Comptroller General

United States Government Accountability Office

Washington, DC 20548 

of the United States

DOCUMENT FOR PUBLIC RELEASE

The decision issued on the date below was subject to a 

GAO Protective Order. This redacted version has been 

approved for public release. 

Decision 

Matter of: RANA Technologies--Costs 

File: B-400471.2 

Date: February 3, 2009 

Gerald H. Werfel, Esq., Pompan, Murray & Werfel, PLC, for the protester. 

Maj. David Abdalla, Department of the Army, for the agency. 

Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office of the 

General Counsel, GAO, participated in the preparation of the decision. 

DIGEST 

Request for recommendation that protest costs be reimbursed is denied where 

record establishes neither that action rendering the protest academic was taken in 

response to the protest nor that protest was clearly meritorious. 

DECISION 

RANA Technologies of Kabul, Afghanistan requests that we recommend that it be 

reimbursed the costs of filing and pursuing its protest of the rejection of its proposal 

under request for proposals (RFP) No. W91B4M-08-R-4040, issued by the Department 

of the Army, Kabul Regional Contracting Center for printers, copiers, and ink and 

toner cartridges. We dismissed the protest after the agency notified us that it had 

cancelled the solicitation. The protester contends that its protest was clearly 

meritorious and that the agency unreasonably delayed taking corrective action in 

response to it, and that it is therefore entitled to its protest costs. 

We deny the request. 

The RFP, as originally issued, included a schedule consisting of 15 contract line 

items (CLIN). Each CLIN identified a particular type of printer (or other item of 

equipment, such as ink cartridge) by make and model number; the CLIN also 

specified the quantity of the item to be furnished. For example, CLIN 0003 identified 

the item to be provided as follows: 
Page 2 B-400471.2 

HP LaserJet 3600dn Printer 

FFP 

Model: Q5988A/See section 2.3 in the statement of work (SOW) for 

minimum specifications 

FOB: Destination 

RFP at 3. Section 2.3 of the SOW defined the required characteristics of the printers, 

such as print quality, processor speed, memory, and warranty. With respect to 

power for this model, the SOW specified 220-240 volts. Section 2.3 also instructed 

offerors that “[n]o substitutions are allowed on this item to ensure maintenance 

sustainability.” Id. at 26. The solicitation provided for award to the offeror 

submitting the lowest-priced proposal “meeting or exceeding the acceptability 

standards as described in the statement of work.” Id. at 14. 

Prior to the closing date for submission of proposals, the agency issued two 

amendments to the RFP. Of relevance to this protest, amendment No. 0001 included 

a response to an offeror’s question regarding CLIN 0003. The offeror noted that 

while the SOW had specified an HP model 3600dn with 220 volts power, his research 

had revealed that the model 3600dn was not available in 220 volts; accordingly, the 

offeror sought permission to submit an alternative model that was available in 220 

volts. RFP amend. 1, at 3. The agency responded that the offeror was correct that 

the model specified was not available and that the solicitation would be updated 

with new specifications. The amendment went on to advise offerors as follows with 

regard to CLIN 0003: 

The CLIN description has changed from HP LaserJet 3600dn 

Printer to HP Color LaserJet cp3505dn Printer. 

The CLIN extended description has changed from Model: 

Q5988A/See section 2.3 in the statement of work (SOW) for minimum 

specifications to Model: CB443A/See section 2.3 in the statement of 

work (SOW) for minimum specifications. 

Id. The amendment also revised the item description for CLINs 0008, 0009, 0010, and 

0011, all of which were for print cartridges, to specify cartridges for the new printer 

model cp3505dn. While the agency revised the line item descriptions and the 

corresponding specifications in the SOW, it did not furnish a revised version of the 

price schedule incorporating the amended descriptions. 

The protester submitted a proposal prior to the specified closing date. RANA 

entered its prices on the schedule that had been furnished with the original 

solicitation; that is, it furnished a price for CLIN 0003 on a page that described that 

item as an HP LaserJet 3600dn printer (and prices for line items 0008, 0009, 0010, and 

0011 on pages that described the items to be furnished as HP Laserjet 3600dn print 
Page 3 B-400471.2 

cartridges). The protester also furnished a signed acknowledgment of amendment 

0001. 

