United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: The Ross Group Construction Corporation--Request for Modification 

of Remedy

File: B-405180.3

Date: August 7, 2012

Henry E. Steck, Esq., Harrison Steck, P.C., for the protester.

Tracey Jefferies, Esq., Department of the Army, for the agency.

Andrew J. Stephens, Esq., and James A. Spangenberg, Esq., Office of the General 

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

DIGEST

Request that an agency reimburse protester for proposal preparation costs is 

denied where the agency acted within its discretion to require re-certification of 

small business size status when requesting task order proposals under a small 

business multiple award task order contract. 

DECISION

The Ross Group Construction Corporation, of Tulsa, Oklahoma, requests that our 

Office modify our earlier remedy and recommend that the Department of the Army, 

U.S. Army Corps of Engineers reimburse The Ross Group for proposal preparation 

costs as a result of our decision in Ross Group Constr. Corp., B-405180.2, Nov. 28, 

2011, 2011 CPD ¶ 270. In that decision, we sustained The Ross Group’s protest 

against the Corp’s award of a task order to Blackhawk Ventures, LLC, under 

request for proposals (RFP) W912G-11-R-0004, for the construction of a battle 

command training center at Fort Sam Houston, Texas.1

We deny the request. 

On November 28, 2011, we sustained the protest of The Ross Group on the 

grounds that the agency had no reasonable basis for its selection of the awardee’s 

 

1

The solicitation was issued to holders of a small business multiple award task 

order contract (MATOC), including The Ross Group and Blackhawk. 
Page 2 B-405180.3 

higher-priced proposal where the decision was based on the awardee’s evaluated 

superiority for past performance, even though the awardee’s proposal failed to 

comply with the solicitation’s stated requirements under the past performance 

factor. We recommended that agency consider its needs and, if appropriate, 

amend the solicitation and re-open the competition. We also recommended that the 

protester be reimbursed the reasonable costs of filing and pursuing its protest.

In response to our recommendation, on December 20, 2011, the Corps amended 

the solicitation revising the technical proposal requirements in areas related to past 

performance. The Ross Group acknowledges that this action comports with our 

recommendation to amend the solicitation. On December 23, 2011, the agency 

further amended the solicitation to require offerors to re-certify their small business 

size status.

The Ross Group requests that we now recommend the agency reimburse it for 

proposal preparation costs. The Ross Group argues that by requesting recertification of offerors’ small business size status, the agency failed to fully 

implement our recommendation that the procurement be re-opened to permit all 

offerors to compete. However, The Ross Group admits that, although it was a small 

business concern at the time of the award of the MATOC contract, it cannot now recertify this status, and acknowledges that an agency has the discretion to request 

re-certification of small business size status for individual task orders issued under 

an ID/IQ contract. See Enterprise Info. Sys., Inc., B-403028, Sept. 10, 2010, 

2010 CPD ¶ 213 at 3.

Where our Office sustains a protest, we may recommend that the protestor be 

reimbursed its proposal preparation costs. 4 C.F.R. § 21.8(d)(2) (2012). We have 

declined to recommend reimbursement of proposal preparation costs in instances 

when agencies implement our recommendations, but also took other reasonable 

actions which resulted in the protester being unable to compete in a new 

competition. Lockheed Martin Sys. Integration-Owego; Sikorsky Aircraft Co.--

Modification of Recommendation, B-299145.7, B-299145.8, Dec. 15, 2009, 

2009 CPD ¶ 259 at 2; QuanTech--Costs, Inc., B-278380.3, June 17, 1998, 

98-1 CPD ¶ 165 at 3. Here, we decline to recommend reimbursement of The Ross 

Group’s proposal preparation costs because the agency acted reasonably within its 

discretion in requiring re-certification of small business size status from the offerors 

when it requested revised task order proposals under a MATOC that was restricted 

to small business concerns. 

The request is denied.

Lynn H. Gibson

General Counsel