No Costs for Protester Whose Argument Needed Further Development and thus Could Not Be Characterized as Clearly Meritorious; Noble Supply & Logistics, Inc.—Costs, GAO B-417472.2 et al.

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Request seeking recommendation for reimbursement of protest costs is denied. The agency had taken corrective action after the protester submitted comments on the agency report. While the agency had delayed in taking corrective action, GAO did not believe the protest was clearly meritorious. The protester’s argument required considerable development through the comments and further development of the record at the request of GAO. Accordingly, while meritorious, the protest was not clearly meritorious.

The Air Force issued four RFQs seeking a contractor-operated civil engineer supply store at four different bases. The RFQ required offerors to calculate price based on the items they planned to provide at the proposed stores. Prices were calculated by multiplying a discount rate chosen by the vendor—say 5 percent—by the online retail price of an item. The RFQ provided a list of retailers, called the reference retailers, whose retail prices vendors had to use in calculating their proposal prices.

A prospective bidder, Noble Supply & Logistics, Inc. filed a four protests (one for each RFQ), challenging the terms of the solicitation. One of the reference retailers listed in the RFQ, W.W. Grainger, Inc., was also a prospective bidder. Noble argued that Grainger’s position as a reference retailer gave it unfair competitive advantage. Grainger could underbid competitors and, as a reference retailer, rise prices after award, which would, in turn, deprive the Air Force of the benefit of Grainger’s low bid.

The Air Force submitted an agency report in response to the protests. After Noble filed comments, the GAO attorney assigned to the protest held two conference calls and informed the parties that the RFQs’ structure appeared to prevent vendors from competing on an equal basis. As a result, the Air Force took corrective action to revise the RFQs. Noble then submitted a request for reimbursement of protest costs.

GAO noted that it will recommend reimbursement of costs when an agency delays taking corrective action in the face of a clearly meritorious protest. In this case, the agency had delayed in taking corrective action; it took corrective action after Noble submitted its comments. Nevertheless, GAO did not believe Noble’s protest was clearly meritorious.

A protest is clearly meritorious where the issue it raises is not a close question. Here, the record showed that Noble’s protest required considerable development through its comments as well as further development of the request of the GAO attorneys. Thus, Noble had not shown that its protest was not a close question. Because Noble’s initial protest did not present clearly meritorious issues, GAO had no basis for recommending costs.

Noble is represented by Gary J. Campbell, Nathaniel J. Greeson, and Matt Koehl of Womble Bond Dickinson (US) LLP. The agency is represented by Alexis J. Bernstein, Lawrence Anderson, Isabelle Cutting, and Erica Whelan Retta of the Air Force. GAO attorneys Stephanie B. Magnell and Amy B. Pereira participated in the preparation of the decision.

GAO - Noble Supply & Logistics, Inc.--Costs