The Bid Protest Debrief

After the GAO indicated it would likely sustain Perimeter Security Partners’ protest challenging a task order award for access control point maintenance, the Army took corrective action—but only after filing its agency report and participating in alternative dispute resolution (ADR) with the cognizant GAO attorney.  Perimeter then requested reimbursement of its protest costs, arguing that its grounds were clearly meritorious and that the agency unduly delayed in taking corrective action. The GAO agreed, finding that the agency should have acted earlier based on the protest record, and that all protest grounds were intertwined and not severable. (Perimeter Security Partners, LLC—Costs, B-422666.2, Aug. 8, 2025)

The Decision
The GAO granted the protester’s request for reimbursement of costs, ruling that:

1. Protest Grounds Were Clearly Meritorious: GAO determined that at least two protest grounds—the disparate treatment in past performance evaluation and the flawed best-value tradeoff—were not just viable but likely to result in a sustain. GAO had advised the parties of this in an outcome prediction ADR session, and confirmed that the agency’s evaluation decisions were inconsistent with the record and evaluation criteria.
2. Corrective Action Was Unduly Delayed: GAO emphasized that corrective action is only considered “prompt” if it’s taken before the agency report is due. Here, the Army waited until after ADR and multiple rounds of briefing. That delay unnecessarily increased protest costs, which GAO seeks to discourage.
3. Agency’s Arguments Were Unpersuasive: The Army argued that because GAO did not promise cost reimbursement during ADR, it shouldn’t be required to pay. GAO rejected this, clarifying that cost entitlement flows from undue delay, not from ADR participation. The agency also failed to show that any protest grounds were clearly severable, so GAO awarded full cost reimbursement.

Key Takeaways for Contractors

1. You May Be Entitled to Protest Costs, but Only If the Protest Was Strong: GAO will only recommend cost reimbursement where protest grounds are clearly meritorious, meaning the agency had no defensible legal position and should have seen it early.
2. Delay Can Cost the Government: If the agency waits until after briefing or ADR to take corrective action, even if it avoids a formal sustain, it may still have to pay the protester’s legal and consultant fees.
3. All-or-Nothing Depends on Severability: Protesters can recover all costs if their successful claims are intertwined with the rest of the protest. If claims are clearly separate and weak, GAO may reduce or deny reimbursement for those portions.
4. Participation in ADR Does Not Waive Cost Claims: An agency’s voluntary ADR participation does not shield it from protest cost liability. Protesters should not be discouraged from requesting costs just because ADR was used.