Request for reimbursement of protest costs is granted. While the protest was pending, GAO suspended the deadline for the agency report. The agency took corrective action having never filed an agency report. The agency alleged that reimbursement of protest costs was not warranted because it had taken corrective action before filing an agency report. GAO, however, found that regardless of the agency report, the agency’s actions had caused the protester to incur unnecessary costs. Under the circumstances, reimbursement was appropriate even though the agency took corrective action before filing an agency report.
The Air Force issued a soliciaton seeking training, operations, communications, and administrative support. The procurement was reserved for small businesses. The soliciaton stated that offerors had to have top secret facility clearance.
Amaze Technologies submitted a proposal. Amaze a mentor-protege joint venture. Each member of Amaze possessed top secret facility clearance, but the joint venture itself did not. While responding to offerors’ questions, the Air Force stated if an offeror was a joint venture, the joint venture entity had to possess top secret facility clearance itself; it was not enough for the joint venture members to have clearance.
Amaze filed a GAO protest, challenging the requirement for joint venture clearance. At that time, another pending protest filed by InfoPoint, LLC had raised an identical issue. GAO asked the SBA to file comments in both the Amaze and InfoPoint protests to express its views on the joint venture issue. In light of the SBA’s involvement, GAO suspended the deadline for the agency report in the Amaze protest.
The SBA filed comments in both protests, disagreeing with the Air Force’s interpretation of the joint venture issue. GAO allowed the parties to file responses to the SBA’s comments. The Air Force disputed the SBA’s conclusion, believing it had discretion to require joint ventures to have facility clearance.
In August 2021, GAO sustained the InfoPoint protest, finding that the Air Force could not require joint venture entities themselves to have facility clearance. Shortly after the InfoPoint decision, the Air Force informed GAO that it planned to take corrective action to accept proposals from joint ventures where the partners themselves had facility clearance.
Amaze requested that GAO recommend reimbursement of its protest costs. The Air Force opposed the request, reasoning that while Amaze’s protest had been clearly meritorious, the agency had not delayed in taking corrective action because it had taken the corrective action before filing an agency report.
GAO noted that for purposes of a request for reimbursement, an agency does not unduly delay when it takes corrective action before the deadline for the agency report. Here, GAO had suspended the deadline for the agency report, so the corrective action had been taken before the agency report was due.
Nevertheless, GAO reasoned there were rare circumstances where the agency’s delay in taking corrective action requires a protester to make further use of the protest process to obtain relief. This causes the protester to incur unnecessary effort and expense and will justify a recommendation of reimbursement even when no agency report is filed.
GAO determined that this was one of the rare situations that warranted reimbursement. Although GAO never received a formal agency report, it determined that the protest record was fully developed by the time the Air Force took corrective action. GAO had received comments from the SBA and responses to those comments from the parties. GAO had notified the parties at that point that, absent a request by the parties to present further information, it believed the record was fully developed. Indeed, all of this additional briefing had occurred after the initial deadline for the agency report.
The Air Force only took corrective action of the InfoPoint decision. This timeline did not indicate that the agency had taken prompt steps to investigate and resolve the issue.
Amaze is represented by Shane J. McCall, Nicole Pottroff, Christopher Coleman, John L. Holtz, and Kevin Wickliffe of Koprince, McCall, Portroff LLC. The agency is represented by Colonel Frank Yoon, Lieutenant Colonel Matthew W. Ramage-White, Major Thomas Pfeifer, and Kevin P. Steins of the Air Force. GAO attorneys David A. Edelstein and Evan C. Williams participated in the preparation of the decision.
