United States Government Accountability Office 

Washington, DC 20548 

Comptroller General

of the United States

 

Decision 

Matter of: Taylor Consultants, Inc.--Costs 

File: B-400324.3 

Date: February 2, 2009 

Sean D. Forbes, Esq., and Bryant S. Banes, Esq., Neel Hooper & Banes, PC, for the 

protester. 

Lt. Col. Steven P. Cullen, Department of the Army, for the agency. 

Peter D. Verchinski, Esq., and Guy R. Pietrovito, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST 

Request for recommendation that agency reimburse protester its costs of filing and 

pursuing protests is denied where the agency did not unduly delay implementing 

promised corrective action and the record does not establish that the protest 

grounds were clearly meritorious. 

DECISION 

Taylor Consultants, Inc. of Fairfax, Virginia requests that we recommend that the 

Department of the Army reimburse the costs Taylor incurred in filing and pursuing 

the firm’s two prior protests of the terms of request for proposals (RFP) No. W9133L08-R-2016, issued by the Army seeking to issue a task order under a vendor’s federal 

supply schedule (FSS) contract for services in support of the National Guard’s Youth 

Development Program. 

We deny the request. 

In its first protest, Taylor raised four challenges to the terms of the RFP: that the 

RFP should be set aside for service-disabled veteran-owned small businesses 

(SDVOSB), that the RFP improperly bundled requirements, that the procurement 

was tainted by bias and a conflict of interest, and that the agency was improperly 

using the federal supply schedule. Prior to issuing a report in response to the 

protest, the agency informed our Office that it would amend the RFP to “accurately 

reflect the Government’s requirements and the method by which proposals will be 

evaluated,” and that before amending the solicitation, the agency “will review 

whether any portion of [the] requirement was improperly bundled and whether any 
part of the entire requirement should be set aside pursuant to FAR [Federal 

Acquisition Regulation] Part 19 [Small Business Programs].” Army Memorandum, 

July 28, 2008, at 1. The Army also stated that, before making award, it would 

perform and document an organizational conflict of interest analysis. We dismissed 

Taylor’s first protest as academic, based upon this proposed corrective action. 

The contracting officer (CO) subsequently concluded, as documented in two 

memoranda, that the RFP did not have to be set aside for SDVOSBs, that the RFP did 

not reflect an improper bundling, and that there was no improper bias or conflict of 

interest apparent.1 The Army accordingly established a new closing date for the 

receipt of proposals. Taylor then filed a second protest, raising essentially the same 

protest grounds as its prior protest. In response and prior to submitting a report 

responding to the protest, the Army informed our Office that it would cancel the 

RFP, issue a new solicitation that was set aside for SDVOSB concerns, and solicit 

new proposals. We dismissed Taylor’s second protest as academic. 

Taylor requests that we recommend that the Army reimburse the firm for the protest 

costs associated with its two prior protests because, in Taylor’s view, the Army did 

not implement the corrective action that the Army previously promised such that 

Taylor was required to protest again.2 

 

1

 These determinations were based, in part, on the CO’s finding that the requirements 

being procured here differed from Taylor’s prior contract (which apparently had 

been set aside for SDVOSBs) such that a set-aside was not required; that this 

contract will “provide one point of contact for the 54 states, territories, and district 

program” such that it was not improperly bundled; and that a certain individual will 

be precluded from the procurement such that there will be not be even the 

appearance of bias or conflict of interest. CO’s Memorandum, Aug. 29, 2008, at 1; 

CO’s Memorandum, Sept. 1, 2008, at 1.

