In a decision issued on July 24, 2007, Matter of Panacea Consulting, Inc., the GAO ruled that protest costs should be awarded to the protester because the GAO attorney had indicated, during an Alternative Dispute Resolution proceeding, that the protest would be sustained if a GAO decision was issued.  The protester alleged that the agency improperly gave disproportionate weight to price versus technical considerations in the source selections, and failed to document the basis for the numeric scores assigned to the submissions during its evaluation and source selection.   In response to the comments of the GAO attorney, the agency advised the GAO that it intended to take corrective action by reevaluating the submissions in a manner consistent with the terms of the solicitations, and that it also intended to prepare narrative materials in support of its evaluation.  The agency then conducted a reevaluation and made the same source selection it had made in the fist place.  

When a procuring agency takes corrective action in response to a protest, the GAO may recommend that the agency reimburse the protester its protest costs where, based on the circumstances of the case, the GAO determines that the agency unduly delayed taking corrective action in the face of a clearly meritorious protest, thereby causing the protester to expend unnecessary time and resources to make further use of the protest process in order to obtain relief. Bid Protest Regulations, 4 C.F.R. sect. 21.8(e) (2007).  A protest is clearly meritorious when a reasonable agency inquiry into the protest allegations would show facts disclosing the absence of a defensible legal position.

The record showed that the agency had weighted the evaluation criteria differently during the evaluations than the manner stated in the solicitations.  It likewise should have been apparent to the agency that the evaluation records were legally inadequate for proper source selection decisions, since the record contained no information explaining the basis for the scoring of the submissions or the source selection decisions. Blue Rock Structures, Inc., B-293134, Feb. 6, 2004, 2004 CPD para. 63 at 5 (where agency fails to adequately document the basis for its source selection decision, it runs the risk that GAO may be unable to determine that the agency’s decision is reasonable).  The GAO therefore concluded that the protest grounds in question were clearly meritorious.

The agency’s assertion that reimbursement was not warranted because the reevaluation resulted in the same source selection decision was without merit. Where an agency has taken corrective action, the determinative considerations for the GAO in deciding whether costs should be reimbursed are whether the corrective action was unduly delayed (here, the agency does not argue that it was prompt, and we generally consider action to be unduly delayed where, as here, it is taken after the agency report due date), and whether the arguments raised were clearly meritorious. The fact that a reevaluation as part of corrective action resulted in the same source selection decision had no bearing on the GAO’s assessment.