[Request for Reconsideration of Decision Denying Requests for Reconsideration and Sustaining Bid Preparation Cost Claims]

B-208662.3: Feb 26, 1985

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The Department of Commerce requested reconsideration of a decision which denied two protesters' requests for reconsideration but sustained their claims for proposal preparation costs, contending that the protesters should not have been found entitled to reimbursement for these costs. GAO had sustained the protesters' claims because it found that Commerce had failed to require the awardee to comply with a mandatory certification provision before making the award. Since the agency was aware of this provision, GAO concluded that it had acted unreasonably in awarding the contract. The protesters had a substantial chance of receiving the award; therefore, GAO found that they were entitled to recover proposal preparation costs. GAO found that its conclusion that the agency failed to determine that the awardee had met the certification was correct. In addition, to the extent that the agency attempted to establish that it properly enforced the certification, the agency's request for reconsideration was untimely and not for consideration. Furthermore, GAO found that the protesters' claims were not contrary to controlling precedent since it could find no reasonable basis for the agency's actions. Accordingly, the prior decision was affirmed.