Upon review of the proposals received, the contracting officer determined that the 

protester’s overall price was low. The agency’s technical evaluator determined, 

however, that RANA had proposed HP LaserJet 3600dn printers and cartridges rather 

than the required HP LaserJet cp3505dn printers and cartridges and that its proposal 

was therefore technically unacceptable. Accordingly, the contracting officer 

selected the next lowest-priced proposal, which had been determined technically 

acceptable, for award. Upon learning of the rejection of its proposal, RANA 

requested, and was furnished with, a debriefing; RANA then protested to our Office. 

After award, the awardee notified the contracting officer that it could not fulfill the 

RFP’s requirements, and the government terminated its contract. While at the time it 

submitted its agency report responding to RANA’s protest, the agency intended to 

proceed with award to the offeror next in line for award, the agency subsequently 

notified our Office that it had decided to cancel the RFP and issue a new solicitation 

for the items. On October 20, we dismissed RANA’s protest as academic. 

By letter dated November 4, RANA requested that we recommend that it be 

reimbursed for the reasonable costs of filing and pursuing its protest. RANA alleged 

that the protest raised clearly meritorious issues that would have warranted a 

decision on the merits in its favor, and that the agency unduly delayed by failing to 

take corrective action until after it had submitted, and the protester had commented 

on, the agency report. 

Under the Competition in Contracting Act of 1984, our Office may recommend that 

protest costs be reimbursed where we find that the agency’s action violated a 

procurement statute or regulation. 31 U.S.C. § 3554(c)(1) (2000). Our Bid Protest 

Regulations provide that where the contracting agency decides to take corrective 

action in response to a protest, we may recommend that the protester be reimbursed 

the costs of filing and pursuing its protest, including reasonable attorneys’ fees. 

4 C.F.R. § 21.8(e) (2008). This does not mean that we will recommend that costs be 

reimbursed in every case in which an agency takes action that renders a protest 

academic; rather, we will recommend that a protester be reimbursed its costs only 

where the record establishes that (1) the agency action that rendered the protest 

academic was taken in response to the protest, see Takota Corp.--Costs, B-299600.2, 

Sept. 18, 2007, 2007 CPD ¶ 171 at 3, and (2) the agency unduly delayed taking the 

action in the face of a clearly meritorious protest. Baine Clark--Costs, B-290675.3, 

Sept. 23, 2002, 2002 CPD ¶ 166 at 2. We consider a protest to be clearly meritorious 

when a reasonable agency inquiry into the protester’s allegations would show that 

the agency lacked a defensible legal position. SDA, Inc.--Costs, B-298216.2, Sept. 11, 

2006, 2006 CPD ¶ 133 at 2. 
Page 4 B-400471.2 

Here, it is not clear from the record that the agency decided to cancel the RFP in 

response to RANA’s protest. While we recognize that the contracting officer 

represented in the agency’s request for dismissal of the underlying protest that the 

solicitation was being cancelled “due to” RANA’s protest, Agency Letter to GAO, 

Oct. 15, 2008, at 2, which suggests that there was a link between the protest and the 

decision to cancel, the agency explained in its response to the protester’s request for 

costs that it did not decide to cancel in response to RANA’s protest; rather, the 

agency maintained that it decided to take this action “only after learning that the 

awardee, as well as offerors next in line for award, were unwilling or unable to 

commit to the prices originally offered in their proposals.” Agency Response to 

Protester’s Request for Recommendation for Reimbursement, Nov. 17, 2008, at 2. 

Whether the agency decision to cancel was a response to RANA’s protest is not 

critical to the outcome of our decision here, however, because in any event we are 

not persuaded that RANA’s protest was clearly meritorious. RANA argues that by 

submitting its prices on the price schedule furnished in the RFP and acknowledging 

amendment No. 0001, it committed itself to deliver the items identified in the 

amendment for the prices that it entered on the schedule, and that its protest 

objecting to the rejection of its proposal as technically unacceptable was thus clearly 

meritorious. We disagree. In our view, it was unclear from RANA’s proposal 

whether it was offering to furnish the items described in the price schedule (i.e., the 

model 3600dn printer and cartridges) or the items described in the amendment (i.e., 

the model cp3505dn printer and cartridges). Faced with an ambiguity as to what the 

protester was proposing to furnish (and thus an ambiguity as to whether it was 

proposing to furnish items meeting the requirements of the solicitation, as amended), 

we think that the agency’s rejection of RANA’s proposal was reasonable. See All 

Bldg. Servs., Inc., B-293519, Mar. 23, 2004, 2004 CPD ¶ 73 at 2-3. 

The request for a recommendation that the agency reimburse RANA’s protest costs 

is denied. 

Gary L. Kepplinger 

General Counsel