2

 The protester also asserts that the Army failed to remove the appearance of bias 

and a conflict of interest from this procurement. Specifically, Taylor argues that the 

Army did not properly investigate and mitigate another firm’s improper competitive 

advantage due to a personal relationship an employee of that firm has with an 

individual in the Army’s contracting office. Taylor contends that the Army’s plan to 

ensure that the individual in the Army’s contracting office has no involvement with 

the procurement is inadequate, and that the other firm must be excluded from the 

competition. We disagree. The Army’s decision to exclude the individual with the 

alleged personal conflict of interest from involvement with this procurement 

effectively removes the potential personal conflict of interest here. See generally

Visucom Prods. Inc., B-240847, Dec. 17, 1990, 90-2 CPD ¶ 494 

(agency’s decision to exclude government official from evaluation panel to insure 

impartiality was reasonable). Given that the Army’s actions will avoid the personal 

conflict of interest, we find no reason to conclude that the agency is required to 

(continued...) 

Page 2 B-400324.3 
Under the Competition in Contracting Act of 1984, our Office may recommend that 

protest costs be reimbursed where we find that an agency's action violated a 

procurement statute or regulation. 31 U.S.C. § 3554(c)(1) (2000). Where an agency 

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

protester recover the reasonable costs of filing and pursuing the protest, where we 

conclude that the agency unduly delayed taking corrective action in the face of a 

clearly meritorious protest. See 4 C.F.R. § 21.8(e) (2008); Georgia Power Co.; 

Savannah Elec. and Power Co.-Costs, B--289211.5, B--289211.6, May 2, 2002, 2002 

CPD § 81 at 5. We have recognized that the mere promise of corrective action, 

without reasonably prompt implementation, has the obvious effect of circumventing 

the goal of the bid protest system for the economic and expeditious resolution of bid 

protests. See Louisiana Clearwater, Inc.-Recon. and Costs, B-283081.4, B-283081.5, 

Apr. 14, 2000, 2000 CPD ¶ 209 at 6; Pemco Aeroplex, Inc.--Recon. and Costs, 

B-275587.5, B-275587.6, Oct. 14, 1997, 97-2 CPD ¶ 102 at 7-8. Thus, where an agency 

fails to implement the promised corrective action, or implements corrective action 

that fails to address a meritorious issue raised in the protest that prompted the 

corrective action, such that the protester is put to the expense of subsequently 

protesting the very same procurement deficiency, the agency’s action has precluded 

the timely, economical resolution of the protest. Louisiana Clearwater, Inc.-Recon. 

and Costs, supra. 

Here, however, we find that the agency promptly instituted its promised corrective 

action, and thus this is not a situation where the agency either failed to implement 

the corrective action, or unduly delayed the corrective action, such that the protester 

was required to file a second protest. In this regard, the Army, as promised, 

reviewed its determinations regarding the SDVOSB set-aside, bundling, and the 

conflict of interest, and subsequently documented this review. While the protester 

disagrees with the Army’s conclusions, this does not demonstrate that the Army 

failed to implement its promised corrective action. Moreover, we find no basis in the 

record here to conclude that Taylor’s protest grounds were clearly meritorious.3 A 

prerequisite to our recommendation that costs be reimbursed is that the protest 

must not only have been meritorious but must also have been clearly meritorious, 

i.e., not a close question. See New England Radiation Therapy Mgmt. Servs., Inc.--

Costs, B-297397.3, Feb. 2, 2006, 2006 CPD ¶ 30 at 4 (reimbursement of protests costs 

not recommended after agency’s corrective action where protest was not clearly 

meritorious). Here, further record develop would be required to determine whether 

the requirements had changed such that a set aside was not required (as maintained 

by the CO), whether the agency had reasonably decided to have “one point of 

 

(...continued) 

further mitigate the conflict of interest by excluding the other firm from the 

competition. 

3

 The agency contends that none of Taylor’s protest grounds are meritorious. 

Page 3 B-400324.3 
Page 4 B-400324.3 

contact” such that there was no improper bundling, and whether the agency had 

properly addressed the allegation of bias. In short, because we find that the agency 

did not unduly delay implementing its promised corrective action and that Taylor’s 

prior protest grounds were not clearly meritorious, we conclude that there is no 

basis for recommending reimbursement of Taylor’s protest costs. 

The request is denied. 

Gary L. Kepplinger 

General Counsel