United States General Accounting Office

Washington, DC 20548 

Comptroller General

of the United States

Decision 

Matter of: M&S Farms, Inc.--Costs 

File: B-290599.3 

Date: April 8, 2003 

Richard C. Bradley III, Esq., Daniel, Coker, Horton & Bell, for the protester. 

Henry J. Gorczycki, Esq., and Guy R. Pietrovito, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST 

Where an agency’s implementation of the recommendation in a prior decision is 

protested, and the agency promises corrective action without undue delay, leading to 

dismissal of the protest, General Accounting Office will not recommend that the 

agency pay the protester’s costs of pursuing the protest. 

DECISION 

M&S Farms, Inc. requests that our Office recommend reimbursement of its protest 

costs in connection with a protest of the amended terms of solicitation 

No. NAR020009, issued by the Department of the Interior, Bureau of Land 

Management, for a wild horse and burro adoption holding facility. That protest was 

dismissed after the agency promptly determined that corrective action was 

appropriate. 

We deny the request. 

On May 27, 2002, M&S Farms protested an award under the solicitation as previously 

issued. Our Office sustained the protest on the basis that the agency’s evaluation 

was materially defective under every evaluation factor, as was the source selection 

decision. We recommended, in part, that the agency review its needs and amend, as 

appropriate, the solicitation and reimburse the protester its costs of pursuing the 

protest.1

 M&S Farms, Inc., B-290599, Sept. 5, 2002, 2002 CPD ¶ 174. 

 

1

 The agency has agreed to pay the protester’s claim for the costs of filing and 

pursuing the prior protest. 
Page 2 B-290599.3 

On November 6, the agency amended the solicitation. On December 9, several 

weeks prior to the due date for revised proposals, M&S Farms protested the terms of 

the solicitation, complaining that the terms were unduly restrictive of competition. 

On December 17, the agency notified our Office that it was taking corrective action 

by further amending the solicitation to address and resolve the protester’s 

objections. On December 18, we dismissed the protest as academic. 

On December 30, M&S Farms filed this request for reimbursement of the costs it 

incurred pursuing its second protest. 

Our Bid Protest Regulations, 4 C.F.R. § 21.8(e) (2003), provide that where an agency 

takes corrective action in response to a protest, our Office may recommend that the 

agency pay the protester its costs of filing and pursuing the protest. The intention 

behind implementing this regulation was not to award protest costs in every case in 

which an agency takes corrective action, but rather where an agency unduly delays 

taking corrective action in the face of a clearly meritorious protest. American Lawn 

Serv., Inc.--Entitlement to Costs, B-271039.2, May 15, 1996, 96-1 CPD ¶ 228 at 2. 

Here, the agency’s promised corrective action that resulted in dismissal of M&S 

Farms’ second protest as academic was submitted 8 days after the second protest 

was filed. We agree with the agency that the corrective action here was not unduly 

delayed. 

M&S Farms argues, however, that in cases where an agency promises corrective 

action that results in dismissal of a protest and the agency subsequently fails to 

adequately implement the promised corrective action, we have recommended the 

reimbursement of protest costs. See, i.e., Louisiana Clearwater, Inc.—Recon. and 

Costs, B-283081.4, B-283081.5, Apr. 14, 2000, 2000 CPD ¶ 209 at 5-6 (reimbursement 

of protest costs may be appropriate where the agency has promised to take 

corrective action leading to dismissal of a clearly meritorious protest and either 

(1) does not timely implement the promised corrective action, or (2) implements 

inadequate corrective action). 

We do not find the rationale of Louisiana Clearwater, Inc. and similar cases 

applicable here. The protester’s first protest challenging the agency’s evaluation and 

source selection was resolved by our decision sustaining that protest. In response to 

our decision, the agency reviewed its needs and decided to amend the solicitation. 

M&S Farms’ second protest challenged the solicitation amendments. Although M&S 

Farms argues that these new, alleged solicitation defects should be treated as part of 

the original protest, we find that they are a separate protestable event, and, as noted 

above, the agency took prompt corrective action in response to this second protest. 
Page 3 B-290599.3 

The request for our recommendation that M&S Farms be reimbursed its protest 

costs for its second protest is denied. 

 

Anthony H. Gamboa 

General Counsel