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The Comptroller General recommended the government reimburse a protester its costs of filing and pursuing a protest because the protest was clearly meritorious and the government did not take prompt corrective action. After the protest was filed, the Government Accountability Office conducted an "outcome prediction" alternative dispute resolution conference in which the cognizant GAO attorney indicated the government improperly excluded the protester's proposal for generator maintenance from the competitive range without considering price. The attorney advised that the protest likely would be sustained on this ground and the decision would likely recommend the government reassess whether the protester's proposal should be included in the competitive range. Subsequently, the government proposed to take corrective action of canceling the solicitation and the award, and resoliciting the requirement. The protest was consequently dismissed as academic. The protester then sought its costs of pursuing the protest.

Reimbursement Recommended

The Comptroller General granted the request, finding the attorney's willingness to inform the parties through outcome prediction ADR that the protest was likely to be sustained was an indication the protest was clearly meritorious for purposes of recommending reimbursement of protest costs under GAO 21.8(e). Further, corrective action is not considered prompt if it is taken after the due date for the agency report responding to the protest, and here, the government did not take corrective action until after it filed its report and the GAO conducted ADR. However, a recommendation for the reimbursement of protest costs may be limited if the successful and unsuccessful protest grounds are clearly severable. In this case, the bulk of the protest had challenged the government's technical evaluation, and this issue was clearly severable from the competitive range issue addressed in the ADR conference. As a result, the recommendation was limited to costs related to the competitive range protest ground. The protester's challenge to the cancellation of the solicitation was denied because it did not rebut the government's "facially reasonable" justification, that the government's technical needs had changed and the solicitation did not reflect those new needs. (KAES Enterprises, LLC --Protest and Costs, 25 CGEN ¶113,052)