[Request for Reconsideration of Dismissed Protest of HHS Solicitation]
Highlights
A firm requested reconsideration of its dismissed protest against a Department of Health and Human Services (HHS) solicitation. GAO had held that: (1) HHS continuance with bid opening after receiving the protester's protest constituted adverse action on the protest; and (2) the protester untimely filed its protest more than 10 days after adverse action on its protest. In its request for reconsideration, the protester contended that it was not certain what action HHS would take on its protest. GAO held that the protester did not provide: (1) a reason beyond its control that prevented it from timely filing its protest; and (2) sufficient information which would warrant reconsideration under the significant-issue exception. Accordingly, the request for reconsideration was denied.
B-230153.2, Apr 14, 1988, 88-1 CPD 367
PROCUREMENT - Bid Protests - GAO procedures - Preparation costs DIGEST: Dismissal of protest as academic does not provide a basis upon which bid protest costs may be awarded.
Interstate Diesel Service, Inc:
Interstate Diesel Service, Inc. submits a claim for the costs of pursuing a protest which we previously dismissed as academic. Interstate protested the Defense Logistic Agency's (DLA) apparent rejection of its quote under request for quotations No. DLA700-88-Q RA99. After the protest was filed, the agency determined that Interstate's quote should, in fact, have been considered. DLA therefore canceled the award it had made to a higher priced offeror and is evaluating the protester's offer.
We issued no decision on the merits of Interstate's protest, finding it to be academic since the contracting agency has granted the requested relief. Interstate does not question this determination, but requests the reimbursement of its protest costs. According to Interstate, even though its offer has been reinstated, it should nonetheless be granted its costs.
We disagree. Our authority to allow the recovery of costs claimed by Interstate is predicated upon a determination by our Office that the solicitation, proposed award or award of a contract does not comply with a statute or regulation. 31 U.S.C. Sec. 3554(c)(1) (Supp. III 1985); Interstate Diesel Service, Inc., B-229610, et al., Feb. 17, 1988, 88-1 CPD Para. 162. A decision on the merits of a protest is an essential condition to a declaration that the protester is entitled to the award of costs of filing and pursuing the protest, including attorneys' fees. Pitney Bowes, Inc., 64 Comp.Gen. 623 (1985), 85-1 CPD Para. 696. Since we have made no such determination here, we have no basis for awarding Interstate's costs.
The claim is denied.