B-239167.4, May 9, 1991, 91-1 CPD 450

B-239167.4: May 9, 1991

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PROCUREMENT - Competitive Negotiation - Offers - Preparation costs PROCUREMENT - Bid Protests - GAO procedures - Preparation costs DIGEST: Claim for proposal preparation and protest costs where agency took corrective action remedying alleged procurement defect in response to protest is denied since award of protest costs is contingent upon issuance of decision on merits finding that agency violated a statute or regulations in the conduct of a procurement. The protest was rendered academic and our Office dismissed the protest. Our authority to award such costs is predicated on a determination by this Office that an agency has acted contrary to statute or regulation. 31 U.S.C. A protester is not entitled to reimbursement of its costs where the protest is dismissed as academic.

B-239167.4, May 9, 1991, 91-1 CPD 450

PROCUREMENT - Competitive Negotiation - Offers - Preparation costs PROCUREMENT - Bid Protests - GAO procedures - Preparation costs DIGEST: Claim for proposal preparation and protest costs where agency took corrective action remedying alleged procurement defect in response to protest is denied since award of protest costs is contingent upon issuance of decision on merits finding that agency violated a statute or regulations in the conduct of a procurement.

Attorneys

Sharpe Refrigeration, Inc.:

Sharpe Refrigeration, Inc. claims its proposal preparation and protest costs incurred in connection with the Air Force's conduct of a procurement for commissary refrigeration maintenance services for the Northeast Commissary Region under request for proposals (RFP) No. F44600-89-R-0015.

We deny the claim for costs.

Sharpe filed a protest on April 3, 1990, with our Office concerning the Air Force's conduct of the procurement. The Air Force decided to cancel the procurement and resolicit when its Office of Special Investigations found certain irregularities in the scoring of proposals. Since the agency took corrective action responsive to the protest, the protest was rendered academic and our Office dismissed the protest.

Sharpe now claims its proposal preparation and protest costs, but states no basis to recover such costs. Our authority to award such costs is predicated on a determination by this Office that an agency has acted contrary to statute or regulation. 31 U.S.C. Sec. 3554(c)(1) (1988). Under our present Bid Protest Regulations, a protester is not entitled to reimbursement of its costs where the protest is dismissed as academic, and we do not issue a decision on the merits. /1/ See Maytag Aircraft Corp.-- Recon.; Claim for Protest Costs, 69 Comp.Gen. 83 (1989), 89-2 CPD Para. 457; Brandebury Aerostructures-- Recon.; Claim for Protest Costs; B-236792.5, May 31, 1990, 90-1 CPD Para. 510.

The claim for costs is denied.

/1/ Under a recently promulgated amendment to our Bid Protest Regulations that is effective for protests filed on or after April 1, 1991, there is provision for a protester to recover, in appropriate circumstances, the costs of pursuing its protest, including attorneys' fees, where the contracting agency unduly delays corrective action in response to a clearly meritorious protest. 56 Fed.Reg. 3759 (1991) (to be codified at 4 C.F.R. Sec. 21.6(e)).