Matter of: Communications-Applied Technology Company, Inc.--Request for Entitlement File: B-233561.5 Date: January 21, 1994

B-233561.5: Jan 21, 1994

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Protester is entitled to the costs of filing and pursuing its protests that the awardees' proposal was technically unacceptable and had been unreasonably evaluated. The solicitation was issued under Bechtel's contract No. We find that CAT is entitled to certain costs of filing and pursuing its protests. These protests were dismissed as academic on September 10. The agency again announced that it was taking corrective action. CAT amended its request for a declaration of entitlement to costs to cover its additional protest costs.[2] All of CAT's protests essentially questioned the determination that PRC's proposal was technically acceptable. CAT urged from the outset that proposals were misevaluated because the Bechtel evaluators were not properly qualified and did not understand the sophisticated technology involved.

Matter of: Communications-Applied Technology Company, Inc.--Request for Entitlement File: B-233561.5 Date: January 21, 1994

Protester is entitled to the costs of filing and pursuing its protests that the awardees' proposal was technically unacceptable and had been unreasonably evaluated, where the agency took corrective action in response to meritorious protest allegations and the agency requests that the General Accounting Office find the protester so entitled.

Attorneys

DECISION

Communications-Applied Technology Company, Inc. (CAT) requests entitlement to be reimbursed the costs of pursuing its protests against the award of a contract to PRC, Inc., under request for proposals (RFP) No. 19987-010-D5-R, issued by Bechtel National, Inc. for the Department of the Army, Corps of Engineers. The solicitation was issued under Bechtel's contract No. DACA87-89-C-0007, for a chemical weapons disposal in-door radio communication system, with options for eight additional systems. CAT contends that the Corps unduly delayed taking corrective action in response to its protests. The Corps concurs and requests that we find CAT entitled to these costs.

We find that CAT is entitled to certain costs of filing and pursuing its protests, including reasonable attorneys' fees.[1]

On November 8, 1990, Bechtel awarded the contract to PRC with the consent of the Corps. CAT first protested the award to our Office on November 15, 1990. There then ensued a series of agency corrective actions, affirmations of the award to PRC, and CAT protests and requests for entitlement. In this regard, CAT withdrew its first protest on December 21, 1990, after the Corps promised to terminate the PRC award, and solicit and evaluate revised proposals. Following a second Bechtel award to PRC, CAT protested on May 16 and July 18, 1991, respectively. These protests were dismissed as academic on September 10, after the Corps promised to again solicit revised proposals for reevaluation. On September 12, CAT filed its initial request for a declaration of entitlement to costs of pursuing these protests. After the Corps affirmed Bechtel's award to PRC, CAT protested on January 28 and March 23, 1992, respectively. On May 25, on the eve of a hearing scheduled by our Office, the agency again announced that it was taking corrective action, which consisted of obtaining and evaluating revised proposals, and on May 27 we dismissed CAT's protests as academic. On June 2, CAT amended its request for a declaration of entitlement to costs to cover its additional protest costs.[2]

All of CAT's protests essentially questioned the determination that PRC's proposal was technically acceptable, detailing a variety of specific reasons why PRC's proposal would not successfully satisfy the agency's requirements. CAT urged from the outset that proposals were misevaluated because the Bechtel evaluators were not properly qualified and did not understand the sophisticated technology involved. CAT contended:

"[w]ithout the expertise of an RF [radio frequency] engineer experienced in antenna propagation in confined spaces, the vendors antenna systems calculations called for in the specifications could not have been evaluated for correctness.

"Without an RF engineer familiar with signal multipath/phase cancellation in industrial environments and signal combiner/splitter applications, vendor antenna networks for the primary radios and the emergency radios could not be properly evaluated."

As indicated above, while the Corps announced, and assertedly took, corrective action in response to each of CAT's protests that PRC's technical approach was unacceptable, it was only on May 25, 1992, that the Corps advised our Office that independent Army technical experts, in the course of reviewing materials for a hearing, had raised substantial questions concerning the accuracy and adequacy of Bechtel's proposal evaluations.[3] The Corps then ordered a new evaluation team to perform a de novo evaluation of the PRC and CAT proposals.

CAT seeks to recover its costs of filing and pursuing its protest costs. Pursuant to the Competition in Contract Act of 1984, 31 U.S.C. Sec. 3553(c) (1) (1988), we may declare a protester entitled to the costs for filing and pursuing a protest, including reasonable attorneys fees, if we determine that a contract award does not comply with a statute or regulation. Under section 21.6(e) of our Bid Protest Regulations, we may declare a protester entitled to such costs if the contracting agency decides to take corrective action on its own.

As confirmed by the Corps, the corrective action was in response to CAT's meritorious protests, which, with the assistance of a technical expert admitted to the protective order issued by our Office, detailed a number of reasons why PRC's technical proposal would not satisfy the agency's requirements. In responding to CAT's earlier protests, the Corps directed the reevaluation of the proposals and asserted that "Bechtel did in fact assemble and utilize a team of experts with extensive technical experience" and that Bechtel utilized "a team of experts with extensive technical experience." It was only when the Corps reviewed CAT's protest allegations with qualified RF engineers, just before the hearing, that the Corps confirmed the merits of CAT's contentions that PRC's proposal was improperly evaluated and would not meet the agency' s requirements, and initiated appropriate corrective action responsive to the protests.

In view of the improprieties on the record in this case and the agency's request, we find that CAT is entitled to recover the costs of filing and pursuing its protests, including reasonable attorneys' fees in accordance with the agreement of the parties.[4] See Carl Zeiss Inc.-- Entitlement to Costs, B-247207.2, Oct. 23, 1992, 92-2 CPD Para. 274. CAT should submit its claim for costs, detailing and certifying the time expended and costs incurred, directly to the agency within 60 working days of receipt of this decision. 4 C.F.R. Sec. 21.6(f) (1) (1993)

1. The Corps and CAT agree that the Corps should reimburse protest costs that CAT incurred beginning on July 1, 1991.

2. On June 25, 1993, after the latest evaluation, the Corps approved Bechtel's exclusion of CAT's proposal from the competitive range as technically unacceptable, and Bechtel's modification of the PRC contract to reflect the modifications in PRC's revised proposal. CAT protested this exclusion and the evaluation of PRC's proposal on July 2 and August 24, respectively. CAT withdrew these protests when the agency acknowledged liability to CAT for specified protest costs as well as certain costs of preparing revised proposals; otherwise this request does not involve these last-filed protests.

3. Up to this time, the agency had relied on Bechtel's technical expertise in consultation with the Corps' design contractor.

4. We also note that CAT and the Corps have agreed that CAT is entitled to certain proposal preparation costs associated with CAT's submission of proposal revisions. The Corps has the authority to agree to a monetary settlement in the form of bid or proposal preparation costs based on the theory that the government's issuance of a solicitation or requests for revised proposals implies a duty to consider all responses fairly and honestly. Payment Under Settlement Agreement Between the Army and Storage Tech. Corp., 71 Comp. Gen. 340 (1992), 92-1 CPD Para. 337. On this record, we have no basis to object to that portion of the Corps' proposed settlement.