United States Government Accountability Office 

Washington, DC 20548 

Comptroller General

of the United States

 

Decision 

Matter of: Intercontinental Construction Contracting, Inc.--Costs 

File: B-400729.3 

Date: March 4, 2009 

Hal J. Perloff, Esq., Daniel J. Donohue, Esq., and Sarah M. Graves, Esq., Akerman 

Senterfitt Wickwire Gavin, for the protester. 

CPT Robert T. Wu, Department of the Army, for the agency. 

Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST 

Request that the Government Accountability Office recommend reimbursement of 

protest costs is denied where the initial protest grounds were not clearly meritorious 

and the agency did not unduly delay taking corrective action after the protester later 

raised specific challenges based on review of the agency report. 

DECISION 

Intercontinental Construction Contracting, Inc. (ICCI), of Passaic, New Jersey, 

requests that we recommend that it be reimbursed the costs of filing and pursuing its 

protest challenging the agency’s evaluation of proposals submitted in response to 

solicitation No. W912PQ-08-R-0017, issued by the National Guard Bureau (NGB) for 

replacement of the pararescue training facility at the New York Air National Guard 

Base. We dismissed the protest after the agency advised our Office that it would be 

reevaluating proposals. ICCI argues that its protest was clearly meritorious and that 

the agency unduly delayed taking corrective action until after the due date for the 

agency report and the protester had filed comments on the agency report. 

We deny the request. 

The agency issued the solicitation on June 20, 2008; ICCI and Racanelli Construction 

Company, Inc., among others, submitted proposals. The agency made award to 

Racanelli, and ICCI protested that award to this Office on October 10. In its protest, 

ICCI alleged that “[u]pon information and belief, the Bureau’s rating of ICCI was 

unjustifiably low based upon ICCI’s strong record in performing government 

construction work of similar size and scope. Accordingly, the Bureau’s evaluation of 
ICCI’s lower-priced proposal provided the best value to the government.” Protest 

at 5. 

After we denied requests to dismiss the protest by the agency and the intervenor, the 

agency filed its report on November 10.1

 On November 20, the protester submitted 

its comments on the agency report. In its comments, the protester alleged the 

following specific shortcomings in the agency’s evaluation of its past performance: 

The agency’s conclusions regarding ICCI’s past performance are flawed 

and unreasonable in three critical respects. First, the agency 

irrationally and unreasonably excluded positive past performance 

questionnaires for ICCI by assigning no relevancy weighting to two 

pertinent projects and simply ignoring them [in] the evaluation. 

Secondly, the agency irrationally and unreasonably assigned low 

relevancy weightings (semi-relevant and not-relevant) to several of 

ICCI’s past performance projects. Finally, the agency irrationally and 

unreasonably failed to aggregate ICCI’s past performance on 

concurrent projects in making its overall relevancy determinations of 

ICCI’s past performance as provided for in the RFP. 

Comments, Nov. 20, 2008, at 4. 

Our Office convened a teleconference on December 2 to discuss the status of the 

protest. During that teleconference, the agency stated, with respect to the first 

allegation quoted above, that it had the past performance questionnaires at the time 

that it conducted the evaluation, but that it excluded them from consideration 

because the protester had not included the questionnaires in its proposal. We 

advised the agency that the questionnaires were past performance information too 

close at hand to ignore, see GTS Duratek, Inc., B-280511.2, B-280511.3, Oct. 19, 1998, 

98-2 CPD ¶ 130 at 15, and that we would be likely to sustain the protest on this 

ground alone. Soon after the teleconference, on December 8, the agency advised 

that it had decided to take corrective action. We then dismissed the protest as 

academic. 

The protester argues that the agency report confirms ICCI’s original protest 

allegation, namely, “that the Agency’s evaluation of ICCI’s past performance was 

irrational based on the Agency’s failure to consider ICCI’s strong record in 

performing government construction work of similar size and scope.” Request for 

Costs at 3. Thus, the protester asserts, the agency unduly delayed taking corrective 

 

1

 On November 12, the protester filed a supplemental protest challenging the past 

performance portion of the agency’s evaluation of the awardee’s proposal. We 

dismissed that protest on November 13 for failure to state a valid basis for 

challenging the agency’s evaluation.

Page 2 B-400729.3 
action when, in response to the protest, it produced an agency report instead of 

taking corrective action. We disagree. 

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. A protest is clearly meritorious where a reasonable agency inquiry 

into the protest allegations would have shown facts disclosing the absence of a 

defensible legal position. AVIATE LLC, B-275058.6, B-275058.7, Apr. 14, 1997, 97-1 

CPD ¶ 162 at 16. As a general rule, so long as an agency takes corrective action by 

the due date of its protest report, we regard the action as prompt, and will not 

consider a request to recommend reimbursement of protest costs. CDIC, Inc.--Costs, 

B--277526.2, Aug. 18, 1997, 97-2 CPD ¶ 52. If it is in the protester’s comments on the 

agency report that the agency is presented for the first time with information that 

clearly calls into questions the agency’s challenged determination, and the agency 

then promptly takes corrective measures, we will conclude that the agency did not 

unduly delay in taking corrective action. LSL Indus., Inc.--Costs, B-291777.2, Aug. 18, 

2003, 2004 CPD ¶ 99 at 4. 

Here, we cannot say that the protester’s general allegation that the agency failed to 

consider the protester’s “strong record” in performing government construction 

work was clearly meritorious. ICCI has not shown that its initial protest on this 

ground was clearly meritorious in the sense that it presented a prima facie case that, 

without more, demonstrated a valid basis for our Office to sustain its protest. Career 

Quest, a Div. of Syllan Careers, Inc.--Costs, B-293435.5, Apr. 13, 2005, 2005 CPD ¶ 79 

at 3. Rather, in order for us to reach a decision about ICCI’s initial protest 

allegations, we had to further develop the record, including a complete agency report 

and the protester’s comments on the report. Because ICCI’s initial protest did not 

present what could reasonably be described as clearly meritorious issues, it follows 

that there is no basis for recommending reimbursement of ICCI’s protest costs. Id.

Moreover, the agency did not unduly delay taking corrective action in response to 

the protester’s comments on the agency report. The promptness of the agency’s 

corrective action is not measured from the protester’s initial protest where the initial 

protest did not identify the specific areas where the agency improperly evaluated the 

protester’s proposal. See Henkels & McCoy, Inc., B-250875 et al., Feb. 24, 1993, 93-1 

CPD ¶ 174 at 4. As quoted above, the initial protest broadly challenged the 

reasonableness of the agency’s evaluation of the protester’s past performance 

without specifically identifying the agency’s failure to consider certain past 

performance questionnaires and certain relevancy determinations. It was not until it 

reviewed the agency report that ICCI protested, with specificity, the propriety of its 

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Page 4 B-400729.3 

past performance evaluation. We recognize that ICCI was not able to raise these 

specific issues before it received the agency report and reviewed the agency’s 

evaluation. The fact remains, however, that once ICCI further articulated its 

challenge, the agency promptly determined that the evaluation was flawed and took 

corrective action. As noted above, the protester submitted its comments on the 

agency report on November 20, and on December 8, 18 days later, the agency took 

corrective action. See J.A. Jones Mgmt. Servs., Inc.--Costs, B-284909.4, July 31, 2000, 

2000 CPD ¶ 123 at 3-4 (noting that, when the agency responded within 17 days to the 

new information offered by the protester, it had not unduly delayed in taking 

corrective action). 

The request is denied. 

Gary L. Kepplinger 

General Counsel