[Protests of U.S. Bankruptcy Court Contract Award for Photocopying Services]
Highlights
Two firms protested an U.S. Bankruptcy Court contract award for photocopying services, contending that the Court: (1) unreasonably evaluated their bids; and (2) should have made award to one of them, since their low bids were the most advantageous to the government. GAO held that: (1) it had jurisdiction to review the award, since the contract benefitted the government and was for the procurement of services; (2) the Court unreasonably evaluated the bids, since its cost analysis did not provide a rational basis for source selection; and (3) the solicitation was materially defective, since it did not provide a basis for comparing bid costs. Accordingly, the protests were sustained and GAO recommended that the Court: (1) revise the solicitation to specify the services upon which bidders should submit costs on a fixed-price basis and its future needs for each service; (2) terminate the awardee's contract if its reevaluation of the bids indicates that the awardee is not the most advantageous bidder; (3) make award to the most advantageous bidder; and (4) reimburse the protesters for their protest costs.
B-235635.2, Jan 5, 1990, 90-1 CPD 19
PROCUREMENT - Bid Protests - GAO decisions - Recommendations - Modification DIGEST: Prior recommendation to terminate contract is modified where agency advises contract is substantially complete. Instead, protester is entitled to recover reasonable bid preparation costs and costs of filing and pursuing its protest.
Gulf Electric Construction Co., Inc.-- Claim for Costs:
By this decision, we award Gulf Electric Construction Co., Inc., its bid preparation costs in addition to its costs of filing and pursuing its protest, including attorneys' fees, as awarded in our initial decision. Gulf Electric Constr. Co., Inc., B-235635, Sept. 26, 1989, 68 Comp.Gen. ***, 89-2 CPD Para. 272.
Gulf protested to our Office the award of a contract to Atlantic Electric Co., Inc., the apparent low bidder, under invitation for bids (IFB) No. FO9650-89-B-0005, issued by the Air Force for the repair and upgrading of lighting fixtures in a building at Robins Air Force Base, Georgia. sustained the protest. We found that Atlantic's failure to acknowledge prior to bid opening an amendment which increased by $650 the estimated cost of performance rendered Atlantic's bid nonresponsive because the cost impact amounted to more than two times the difference between its low bid and the second low bid and more than 30 percent of the difference between its low bid and Gulf's responsive bid. We determined that such an amendment had a material impact on cost, and therefore, the Air Force erred in allowing Atlantic to acknowledge the amendment after bid opening. We recommended that the Air Force terminate the contract awarded to Atlantic and award the contract to Gulf, if otherwise appropriate. Further, we found that Gulf was entitled to its protest costs. Bid Protest Regulations, 4 C.F.R. Sec. 21.6(d) (1989).
Regarding our recommendation that the agency terminate Atlantic's contract, the Air Force states that Atlantic has substantially completed the contract. Under the circumstances, we modify our prior recommendation and find that Gulf is entitled to recover its bid preparation costs in addition to its protest costs. 4 C.F.R. Sec. 21.6(d); see Meridian Corp.- - Award of Costs, B-228468.2, June 14, 1988, 88-1 CPD Para. 566.
In this regard, Gulf has filed a claim with the Air Force in the amount of $17,640-- $720 for its costs of filing and pursuing its protest and $16,920 which appears to represent Gulf's anticipated profit on the project. The agency requested that Gulf submit an itemized invoice with supporting documentation in order to be reimbursed for its protest costs, and it denied the remainder of Gulf's claim. Gulf then filed its claim with our Office.
With respect to Gulf's claim for $720 for its costs of filing and pursuing its protest, the agency has stated that it is prepared to consider this claim for reimbursement, but Gulf has not yet provided documentation to support the remainder of its claim. We have held that a successful protester who was not represented by an attorney can be reimbursed for the time its employees spent pursuing the protest, where it documents the number of hours/days spent by each employee on activities directly related to pursuing the protest and the cost elements of each claimed employee's hourly/daily charge. See Ultraviolet Purification Sys., Inc.-- Claim for Bid Protest Costs, B-226941.3, Apr. 13, 1989, 89-1 CPD Para. 376. Gulf should submit its documentation to the Air Force.
Also, to the extent the remainder of Gulf's claim represents anticipated profit, the general rule is that anticipated profits may not be recovered even in the presence of wrongful action. East West Research, Inc.-- Reconsideration, B-233623.2, Apr. 14, 1989, 89-1 CPD Para. 379.