B-211228.2, FEB 22, 1984
Highlights
PRIOR DECISION DISALLOWED SUCCESSFUL PROTESTER'S CLAIM FOR BID PREPARATION COSTS ON THE GROUND THAT LOW BID WAS INELIGIBLE FOR AWARD DUE TO A PRICE IN EXCESS OF AVAILABLE FUNDING. DENIAL OF CLAIM IS AFFIRMED ON RECONSIDERATION. PROTESTER'S ALLEGATION THAT SUPPLEMENTAL FUNDING MIGHT HAVE BEEN FOUND TO FUND AWARD HAD AGENCY PROPERLY FOUND BID TO BE RESPONSIVE MUST BE CONSIDERED TO BE SPECULATION. 2. EXPENSES INCURRED IN PURSUING A PROTEST ARE NONCOMPENSABLE. THE BID COULD NOT HAVE BEEN ACCEPTED. ROAN CONTENDS THAT: (1) JUSTICE WOULD HAVE SOUGHT AND OBTAINED SUPPLEMENTAL FUNDING IF ROAN'S BID HAD NOT ERRONEOUSLY BEEN CONSIDERED TO BE UNBALANCED. (2) SINCE OUR DECISION WAS ISSUED AFTER THE FIRST YEAR OF PERFORMANCE AND THE EXERCISE OF THE FIRST OPTION.
B-211228.2, FEB 22, 1984
DIGEST: 1. EVEN THOUGH PROCURING AGENCY IMPROPERLY REJECTED PROTESTER'S BID, PRIOR DECISION DISALLOWED SUCCESSFUL PROTESTER'S CLAIM FOR BID PREPARATION COSTS ON THE GROUND THAT LOW BID WAS INELIGIBLE FOR AWARD DUE TO A PRICE IN EXCESS OF AVAILABLE FUNDING. DENIAL OF CLAIM IS AFFIRMED ON RECONSIDERATION. PROTESTER'S ALLEGATION THAT SUPPLEMENTAL FUNDING MIGHT HAVE BEEN FOUND TO FUND AWARD HAD AGENCY PROPERLY FOUND BID TO BE RESPONSIVE MUST BE CONSIDERED TO BE SPECULATION. 2. EXPENSES INCURRED IN PURSUING A PROTEST ARE NONCOMPENSABLE.
ROAN CORPORATION - RECONSIDERATION:
ROAN CORPORATION (ROAN) REQUESTS RECONSIDERATION OF OUR DISALLOWANCE OF BID PREPARATION COSTS IN ROAN CORPORATION, B-211228, JANUARY 25, 1984, 84-1 CPD . BEFORE DISALLOWING ROAN'S CLAIM, HOWEVER, OUR DECISION ALSO SUSTAINED THE COMPANY'S PROTEST AGAINST THE UNITED STATES MARSHALS SERVICE'S (JUSTICE) REJECTION OF ITS LOW BID BECAUSE JUSTICE ERRONEOUSLY CONSIDERED THE BID TO BE MATERIALLY UNBALANCED. NEVERTHELESS, WE COULD NOT AWARD ROAN BID PREPARATION COSTS SINCE ROAN'S BID EXCEEDED AVAILABLE FUNDING, AND THE BID COULD NOT HAVE BEEN ACCEPTED. ROAN CONTENDS THAT: (1) JUSTICE WOULD HAVE SOUGHT AND OBTAINED SUPPLEMENTAL FUNDING IF ROAN'S BID HAD NOT ERRONEOUSLY BEEN CONSIDERED TO BE UNBALANCED; AND (2) SINCE OUR DECISION WAS ISSUED AFTER THE FIRST YEAR OF PERFORMANCE AND THE EXERCISE OF THE FIRST OPTION, ROAN IS "EFFECTIVELY DENIED THE BENEFITS OF THE PROCUREMENT." CONSEQUENTLY, ROAN CLAIMS THAT PAYMENT OF ITS BID PREPARATION COSTS IS THE ONLY PROPER MEANS OF REIMBURSING ROAN FOR THE COSTS OF SUCCESSFULLY PURSUING ITS PROTEST. THESE COSTS, ACCORDING TO ROAN'S ATTORNEY, ARE "NOT INSIGNIFICANT."
WE AFFIRM OUR PRIOR DECISION.
THE STANDARD APPLIED TO REQUESTS FOR RECONSIDERATION IS WHETHER THE REQUESTER HAS CONVINCINGLY SHOWN ERRORS OF FACT OR LAW IN OUR EARLIER DECISION. SEE CORBETTA CONSTRUCTION COMPANY OF ILLINOIS, INC., 55 COMP. GEN. 972, 975 (1976), 76-1 CPD 240.
AS TO THE FIRST CONTENTION, ROAN, HAVING THE BURDEN OF PROOF, HAS NOT PRESENTED ANY PROBATIVE EVIDENCE SHOWING THAT THIS FUNDING WOULD HAVE BEEN MADE AVAILABLE AND WE MUST ASSUME THAT ITS ALLEGATION CONCERNING SUPPLEMENTAL FUNDING IS SPECULATIVE ONLY.
ROAN'S SECOND CONTENTION, THAT AWARDING IT BID PREPARATION COSTS IS A PROPER MEANS OF REIMBURSING ROAN FOR THE COSTS OF SUCCESSFULLY PURSUING ITS PROTEST, IS EQUALLY LACKING IN MERIT. WE HAVE LONG HELD THAT EXPENSES INCURRED IN PURSUING PROTESTS ARE NONCOMPENSABLE. KENT UNIFORM COMPANY, INC., B-188931, JULY 25, 1977, 77-2 CPD 46. MOREOVER, TO THE EXTENT THAT ROAN CONTENDS THAT IT SHOULD BE PAID ITS BID PREPARATION EXPENSES BECAUSE OF "EQUITABLE" REASONS, WE ARE WITHOUT AUTHORITY TO GRANT THE COMPANY'S REQUEST.
ROAN HAS NOT DEMONSTRATED ANY ERRORS OF FACT OR LAW IN OUR PRIOR DECISION AND, ACCORDINGLY, THAT DECISION IS AFFIRMED.