United States Government Accountability Office 

Washington, DC 20548 

Comptroller General

of the United States

 

Decision 

Matter of: Triple Canopy, Inc.--Costs 

File: B-310566.9; B-400437.4 

Date: March 25, 2009 

Sean P. Bamford, Esq., Kirkpatrick & Lockhart Preston Gates Ellis LLP, for the 

protester. 

Maj. William J. Nelson, Department of the Army, for the agency. 

Glenn G. Wolcott, Esq., and Ralph O. White, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST 

 

Where agency took corrective action following submission of an agency report 

responding to the protests, request that Government Accountability Office 

recommend reimbursement of protest costs is denied where protest grounds, though 

potentially meritorious, were not clearly meritorious--that is, the protest allegations 

presented close questions regarding their merit. 

DECISION 

Triple Canopy, Inc. of Herndon, Virginia, requests that we recommend that it be 

reimbursed the costs of filing and pursuing two protests that challenged the 

Department of the Army’s issuance of task orders to Sabre International Security for 

performance of security services at forward operating base (FOB) Prosperity and 

FOB Q-West in Iraq. 

We deny the request. 

In July 2008, the agency issued task order requests (TOR) to provide security 

services at FOB Prosperity and FOB Q-West, respectively.1

 Each TOR contained a 

manning table that listed various types of posts, various labor categories and 

 

1

 The TORs were issued pursuant to a multiple award indefinite-delivery/indefinitequantity contract known as the Theater-Wide Internal Security Services (TWISS) 

contract. Both Triple Canopy and Sabre hold TWISS contracts to provide security 

services at U.S. military installations throughout Iraq.
required manning levels, referred offerors to the labor categories/CLINs (contract 

line item numbers) that were contained in their TWISS contracts, and directed 

offerors to “furnish completed pricing for all CLINS based on attached CLIN 

structure.” Q-West TOR at 13; Prosperity TOR at 2. The TORs also provided that 

offerors could be required to provide additional personnel, beyond the levels in the 

manning tables, up to specified maximums. Finally, each TOR provided that award 

would be made on the basis of two factors: past performance and price. 

Triple Canopy and Sabre each submitted proposals responding to the TORs prior to 

the applicable deadlines; thereafter, their proposals were evaluated. With regard to 

past performance, the contracting officer concluded that Triple Canopy and Sabre 

were essentially equal; accordingly, price became the determinative factor for source 

selection. Sabre’s proposed prices were lower than those of Triple Canopy under 

both TORs; accordingly, task orders to provide security services at FOB Prosperity 

and FOB Q-West were issued to Sabre. 

In August 2008, Triple Canopy filed its initial protests challenging the agency’s two 

task orders. In its initial protests, Triple Canopy maintained that Sabre was not 

eligible to perform the task order requirements because it did not hold a 

U.S. facilities security clearance, and that the agency erred in evaluating Sabre’s and 

Triple Canopy’s past performance. Following the agency’s response to the initial 

protests, Triple Canopy filed supplemental protests, asserting that Sabre’s proposals 

failed to comply with the TORs’ requirements regarding personnel to fill certain 

labor categories. 

On October 30 and November 13, we issued decisions rejecting all of the complaints 

contained in Triple Canopy’s initial protests. In those decisions, we referred to 

Triple Canopy’s supplemental protests, stating that we intended to separately 

address the issues raised therein. 

On November 19, the agency filed its report responding to the supplemental protests. 

In responding to the protests, the agency acknowledged that there was ambiguity in 

the solicitation regarding the labor categories that offerors were required to fill. The 

agency further stated that, upon review, it was not entirely clear that either offeror 

had committed to provide personnel, beyond the levels specified in the manning 

tables, at the prices contained in their proposals. 

In connection with Triple Canopy’s protests, this Office requested that counsel for 

the parties participate in a conference at GAO to discuss the various issues raised, 

stating that the conference was “to clarify certain matters regarding the 

manning/pricing issues,” E-mail from GAO to Parties’ Counsel, Oct. 20, 2008; the 

GAO attorney handling this matter subsequently conducted a second conference via 

telephone. During each conference, the GAO attorney sought clarification regarding 

the parties’ respective views and representations, and expressed some concern as to 

whether Sabre’s proposal, in fact, complied with the solicitation requirements. 

