Paul N. Wengert, Esq., and Tania Calhoun, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Request for recommendation that the procuring agency reimburse the requester’s costs of filing and pursuing an earlier protest is denied where the agency took corrective action prior to the due date for the agency report, notwithstanding that the agency filed an unsuccessful request for dismissal and produced relevant documents before the agency report due date.

DECISION

Logic Gate, LLC, of Chantilly, Virginia, a small business, requests that our Office recommend that the Department of Defense (DOD), Defense Intelligence Agency, reimburse the firm the reasonable costs of filing and pursuing its protest with respect to the establishment of a blanket purchase agreement (BPA) with Assured Consulting Solutions, LLC, of Reston, Virginia, also a small business, under request for quotations (RFQ) No. HHM402-22-Q-0015. We dismissed the protest as academic on October 10, 2023, based upon the agency’s corrective action that would, at a minimum, reevaluate all quotations and result in a new source selection decision.

We deny the request.

BACKGROUND

This request concerns Logic’s protest before our Office filed on September 1, 2023. Logic’s protest challenged the establishment of a BPA for services of enterprise senior information technology advisors. Logic raised several arguments in the protest, one of which was that DOD had allegedly misevaluated the awardee’s quotation by failing to recognize the awardee’s labor categories that could not be mapped to its Federal Supply Schedule contract as the RFQ required. Protest at 1-3.

A series of exchanges then occurred on the record. Principally, on September 18, prior to the statutory due date for the agency report of October 2, DOD produced some documents relevant to Logic’s protest. The following day, DOD filed a request to dismiss one ground of the protest. Our Office denied the request a day later as insufficient, without setting a schedule for Logic to respond. Logic next objected to DOD withholding some documents, and DOD then supplemented the early document production.

On September 28, Logic filed a supplemental protest using information it received in the early document production. The supplemental protest raised detailed challenges to the evaluation of both firms’ quotations, asserted that evaluation criteria had been applied unequally, and alleged that the resulting source selection decision lacked support. Supp. Protest at 3-55. Our Office directed DOD to file a consolidated agency report addressing both the initial and supplemental protest by October 5.

On October 5, in lieu of filing an agency report, DOD submitted a notice that it would take corrective action by, at a minimum, reevaluating all quotations and making a new source selection decision. Our Office subsequently dismissed Logic’s protests as academic.

Logic then filed this request, seeking a recommendation that DOD reimburse the firm its costs of filing and pursuing its initial and supplemental protests, as provided in our Bid Protest Regulations. 4 C.F.R. § 21.8(e).

DISCUSSION

Logic argues that its protest costs should be reimbursed because its protest was clearly meritorious, and DOD was not prompt in taking corrective action. Although the firm acknowledges that the agency took corrective action before the agency report due date, it argues that the circumstances here justify an exception. In particular, the requester acknowledges that our Office generally uses the filing of an agency report as a determinative factor in whether to recommend reimbursement of costs, but the firm argues “[t]his is one of those circumstances” in which our Office should follow a different principle in which “the agency’s delay in taking corrective action requires a protester to make further use of the protest process in order to obtain relief and causes the protester to incur unnecessary effort and expense in pursuing its remedies before our Office, even where no agency report is filed.” Request at 4-5 (quoting Southern Aire Contracting, Inc.--Costs, B-418070.3, Feb. 21, 2020, 2020 CPD ¶ 73 at 3). Logic argues that DOD “weaponized” the production of documents by producing them early which then compelled Logic to expend unnecessary effort preparing and filing a supplemental protest; whereas appropriate diligence on the agency’s part, Logic contends, would have produced earlier corrective action. Request at 7-8.

Additionally, the requester argues that it should also be reimbursed costs for reviewing and beginning a response to a request for dismissal that DOD filed because the agency filed it after submitting documents, which Logic contends violated our Office’s instruction that dismissal requests should be filed as soon as practicable. Request at 2 n.2, 7 (citing 4 C.F.R. § 21.3(b)). The result of filing the dismissal request after producing documents, and then being required to produce additional documents when the dismissal request was denied was an “expensive procedural mess,” which contravened the purposes of our Office’s Bid Protest Regulations, Logic contends. Reply in Support of Request at 2.

