Comptroller General

United States Government Accountability Office 

Washington, DC 20548 

of the United States

 

Decision 

Matter of: Major Contracting Services, Inc. 

File: B-400737.2 

Date: December 17, 2008 

Merrill D. Austin for the protester. 

Capt. Charles D. Halverson, 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 

Corrective action (consisting of terminating the protested award, canceling the 

solicitation, issuing a new solicitation, obtaining proposals, and making a new 

selection decision) taken by an agency in response to a prior protest is reasonable 

where the agency needs to evaluate offerors’ ability to meet contract specifications 

but the solicitation failed to require offerors to submit technical proposals. 

DECISION 

Major Contracting Services, Inc. (MCS) of Colorado Springs, Colorado, protests the 

cancellation of request for proposals (RFP) No. W911SG-08-R-0007, issued by the 

Department of the Army for chemical latrines and wash stations. The Army’s 

decision to cancel the RFP was the result of corrective action taken in response to 

MCS’s earlier protest (B-400737) objecting to the award of a contract to Vantex 

Service Corporation. MCS contends that the Army should award the contract to 

MCS rather than resolicit this requirement and also requests that we find MCS to be 

entitled to its proposal preparation and bid protest costs. 

We deny the protest. 

The RFP was issued as a combined synopsis and solicitation for temporary and 

permanent portable chemical latrines and wash stations at Fort Bliss, Texas and 

stated that award was to be made to the offeror whose proposal was “most 

advantageous to the government, price and other factors considered, including past 

performance,” and that the agency would also evaluate offerors’ “ability to meet 

specifications.” To be considered for award, offerors were required to submit a 

completed copy of the standard “Offeror Representations and Certifications -- 
Commercial Items” clause in Federal Acquisition Regulation (FAR) § 52.212-3 and 

unit prices for all line items including option years, and to be able to meet the 

required delivery schedule. RFP at 3. 

Proposals were received from MCS and Vantex. The Army selected Vantex’s

proposal for award and informed MCS that its proposal did not describe how the 

firm would perform the requirements at Ft. Bliss. MCS protested to our Office, 

complaining that it had submitted all information required by the RFP and that, 

because the RFP did not require offerors to submit technical proposals, the Army 

had unreasonably downgraded MCS’s proposal for failing to explain how the firm 

would perform the work. 

In response to the protest and prior to submitting its agency report regarding the 

propriety of its actions, the Army notified our Office and the parties that it would 

take corrective action by terminating the current award, issuing a new solicitation 

that clarified the requirement, receiving new proposals, and making a new award 

decision. We found that the Army’s corrective action rendered academic MCS’s 

protest of the award to Vantex, and dismissed MCS’s protest.

MCS complains that the Army has no reasonable basis for canceling the RFP and 

resoliciting the requirements because the contracting officer “stated that there was 

no reason to believe that [the] Protester could not meet the requirements of the 

intended Contract” and the protester submitted the lowest priced offer.1

 Comments 

at 1. 

Contracting officials in negotiated procurements have broad discretion to take 

corrective action where the agency determines that such action is necessary to 

ensure fair and impartial competition. Patriot Contract Servs. LLC et al., 

B-278276.11 et al., Sept. 22, 1998, 98-2 CPD ¶ 77 at 4. We will not object to the 

specific proposed corrective action, so long as it is appropriate to remedy the 

concern that caused the agency to take corrective action. Networks Elec. Corp., 

B-290666.3, Sept. 30, 2002, 2002 CPD ¶ 173 at 3. 

Here, the Army agrees with the protester that the RFP did not request or require 

offerors to submit technical proposals. The agency explains, however, “that it needs

each offeror to submit a technical proposal that describes how that offeror intends 

 1

 MCS also complained that resoliciting this requirement would prejudice MCS 

because other offerors “are now fully aware of [its] pricing structure.” The protester, 

however, does not explain why it believes other offerors are aware of its pricing 

structure, other than to assert that “it is unknown exactly who has access or who has

been provided with copies of [its prices].” Protest at 1. In any event, the Army 

explains in its report that the agency disclosed only the awardee’s price to other 

offerors in its award notices. Agency Report at 4 n.2. 

Page 2 B-400737.2 
to meet the requirement” in order “[t]o ensure that the Army’s requirements are 

properly and effectively met.” Agency Report at 4. In addition, the agency explains 

that its proposed corrective action will ensure a full and open competition by 

allowing all interested offerors to submit proposals.

We find no basis to object to the Army’s proposed corrective action. Although the 

RFP informed offerors that the agency would evaluate, among other things, the 

offerors’ ability to meet the contract specifications, the agency’s ability to make such 

an assessment was hindered by the failure of the solicitation to require the 

submission of technical proposals. Under the circumstances, we conclude that the 

agency reasonably determined that it should cancel the RFP and resolicit after 

clarifying its requirements. 

With respect to the protester’s request that we find the firm entitled to

reimbursement of its proposal preparation and protest costs, where an agency takes

corrective action prior to our issuing a decision on the merits, 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. Bid Protest Regulations, 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. Where, as here, however, an agency 

takes corrective action prior to the submission of its report on a protest, we have 

generally not found the agency’s corrective action to be unduly delayed. See Smith 

& Wesson, Inc., B-400479, Nov. 20, 2008, 2008 CPD ¶ 215 at 2 n.1. In any event, our 

Regulations do not provide for our recommendation that an agency reimburse a 

protester for its proposal preparation costs where the agency decides to take 

corrective action prior to our issuing a decision on the merits.2

 4 C.F.R. § 21.8(e); 

Yardney Tech. Prods., Inc.--Costs, B-297648.3, Mar. 28, 2006, 2006 CPD ¶ 65 at 5. We 

deny MCS’s entitlement request. 

The protest is denied. 

Gary L. Kepplinger 

General Counsel 

 2

 Moreover, we generally would not recommend the reimbursement of proposal 

costs in a decision on the merits of a protest, where, as here, the protester would 

have an opportunity to compete for the requirement under a reopened competition. 

Rockwell Elec. Commerce Corp.--Mod. of Recommendation, B-286201.8, Mar. 5, 

2002, 2002 CPD ¶ 47 at 2. 

Page 3 B-400737.2