Remember those tee shirts? The ones that used subversive humor about going someplace cool and only getting a “lousy tee shirt” to remember the trip. It seemed like every tourist trap in America had its own version.
Turns out GAO’s got one, too. Albeit it’s less a tee shirt, and more a bid protest victory that provided little tangible value to the contractor.
Dolphin Park TT, LLC, B-419899 (Comp. Gen. Aug. 11, 2021), involved a GSA procurement for leased office space in the Miami area. The solicitation anticipated a 15-year maximum term. The government would have termination rights after the first 10 years.
GSA received lease proposals from Dolphin Park and Imperium Property Partners. GSA awarded the lease to Imperium on May 26, 2021. Dolphin Park was notified of the award five days later.
Dolphin Park subsequently protested the award to Imperium. Shortly after its protest was filed, GSA indicated that it planned to take corrective action.
Typically, corrective action results in the agency reevaluating proposals. To the extent the evaluation identifies a new awardee, the government will terminate the current contract and make a new award.
Should a contract termination be necessary, the government will usually invoke a termination for convenience clause. Fixed price contracts will generally include a termination for convenience clause like FAR 52.249-2, which states “[t]he Government may terminate performance of work under this contract in whole or, from time to time, in part if the Contracting Officer determines that a termination is in the Government’s interest.” These clauses allow the government to terminate a contract at any time for almost any reason.
GSA’s lease with Imperium Property Partners, however, did not incorporate a termination for convenience clause. Instead, the government would only have termination rights after the first 10 years of the lease.
This presented a problem. GSA could not take meaningful corrective action because it had no contractual way to terminate the Imperium contract. Thus, even if a reevaluation identified a new awardee, GSA could not legally terminate Imperium’s contract.
In lieu of reevaluation, GSA offered to reimburse Dolphin Park for its proposal preparation costs. According to GSA, this was the only remedy available, given the circumstances.
GAO agreed. According to GAO, “in the absence of a termination for the convenience of the government clause, the only remedy we will recommend is reimbursement of a protester’s proposal preparation costs.” Thus, GAO approved of the proposal preparation cost reimbursement.
Adding insult to injury, GAO also dismissed Dolphin Park’s protest. As GAO explained, “we will not consider protests that have no practical consequences, and . . . our Office will not generally render what would be, in effect, an advisory opinion.” Since GSA was powerless to terminate the lease with Imperium, there was little value in GAO deciding the protest.
Dolphin Park demonstrates a unique circumstance where justice was illusive. The timing of the contract award and the terms of the contract foreclosed any possibility of meaningful corrective action. Thus, Dolphin Park’s protest was doomed to futility from the start.
It is disappointing GAO did not concurrently recommend reimbursement of Dolphin Park’s legal fees. Generally, GAO will not recommend reimbursement of legal fees where an agency takes prompt corrective action. While GSA’s corrective action was prompt, it was corrective in name only. As GSA readily admitted, there was no way for GSA to correct any evaluation errors after the contract award to Imperium. Thus, a recommendation on Dolphin Park’s legal fees seems like it would have been fair, even if it would be atypical.
In short, Dolphin Park went to GAO and all it got was this lousy decision. Perhaps a tee shirt would have been better.