Braswell Services Group, Inc.-- Claim for Costs B-248336.2 June 4, 1993 72 Comp.Gen. 237

B-248336.2: Jun 4, 1993

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Inc. requests that we determine the amount that it is entitled to recover from the United States Coast Guard for bid preparation costs and the costs of filing and pursuing its protest in Braswell Servs. We found that Braswell was entitled to recover its bid preparation costs and the costs of filing and pursuing the protest. 506.00" No further breakdown of the expenses claimed or supporting documentation was included with the claim. The claim was not certified and contained no supporting affidavits. Contacted Braswell and informed its attorney that additional information was needed to resolve the claim.[5] Braswell denies that it was contacted by the contracting officer. The Coast Guard also stated that Braswell might be precluded from reimbursement because its claim was not properly documented or certified within 60 days as required by the governing regulation.

Braswell Services Group, Inc.-- Claim for Costs B-248336.2 June 4, 1993 72 Comp.Gen. 237

Procurement Bid Protests GAO procedures Preparation costs Travel expenses Procurement Sealed Bidding Bids Preparation costs Claim for bid preparation costs and costs of filing and pursuing protest at the General Accounting Office (GAO) may not be paid to the extent that the protester's claim filed with the GAO repudiated the claim filed with the contracting agency more than 4 months earlier. However, claim for travel expenses incurred in preparing bid may be paid because the protester's timely claim with the contracting agency for these expenses has been adequately documented and has been affirmed by the protester in filing its claim with GAO.

Attorneys

DECISION Braswell Services Group, Inc. requests that we determine the amount that it is entitled to recover from the United States Coast Guard for bid preparation costs and the costs of filing and pursuing its protest in Braswell Servs. Group, Inc., B-248336, Aug. 19, 1992, 92-2 CPD Para. 113. In that decision, we sustained Braswell's protest of the rejection of its bid as nonresponsive under invitation for bids No. DTCG80-92-B-3FA771, issued by the United States Coast Guard for drydocking repairs and alterations to the USCG Red Beech, a 157-foot buoy tender.

We deny the claim in part and grant it in part.

In our August 19 decision, we found that Braswell was entitled to recover its bid preparation costs and the costs of filing and pursuing the protest, and we instructed Braswell to file its claim for costs directly with the Coast Guard.[4] In a letter to the contracting agency dated October 1, 1992, Braswell requested that it be reimbursed a total of $25,506, including:

"Bid Preparation: 180 hrs at $37.03/hr = $6,665.00

Shipcheck: 16 hrs at $37.03/hr = $592.00

Travel and Expenses: $999.00

Legal Expenses: $17,250.00 TOTAL: $25,506.00"

No further breakdown of the expenses claimed or supporting documentation was included with the claim.

The Coast Guard considered the claim insufficient, because, among other things, the claim contained no explanation for the dollar amounts, no statement of which employees had been involved nor what tasks each accomplished toward preparing the bid, no invoice from a law firm or any breakdown of legal expenses incurred, and no invoices or other receipts verifying travel costs. Moreover, the claim was not certified and contained no supporting affidavits. The Coast Guard reports that the contracting officer, therefore, contacted Braswell and informed its attorney that additional information was needed to resolve the claim.[5] Braswell denies that it was contacted by the contracting officer, but states that an attorney for the Coast Guard did telephone its attorney in early November and indicated that additional information supporting the claim would be requested.

By letter dated November 16, 1992, Braswell again requested payment of the Coast Guard. By letter of November 23, the Coast Guard responded, pointing out the numerous deficiencies of Braswell's claim and quoting the General Accounting Office (GAO) regulation, 4 C.F.R. Sec. 21.6(f)(1) (1993), which explains what must be submitted by a protester to support its claim for costs. The Coast Guard also stated that Braswell might be precluded from reimbursement because its claim was not properly documented or certified within 60 days as required by the governing regulation.

By letter dated December 15, Braswell explained to the Coast Guard how it had calculated its bid preparation and protest costs. Braswell included receipts for travel and lodging; an affidavit from its chief estimator explaining who worked on bid preparation; what each employee did; and an estimate of the numbers of hours each worked. Braswell also explained that it did not use the hourly rate of pay actually paid to each employee because all were paid yearly salaries. Instead, Braswell used one hourly rate of $37.03[6] for all employees, except its in-house attorney. Braswell stated that the employees who prepared the bid do not maintain records of time spent on any particular job and, therefore, the hours claimed for bid preparation were estimates. Braswell also included an affidavit from its attorney stating that he had spent in excess of 115 hours pursuing the protest and that "a reasonable rate for an attorney pursuing such a protest is $150.00 per hour."

