One Protester Had a Clearly Meritorious Argument. Could that Merit Transfer to Another Protester’s Argument?

The protester sought costs following corrective action. The protester said its argument had been meritorious, because another protester had asserted a similar argument, and GAO found that argument meritorious. GAO rejected this reasoning. Merit is not transferrable from protest to protest.

Global Dimension, LLC—Costs, GAO B-421404.4

• Protest– The protester challenged an award. After filing the agency report, the agency took corrective action to reevaluate. The protester requested protest costs.
• Clearly Meritorious – GAO will only award protest costs when the agency unduly delays corrective action in the face of a clearly meritorious protest. Here, GAO found the protester’s argument was not clearly meritorious. The protester challenged the awardee’s technical rating. GAO said the agency had a defensible legal position. The defense may not have been a slam dunk, but it was colorable.
• Transfer of Merit – The protester noted that a different protester had raised a similar argument, and GAO had found that argument meritorious. The decision to recommend costs rests on the posture of each individual protest and is decided on a case-by-case basis. And, in any event, the other protester’s arguments differed from those raised in this protest.

The protester is represented by Richard L. Moorhouse of Greenberg Traurig LLP. The agency is represented by Major Brittney N. Montgomery. GAO attorney Jacob M. Talcott and Jennifer D. Westfall-McGrail participated in the decision.

–Case summary by Craig LaChance, Senior Editor

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