What is difference between "meritorious" and "clearly meritorious"? In the case of a company protesting a contract award by the Navy, it meant the difference between getting reimbursed for its cost of protesting and not getting reimbursed.
In 2016, the Navy issued an RFP for contractor support services. Award was to be based on the offer representing best value to the Government following certain evaluation factors. Seven firms submitted proposals including Herren Associates, Inc. Ultimately the contract was awarded to another firm.
Herren appealed to the GAO challenging the Navy's evaluation on several aspects of its proposal. There was some back and forth between the GAO, the Navy, and Herren and ultimately, the Navy advised the GAO that it needed to take corrective action to address the supplemental protest. Specifically, the Navy decided to reevaluate Herren's proposal and make a new best-value tradeoff decision.
Herren then filed a request for the reimbursement of protest costs noting that its protest grounds were clearly meritorious. Herren further maintained that reimbursement of costs is warranted because the Navy unduly delayed taking its corrective action.
When a procuring agency takes corrective action in response to a protest, the GAO may recommend reimbursement of protest costs where, based on the circumstances of the case, it determines that the agency unduly delayed taking corrective action in the face of a clearly meritorious protest, thereby causing the protester to expend unnecessary time and resources to make further use of the protest process in order to obtain relief. As a prerequisite to recommending the reimbursement of costs where a protest has been settled by corrective action, the protest must not only have been meritorious, but it also must have been clearly meritorious. What's the difference? A protest is "clearly meritorious" where a reasonable agency inquiry into the protester's allegations would reveal facts showing the absence of a defensible legal position.
In this case, the GAO did not find reimbursement of protests appropriate. It disagreed with Herren that the company had raised clearly meritorious allegations . While Herren raised come compelling concerns, Herren's arguments necessitated a substantive response from the Navy for the GAO to fully assess the merits of the protest grounds. In GAO's view, the Navy was not without a defensible legal position. Because the allegations raised, and the Navy's responses thereto, presented a close question that warranted further research and analysis to determine the merits of the issues presented, the reimbursement of costs was not warranted.
The full GAO decision can be downloaded here.