determine that the agency unduly delayed taking corrective action in the face of a
clearly meritorious protest. East Coast Nuclear Pharmacy-Costs, B-412053.5, Aug. 31,
2016, 2016 CPD ¶ 249 at 5. This principle is intended to prevent inordinate delay in
investigating the merits of a protest and taking corrective action once an error is evident,
so that a protester will not incur unnecessary effort and expense in pursuing its
remedies before our Office. Id. A protest is clearly meritorious when a reasonable
agency inquiry into the protest allegations would show facts disclosing the absence of a
defensible legal position. Octo Consulting Grp., Inc.-Costs, B-414801.4, Dec. 14, 2017,
2018 CPD ¶ 52 at 3. While we consider corrective action to be prompt if it is taken
before the due date for the agency report responding to the protest, we generally do not
consider it to be prompt where it is taken after that date. CDIC, Inc.-Costs, B-277526.2,
Aug. 18, 1997, 97-2 CPD ¶ 52 at 2. Where a new protest allegation is raised after the
filing of the agency report, corrective action is prompt if taken prior to the deadline set
by our Office for the agency’s response to the new protest grounds. See Alliant SB
CTA, LLC-Costs, B-411842.5, Nov. 4, 2016, 2016 CPD ¶ 323 at 2-3.
As noted above, we find RAI’s supplemental protest challenges to the agency’s price
realism analysis and evaluation of RAI’s key personnel to be clearly meritorious
because a reasonable agency inquiry into the protest allegations would have disclosed
the absence of a defensible legal position.
With regard to the first allegation, the protester challenged the adequacy of the agency’s
price realism analysis, arguing that the record failed to support the agency’s conclusion
that RAI’s discounted labor rates presented an unacceptable performance risk. Supp.
Protest at 6-7. The agency argued that, because RAI’s proposed labor rates were lower
than the other vendors’ rates, the contracting officer reasonably “considered RAI’s
rate(s) to present a higher risk than the awardee’s rate(s).” Supp. AR at 5.
Where, as here, a solicitation provides for establishment of a BPA contemplating
fixed-price or fixed-rate call orders to be issued against a vendor’s FSS contract, and
identifies the number of hours involved, the “realism” of a vendor’s proposed pricing is
not ordinarily considered because the fixed-price or fixed-rate contracting vehicle places
the risk and responsibility for contract costs and resulting profit or loss on the contractor.
See MindPoint Grp., LLC, B-418875.2, B-418875.4, Oct. 8, 2020, 2020 CPD ¶ 309 at 9;
Systems, Studies, and Simulation, Inc., B-295579, Mar. 28, 2005, 2005 CPD ¶ 78 at 6.
An agency may, however, as here, provide for a price realism analysis for the limited
purpose of assessing whether a vendor’s low price reflects on its understanding of the
contract requirements or the risk inherent in its approach. Grove Resource Solutions,
Inc., B-296228, B-296228.2, July 1, 2005, 2005 CPD ¶ 133 at 4-5. We will review an
agency’s price realism analysis to determine whether it was reasonable and consistent
with the terms of the solicitation. SKE Italy Srl, B-414884.3, Jan. 24, 2018, 2018 CPD
¶ 37 at 6.