GAO Denies Costs in Deja Vu Protest

One GAO protester is starting to feel like Bill Murray’s character from Groundhog Day, and not in a good way. In a recent series of protests, a contractor challenged the terms of various solicitations as unduly restrictive of competition. These protests resulted in successive corrective actions.

Growing weary of continually protesting the same issue without tangible resolution, the protester finally requested GAO recommended it be reimbursed for its costs. Unfortunately for the protester, GAO had less sympathy for its situation.

Aircraft & Turbine Support Corporation—Costs, B-417145.2 (Comp. Gen. Feb. 12, 2019), features a fairly involved procedural history. In October 2018, Aircraft & Turbine filed a protest of a Defense Logistics Agency (“DLA”) procurement for turbine nozzles. Aircraft & Turbine argued the terms of that solicitation were unduly restrictive because it limited offerors to GE or its certified distributors. In response to the protest, DLA notified GAO that it intended to cancel the solicitation. As such, the protest was dismissed as academic.

Roughly a month later, in November 2018, Aircraft & Turbine filed a second protest of a DLA procurement for turbine nozzles. The second procurement involved nozzles that were substantially similar—but not identical—to the nozzles challenged in the October 2018 protest. In response, DLA notified GAO of its intent to take corrective action. As before, GAO dismissed Aircraft & Turbine’s protest as academic following DLA’s corrective action notice.

Following the dismissal of its protest, Aircraft & Turbine filed a request with GAO to recommend DLA reimburse Aircraft & Turbine for its protest-related costs. This was an unusual request. GAO has consistently held that protesters are only entitled to recover costs if the agency unduly delays in taking corrective action in the face of a clearly meritorious protest. In GAO’s view, “[w]hen an agency takes corrective action on or before the due date set for receipt of the agency report, our Office views such action as prompt and will not recommend the reimbursement of costs.”

With respect to Aircraft & Turbine’s second protest, given DLA had taken corrective action before it was required to file its agency report, Aircraft & Turbine was going to be hard-pressed to demonstrate it was entitled to costs. Nevertheless, Aircraft & Turbine filed a request and advanced a novel theory for entitlement, which GAO summarized as follows:

Aircraft & Turbine next argues that the agency unduly delayed taking action in response to a clearly meritorious protest because Aircraft & Turbine has “repeatedly raised the same procurement deficiency . . . to the same contracting department.” In support of this contention, Aircraft & Turbine alleges that “[t]o date, [Aircraft & Turbine] has filed one agency level protest and two GAO protests challenging the exact same language in . . . the [a]gency’s [n]ozzle procurements.”

Given number of Nozzle procurements Aircraft & Turbine challenged, it argued GAO should award it costs.

GAO was not convinced. The principal concern for GAO was the similarities between the two procurements. Since the two protests challenged the restrictions of different nozzle parts, GAO did not believe cost recovery was appropriate. As GAO explained, “even were we to assume that Aircraft & Turbine raised clearly meritorious protest grounds in the [October 2018] protest, Aircraft & Turbine’s assertion that it should be reimbursed its protest costs because it was “forced” to repeatedly incur costs to file protests challenging the very same procurement deficiency is factually not supported by the record, because, these were two separate solicitations for different products.” As such, GAO denied the cost recovery.

GAO’s conclusion that Aircraft & Turbine is not entitled to costs is disappointing. While GAO is correct that the two solicitations challenged by Aircraft & Turbine were for different nozzles, it is not apparent from the decision whether GAO investigated how similar the two solicitations were and whether the same agency officials were overseeing them. If, as the protester seemed to indicate, the same agency officials were responsible for identical errors in closely-related solicitations, it doesn’t seem unreasonable to request costs if the agency didn’t voluntarily correct a defect it should have known about.

Ultimately, it looks like Aircraft & Turbine is fighting a larger battle with DLA regarding the restrictions placed on turbine part procurements. Unfortunately for Turbine & Aircraft, GAO’s decision is going to make cost recovery difficult so long as DLA continues taking corrective action before filing an agency report.

Questions about this post? Or need help with a government contracting legal issue? Email us or give us a call at 785-200-8919.

Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook.