NextStep Technology, Inc. learned that the Government Accountability Office (“GAO”) enforces all of its rules on reimbursement of protester’s costs. NextStep Tech, Inc., B-421743.2, August 16, 2024.
Here was the protest timeline and request for costs:
• Jan. 19, 2023 GSA issues a solicitation for a task order for programmatic support services for the Army.
• March 12, 2023, Army issues the task order to Gemini
• June 12, 2023 NextStep filed a GAO protest based on the cost evaluation and evaluation of NextStep’s technical proposal.
• August 31, 2023 GAO conducted a conference call with the parties to provide alternative dispute resolution (outcome prediction) and stated GAO would likely sustain the protest
• August 31, 2023, Army notifies the GAO that it intended to take corrective action by terminating the award to Gemini, canceling the RFP and reviewing the agency’s requirements. The Army requested dismissal of NextStep’s protest, but NextStep objected to the basis of the Army’s dismissal request and asked GAO to include a recommendation for the Army to pay NextStep its reasonable costs of filing and pursuing the protest.
• September 5, 2023, GAO dismissed the protest as academic, but declined to issue a recommendation for the Army to pay NextStep its costs of filing and pursuing the protest. The GAO advised if there was a dispute about these costs, then under 4 CFR § 21.8(e)., the protester may file a request for a recommendation on the reimbursement of bid protest costs.
• On Oct. 27, 2023 (more than seven weeks later) NextStep submitted a letter with invoices titled “Request for recommendation of reimbursement of Reasonable costs, and stated that the request was made in accordance with 4 CFR § 21.8(e)
• On April 5, 2024, after arguments about the adequacy of NextStep’s justification of its costs or whether NextStep had followed correct procedures, the Army Contracting Officer denied the request for reimbursement
• On April 15, 2024, NextStep filed a request for a recommendation for the reimbursement of costs with the GAO, attaching the October 27 letter and its invoices that were previously submitted to the Army.
NextStep requested that GAO recommend that the Army reimburse its costs for the protest. The Army responded by saying that the reimbursement request had been filed directly with the Army, not the GAO, and in any event was not filed within 15 days after NextStep learned that the GAO had closed the protest (as required by 4 CFR § 21.8(e)).
The GAO denied NextStep’s request for a payment recommendation, noting that the Army was correct that this request had to be filed not later than 15 days when the protester learned, or should have learned, that the GAO had closed the protest. It was clear that NextStep did not comply with the GAO regulations, had submitted its request to the agency (incorrectly), and was untimely pursuant to GAO’s regulations. (NextStep didn’t file its reimbursement request with the Army until 52 days after the protest was dismissed—and didn’t file directly with GAO until April 15, 2024, over seven months after the dismissal).
Takeaways: (1) Comply with the GAO rules for requesting a recommendation on costs (see citation above); (2) File your request for a cost recommendation directly with the GAO, as required by GAO rules;(3) Be sure to file your request to GAO in a timely manner as explained above.
For other helpful suggestions on government contracting, visit:
Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes.
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