B-229917.11, Dec 8, 1988, 68 Comp.Gen. 142

B-229917.11: Dec 8, 1988

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Procurement - Bid Protests - GAO procedures - Preparation costs Request for recovery of proposal preparation costs by unsuccessful offeror based on decision sustaining protest brought by another offeror under same solicitation is denied where firm requesting costs did not file protest. Since recovery of costs under General Accounting Office Bid Protest Regulations is limited to actual protesters whose protests are sustained. Despite the contracting officer's finding that the proposals submitted by Kaufman Lasman and Latham were technically equal. We concluded that it was not appropriate to recommend termination of Latham's contract. We found that Kaufman Lasman was entitled to recover its proposal preparation costs and the costs of filing and pursuing the protest.

B-229917.11, Dec 8, 1988, 68 Comp.Gen. 142

Procurement - Bid Protests - GAO procedures - Preparation costs Request for recovery of proposal preparation costs by unsuccessful offeror based on decision sustaining protest brought by another offeror under same solicitation is denied where firm requesting costs did not file protest, since recovery of costs under General Accounting Office Bid Protest Regulations is limited to actual protesters whose protests are sustained.

Federal Auction Service Corporation-- Request for Costs:

Federal Auction Service Corporation requests recovery of its proposal preparation costs in connection with request for proposals (RFP) No. 26/101/2, issued by the Veterans Administration (VA) for auctioneering services in connection with sales of single family properties owned by VA. We deny the request for costs.

The procurement by VA has been the subject of numerous protests to our Office. We recently sustained a protest filed by Kaufman Lasman Associates, Inc., an unsuccessful offeror, concerning award of a contract under the RFP to Larry Latham Auctioneers, Inc. Kaufman Lasman Associates, Inc., B-229917.9, 68 Comp.Gen. ***, Oct. 21, 1988, 88-2 CPD Para. 381. held that VA improperly made award to Latham based on price-related factors not set out in the RFP, despite the contracting officer's finding that the proposals submitted by Kaufman Lasman and Latham were technically equal. Given that the base period under Latham's contract expires in December 1988, we concluded that it was not appropriate to recommend termination of Latham's contract. Instead, we recommended that VA refrain from exercising any of the options under the contract and instead conduct a new procurement for its future needs. In addition, we found that Kaufman Lasman was entitled to recover its proposal preparation costs and the costs of filing and pursuing the protest, including attorneys' fees.

Federal Auction Service now contends that, in view of our holding in the Kaufman Lasman case, it is entitled to recover its proposal preparation costs since it, like Kaufman Lasman, submitted an offer under the RFP. find this argument to be without merit.

With regard to the award of costs, our Bid Protest Regulations, 4 C.F.R. Sec. 21.6(d) (1988), provide as follows:

"If the General Accounting Office determines that a solicitation, proposed award, or award does not comply with statute or regulation it may declare the protester to be entitled to reasonable costs of:

(1) Filing and pursuing the protest, including attorneys' fees; and

(2) Bid and proposal preparation."

Here, Federal Auction Service chose not to file a protest raising the issues on which we ultimately sustained the protest by Kaufman Lasman. /1/ Instead, it now attempts to reap the benefit of our decision sustaining Kaufman Lasman's protest without having assumed the burden of filing a protest itself. There clearly is no basis in our regulations for awarding costs to Federal Auction Service under these circumstances.

The request for costs is denied.

/1/ Federal Auction Service did file one of the earlier protests concerning this procurement. See Federal Auction Service Corp., et al., B-229917.4, et al., June 10, 1988, 88-1 CPD Para. 553, aff'd on reconsideration, B-229917.9, June 22, 1988, 88-1 CPD Para. 597. In its protest, which was filed before the award decision had been made, Federal Auction Service contended that Kaufman Lasman had been given an unfair competitive advantage due to certain information that had been released by the contracting agency. That protest was denied, and, in any event, it clearly had no relation to the issues subsequently raised by Kaufman Lasman.