Page 2 B-310566.9; B-400437.4 
Nonetheless, the GAO attorney declined to engage in “outcome prediction” 

alternative dispute resolution (ADR) regarding the supplemental protest issues.2 

By letter dated December 3, 2008, the agency advised this Office that it intended to 

take corrective action, stating that it would reopen the solicitation and clarify certain 

matters, including clarification of matters regarding the required labor categories. 

The agency also advised that it would obtain a clear commitment from the offerors 

to provide personnel beyond the manning table levels at the prices reflected in their 

proposals. Based on the agency’s action, we dismissed the protests. 

Following the agency’s corrective action, Triple Canopy submitted these requests for 

our recommendation that the agency reimburse Triple Canopy’s costs of filing and 

pursuing the supplemental protests. Triple Canopy asserts that the agency unduly 

delayed taking corrective action and that its supplemental protests were clearly 

meritorious. We disagree. 

Under the Competition in Contracting Act of 1984 (CICA), our Office is authorized to 

recommend reimbursement of protest costs only where we find that an agency’s 

actions violated a procurement statute or regulation. 31 U.S.C. § 3554(c)(1) (2000). 

Our Bid Protest Regulations further provide that where the contracting agency 

decides to take corrective action in response to a protest, we may recommend 

reimbursement of protest costs, including reasonable attorneys’ fees. 4 C.F.R. 

§ 21.8(e). Our Regulations do not contemplate a recommendation for 

reimbursement of protest costs in every case in which an agency takes corrective 

action, but rather only where an agency unduly delays taking corrective action in the 

face of a clearly meritorious protest. Information Ventures, Inc.--Costs, 

B-294580.2 et al., Dec. 6, 2004, 2004 CPD ¶ 244 at 2. Thus, as a prerequisite to our 

recommending the reimbursement of costs where a protest has been settled by 

corrective action, not only must the protest have been meritorious, but it also must 

have been clearly meritorious, that is, not a close question. PADCO, Inc.--Costs, 

B-289096.3, May 3, 2002, 2002 CPD ¶ 135 at 3. A protest is clearly meritorious where 

a reasonable agency inquiry into the protester’s allegations would reveal facts 

showing the absence of a defensible legal position. Yardney Technical Prods., Inc., 

B-297648.3, Mar. 28, 2006, 2006 CPD ¶ 65 at 4. The mere fact that an agency decides 

to take corrective action does not necessarily establish the absence of a defensible 

legal position, nor that a statute or regulation has clearly been violated. Id. 

 

2

 Pursuant to GAO’s Bid Protest Regulations, and our established practice, in 

“outcome prediction” ADR, the GAO attorney handling the case convenes all of the 

participating parties and advises them of what he or she believes the likely outcome 

will be, and the reasons for that belief. See 4 C.F.R. § 21.10 (e), (f) (2008); Pond Sec.

Group Italia JV--Costs, B-400149.2, Mar. 19, 2009, 2009 CPD ¶ ___ at n.1. 

Page 3 B-310566.9; B-400437.4 
Page 4 B-310566.9; B-400437.4 

Here, based on the record presented, along with the discussions conducted and 

clarifications provided during the two GAO conferences, we cannot conclude that 

the supplemental protests were clearly meritorious. Among other things, we agree 

that the solicitation was ambiguous regarding the personnel requirements to which 

offerors were required to commit. Further, in responding to the supplemental 

protests, the agency maintained, with some basis, that, even accepting the protester’s 

interpretation of the solicitations’ requirements, Sabre’s proposals reflected an intent 

to comply with those requirements and that, even increasing Sabre’s prices to reflect 

such intent, Sabre’s proposed prices were still lower than those proposed by Triple 

Canopy; thus, the agency argued that there was no prejudice to Triple Canopy. 

In determining whether to recommend cost reimbursement, we need not definitively 

resolve whether the protests were meritorious; rather, we must determine whether 

they were clearly meritorious--that is, that they did not present close questions for 

which there was no defensible legal position. Based on the record here, we reject 

Triple Canopy’s assertion that its protests were clearly meritorious; rather, we 

acknowledge that, even resolving doubts in Triple Canopy’s favor, the issues 

presented were, indeed, close questions. 

The request that we recommend reimbursement of costs is denied. 

Gary L. Kepplinger 

General Counsel