B-243018.3, B-243019.3, B-243020.3, B-243021.3, Feb 19, 1992

B-243018.3,B-243021.3,B-243019.3,B-243020.3: Feb 19, 1992

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DIGEST: Claim for costs is dismissed where protester's basis for claim at General Accounting Office (GAO) was agency's initial refusal to consider any claim for protest costs pending judicial resolution of whether GAO's award of such costs is constitutional. Agency has now reversed its position and will consider the claim. We found that the awards were improper based on faulty technical and price evaluations. Explaining that VA refused to consider the claim on the ground that the constitutionality of our Office's authority to award protest costs is currently under review by a federal court in United States v. Cost claims initially are for resolution by the protester and the contracting agency.

B-243018.3, B-243019.3, B-243020.3, B-243021.3, Feb 19, 1992

DIGEST: Claim for costs is dismissed where protester's basis for claim at General Accounting Office (GAO) was agency's initial refusal to consider any claim for protest costs pending judicial resolution of whether GAO's award of such costs is constitutional, and agency has now reversed its position and will consider the claim.

Attorneys

Tennessee Wholesale Drug Company, Inc.-- Claim for Costs:

Tennessee Wholesale Drug Company, Inc. (TWD) claims the costs of filing and pursuing its protests, which we sustained in Tennessee Wholesale Drug Co., Inc., B-243018 et al., June 28, 1991, 91-2 CPD Para. 9.

We dismiss the claim.

TWD's protests challenged the award of contracts by the Department of Veterans Affairs (VA) for prime vendor services in four VA hospital regions to Harris Wholesale, Inc. under request for proposals (RFP) Nos. M5-Q2-91 and M5-Q4-91, and to McKesson Corporation, under RFP Nos. M5-Q3- 91 and M5-Q5-91. We found that the awards were improper based on faulty technical and price evaluations, and recommended that the agency reevaluate proposals. We also found TWD entitled to the costs of filing and pursuing the protests.

On September 24, 1991, TWD submitted its claim for protest costs to our Office, explaining that VA refused to consider the claim on the ground that the constitutionality of our Office's authority to award protest costs is currently under review by a federal court in United States v. Instruments, S.A., No. 91-1574 (LFO) (D.D.C. June 26, 1991). The agency subsequently reconsidered its position, and on January 28, 1992, instructed TWD to resubmit the claim and supporting documentation.

Under our Regulations, 4 C.F.R. Sec. 21.6(f)(1) (1991), cost claims initially are for resolution by the protester and the contracting agency. Since VA is considering the claim, we will not review the matter. Should the parties be unable to reach an agreement, TWD may request our determination at that time. 4 C.F.R. Sec. 21.6(f)(2).

The claim is dismissed.