DOD argues that its corrective action was prompt, and therefore the request does not meet the standard for our Office to recommend reimbursement. In particular, the agency argues that it filed a request to dismiss the protest based on proposed corrective action on October 5, in lieu of the consolidated agency report. In other words, that submission was before the deadline to file a consolidated agency report that our Office had set (which was 5:30 p.m. that day), which DOD argues made the corrective action prompt. Agency Response at 4. Additionally, DOD argues that its filing of a request for partial dismissal‑‑even though unsuccessful--does not constitute undue delay that would entitle Logic to reimbursement of its costs since the agency subsequently took corrective action before the agency report due date. Id. at 6.

Under our Bid Protest Regulations, our Office may recommend that a protester be reimbursed the costs of filing and pursuing a protest where the contracting agency decides to take corrective action in response to the protest. 4 C.F.R. § 21.8(e). We will make such a recommendation, however, only where the agency unduly delayed taking corrective action in the face of a clearly meritorious protest. Conversely, our Office will generally not recommend that an agency reimburse a protester its protest costs where, under the facts and circumstances of a given case, the agency has taken reasonably prompt corrective action. TRS Research & Transp. Planning & Servs., Inc.--Costs, B‑290122.2, July 25, 2002, 2002 CPD ¶ 126 at 1-2.

In general, if an agency takes corrective action in response to a protest by the due date of its protest report, we consider such action to be prompt and will not recommend reimbursement of protest costs, even where, as here, the report due date has been extended, because in such circumstances the protester has not been put to the time and expense of filing comments responding to the agency report. Id. at 2. Additionally, the purpose of § 21.8(e) of our Bid Protest Regulations is to encourage agencies to take corrective action in response to meritorious protests before protesters have expended additional unnecessary time and resources pursuing their claims.

Moreover, an agency’s filing of a dismissal request does not represent a lack of diligence where the agency thereafter takes corrective action before the agency report due date. An agency’s pursuit of what we have deemed a “reasonable procedural litigation strategy” does not constitute undue delay in taking corrective action. Carlson Wagonlit Travel‑‑Costs, B‑266337.3 et al., July 3, 1996, 96-2 CPD ¶ 99 at 4. Thus, in defending a protest, an agency is permitted to assert good faith procedural and substantive defenses without having to risk the assessment of costs when subsequently taking prompt corrective action. Id. Similarly, we have not treated the production of relevant documents before the due date for the agency report as a basis to consider the agency’s subsequent corrective action as unduly delayed. Livanta, LLC--Costs, B‑404215.2, Apr. 5, 2011, 2011 CPD ¶ 82 at 3 (where corrective action was otherwise prompt, neither filing of partial dismissal request nor early production of documents justified recommendation that agency reimburse protester’s costs).

Here, Logic has not shown that the circumstances here justify a departure from our decisions. Although we do not question that, as a diligent protester, Logic was required to expend effort in reviewing the dismissal request and document production that was submitted before the agency report, the circumstances do not indicate that DOD’s strategy in this protest was made other than in good faith. Although we denied DOD’s request for dismissal without requiring Logic to file a response, the arguments raised, although not meritorious, were not lacking a good faith basis.[1] Similarly, early document production does not provide a basis to deem the agency’s corrective action as delayed; instead, our Office has described early document production as “highly useful,” and we noted that it can serve a salutary purpose of promoting the early identification of protest issues. Id. Accordingly, Logic has not demonstrated a basis for our Office to recommend that DOD reimburse the firm’s costs of filing and pursuing its protest.

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

Edda Emmanuelli Perez
General Counsel

 

[1] The request for partial dismissal principally argued that the protester’s challenge to the price evaluation did not present an independent and legally sufficient basis of protest. According to the agency, the argument was derivative of the protester’s allegation that the agency had not reasonably evaluated whether vendors properly mapped their proposed BPA labor categories. Req. for Dismissal, EPDS dkt. 21 (B‑421342.3, B‑421342.4).

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