Comptroller General

United States Government Accountability Office

Washington, DC 20548 

of the United States

Decision 

Matter of: Del-Jen Education & Training Group 

File: B-401787.3 

Date: May 4, 2010 

Richard O’Keeffe, Esq., Brian G. Walsh, Esq., and William A. Roberts III, Esq., Wiley 

Rein, for the protester. 

Jonathan Shaffer, Esq., and Mary Pat Buckenmeyer, Esq., Smith Pachter, for 

Res-Care, Inc., the intervenor. 

Dennis Adelson, Esq., Department of Labor, for the agency. 

David A. Ashen, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, 

participated in the preparation of the decision. 

DIGEST 

Protest that agency improperly permitted original awardee to continue performance 

during agency’s corrective action following protest of award is denied; where there 

was a need for continued performance under protested contract, agency properly 

permitted awardee to continue performance (after any applicable stay was lifted) 

pending implementation of corrective action, and any competitive advantage gained 

as a result of continued performance is not an improper advantage for which agency 

is required to compensate. 

DECISION 

Del-Jen Education & Training Group, of Phoenix, Arizona, protests the 

determination by the Department of Labor (DOL) not to exclude Res-Care, Inc., of 

Louisville, Kentucky, from the competition under solicitation No. DOLJ09UA00025, 

for establishment and operation of the Pinellas Job Corps Center in St. Petersburg, 

Florida. Del-Jen essentially asserts that Res-Care had an unfair competitive 

advantage by virtue of its being permitted to continue performing the contract 

initially awarded it under the solicitation, while the agency prepared to implement 

corrective action following a protest challenging the award of that contract. It 

asserts that Res-Care should be excluded from the reopened competition. 

We deny the protest. 
The solicitation, issued August 1, 2008, provided for award of a contract, for a 2-year 

base period, with 3 option years, for establishment and operation of the new Pinellas 

Job Corps Center. Six offerors, including Del-Jen and Res-Care, submitted 

proposals. On August 19, 2009, after learning that award had been made to Res-Care, 

Del-Jen filed a protest with our Office asserting that the evaluation of proposals was 

unreasonable. DOL subsequently proposed corrective action, which would include 

providing Del-Jen and all other competitive range offerors with discussion questions, 

requesting final proposal revisions, and making a new source selection. We 

dismissed Del-Jen’s protest as academic (B-401787, B-401787.2, Sept. 8, 2009). 

Although DOL initially suspended performance under Res-Care’s contract after 

Del-Jen’ s August 19 protest, after dismissal of the protest, the agency authorized 

Res-Care to resume performance (on September 9) while DOL implemented the 

corrective action. According to DOL, it was necessary to have a contractor in place 

to work with the construction companies to ensure that construction of the center 

would continue in accordance with the specifications and schedule, to order and 

receive furniture and equipment, and to prepare the center to receive students. 

Contracting Officer’s Statement, Mar. 1, 2010; Contracting Officer’s Statement, 

Jan. 20, 2010. On December 21, upon learning of Res-Care’s resumption of 

performance, Del-Jen filed an agency-level protest challenging Res-Care’s continued 

performance and requesting the disqualification of Res-Care from the reopened 

competition. On December 28, DOL notified Res-Care that its contract would be 

terminated for convenience effective January 17, 2010, and awarded an interim 

contract to a firm that had not submitted a proposal under the solicitation; however, 

DOL declined to disqualify Res-Care from the reopened competition and denied its 

protest. Del-Jen then filed this protest with our Office. 

Del-Jen asserts that permitting Res-Care to continue performance from 

September 2009 to January 2010 during the agency’s corrective action amounted to 

the award of an improper sole-source contract, which resulted in Res-Care’s 

obtaining an “unfair and immitigable competitive advantage” through the 

opportunity to become “‘embedded’ with key Job Corps personnel and local 

authorities.” Protest at 13-14. Del-Jen further asserts that DOL improperly failed to 

undertake measures to avoid the creation of an organizational conflict of interest 

through unequal access to information. 

These arguments are without merit. Where, under circumstances such as those here, 

there is a need for continued performance under a protested contract, an agency 

generally may permit the original awardee to continue performance (after the lifting 

of any applicable stay) pending the implementation of corrective action undertaken 

in response to the protest. See Cox & Assocs. CPAs, B-287272.2, B-287272.3, June 7, 

2001, 2001 CPD ¶ 102 at 4. It follows that, in our view, a competitive advantage 

accruing to the original awardee as a result of continued performance does not 

Page 2 B-401787.3 
Page 3 B-401787.3 

constitute an unfair advantage for which the agency is required to compensate. See

generally University Research Corp., B-228895, Dec. 29, 1987, 87-2 CPD ¶ 636 at 5 

(government not required to compensate for competitive advantage derived from 

firm’s status as incumbent contractor, unless advantage resulted from improper 

preferential treatment or unfair action). 

As for Del-Jen’s concern that Res-Care may have benefited from unequal access to 

inside information, the contracting officer has stated in a sworn declaration that 

Res-Care was not furnished any sensitive, procurement-related information; it has 

had access only to information that is available to any Job Corps center contractor 

by virtue of operating a Job Corps center. Contracting Officer’s Statement, Jan. 20, 

2010; Agency Supplemental Report, Mar. 18, 2010, at 4-5.1

 Del-Jen has furnished no 

basis for questioning the agency’s representation in this regard.2

The protest is denied. 

Lynn H. Gibson 

Acting General Counsel 

 

1

 Indeed, Del-Jen itself operates Job Corps centers. Agency Comments, Mar. 18, 

2010, at 4. 

2

 Del-Jen also questions whether the agency will implement the on-going corrective 

action in a reasonable manner, including whether it will conduct adequate 

discussions and perform a reasonable evaluation. This assertion essentially 

anticipates improper action in connection with the new source selection. As such, it 

is speculative and premature, and we will not consider it. See Sun Chem. Corp., 

B-288466 et al., Oct. 17, 2001, 2001 CPD ¶ 185 at 13.