B-237377.2, Apr 26, 1990

B-237377.2: Apr 26, 1990

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Protest costs may not be awarded to a successful protester when sales contracts are involved. We found Fort Apache was entitled to its protest costs. Stating that our Bid Protest Regulations do not provide for the award of protest costs when sales contracts are involved. Our finding that the protester was entitled to reimbursement of costs should not have included the costs of filing the protest. Our decision is modified accordingly.

B-237377.2, Apr 26, 1990

DIGEST

Attorneys

United States Department of Agriculture-- Reconsideration:

The Department of Agriculture requests a modification to our decision in Fort Apache Timber Co., B-237377, Feb. 22, 1990, 90-1 CPD Para. 199. That decision sustained Fort Apache's protest against its exclusion from the Duck Lake timber sale by the Forest Service, Springerville, Arizona.

We did not recommend that the contract award be disturbed since work had proceeded on the sale and the sale contract does not contain a termination for convenience clause. However, we found Fort Apache was entitled to its protest costs, including attorneys' fees, and the costs of preparing its bid.

The Forest Service indicates that it intends to pay Fort Apache's bid preparation costs. However, it questions the award of the protest costs, stating that our Bid Protest Regulations do not provide for the award of protest costs when sales contracts are involved.

We agree. Our Regulations at 4. C.F.R. Sec. 21.11(b) (1989) provide that when we consider protests of sales, the provisions of 4 C.F.R. Sec. 21.6(d), pertaining to the award of costs of filing and pursuing a protest, do not apply. Therefore, our finding that the protester was entitled to reimbursement of costs should not have included the costs of filing the protest. Our decision is modified accordingly.