Stating that the Coast Guard had failed to make a decision on its claim within a reasonable time period, by letter of January 4, 1993, Braswell filed a claim for its bid preparation and protest costs with our Office. Braswell also requested reimbursement of the costs of pursuing its claim for costs. By letter dated February 8, Braswell commented on the Coast Guard's report on this matter and changed the amounts it claimed as the cost of its employees' bid preparation and protest work.

Where we find that an agency should reimburse a protester for its bid preparation costs and the costs of filing and pursuing its protest, our Bid Protest Regulations, 4 C.F.R. Sec. 21.6(f)(1) provide that:

"The protester shall file its claim for costs, detailing and certifying the time expended and costs incurred, with the contracting agency within 60 days after receipt of the decision on the protest or the declaration of entitlement to costs. Failure to file the claim within such time shall result in forfeiture of the protester's right to recover its costs . . . ." [Emphasis added.]

In its initial claim with the Coast Guard, Braswell claimed $7,257 as the cost of labor for bid preparation and shipcheck based upon a labor rate of $37.03 per hour. Braswell also claimed legal expenses totaling $17,250.[7] However, in its February 8 letter to our Office, Braswell stated that bid preparation and shipcheck work was performed by employees at hourly rates ranging from $47.47 to $71.20 (including 184.2 percent overhead costs, 11.8 percent general and administrative costs (G&A), and 3.6 percent for the cost of money). The total costs claimed for these two categories of labor was therefore revised to $10,189.64--an upward adjustment of $2,932.64. Braswell also revealed in its comments that its in-house attorney actually was paid at a base hourly rate of $33.65 rather than the $150 per hour originally claimed. After adding overhead, G&A, and cost of money to the attorney's base pay, Braswell revised its claim for legal expenses to $12,739.22[8]--a downward adjustment of $4,510.78.

Braswell's claim for the costs of labor related to bid preparation, shipcheck, and legal work is denied. It is clear from Braswell's later submission to our Office that the claimed labor costs, making up all of the initial claim with the Coast Guard except travel expenses, did not represent Braswell's actual costs. In our opinion, except for the $999 claimed for travel expenses, Braswell basically repudiated the entire claim it had filed with the Coast Guard more than 4 months earlier when it submitted its February 8, 1993, letter to our Office revealing its actual labor costs.

Braswell's February 8 letter was the first claim filed including actual labor costs incurred for bid preparation and filing and pursuing the protest. Our Regulations are clear--a protester that fails to comply with the claim filing requirement "shall" forfeit its right to be reimbursed its costs. Accordingly, because Braswell failed to file a claim for its actual labor costs with the contracting agency within 60 days after receipt of our decision sustaining its protest, we conclude that Braswell forfeited its right to recover those costs. See Test Sys. Assocs., Inc.-- Claim for Costs, 72 Comp.Gen. 169, B-244007.7, May 3, 1993, 93-1 CPD Para. 351; 4 C.F.R. Sec. 21.6(f)(1).

Braswell's claim for travel and related expenses is granted. The initial claim for these expenses was filed with the Coast Guard within 60 days after receipt of our decision sustaining Braswell's protest. By letter dated December 15, 1992, Braswell submitted to the Coast Guard adequate documentation--including copies of vouchers for airplane tickets and a rental car, parking receipts, and a per diem check--totaling $998.80[9] for travel expenses incurred as part of bid preparation. During pursuit of its claim with our Office, Braswell never repudiated this portion of the original claim. As the initial claim for travel and related expenses was timely filed with the Coast Guard, was subsequently supported by adequate documentation, and was affirmed by Braswell in filing its claim with our Office, Braswell is entitled to $998.80 for these expenses.

Finally, Braswell claims $2,409.21 as the costs of pursuing this claim for costs. However, in view of the fact that all but $998.80 of its claim for bid preparation and protest costs has been denied, this portion of the claim is also denied.

The claim for costs is denied in part and granted in part.

4. According to Braswell, it received our August 19 decision on August 28.

5. The Coast Guard also states that the contracting officer drafted a letter to Braswell requesting additional supporting information, but Braswell denies having received any such letter. The Coast Guard reports that it has no evidence to show that the letter was ever sent and that its copy of that letter has been lost.

6. This was the forward pricing rate Braswell had negotiated with the Navy in a February 1992 agreement.

7. The original claim did not state how this total was calculated.

8. An affidavit from Braswell's Chief Financial Officer stated a slightly different amount, $12,738.55, for the attorney's work on the protest.

9. The original claim for travel expenses was for $999.00, rather than the $998.80 that was documented. However, we attribute the slight discrepancy to rounding of figures in the initial claim.