[Award of Costs Under Sustained Protest Against Navy Solicitation for Incinerator Grates]
Highlights
GAO had sustained a firm's protest against a Navy solicitation for incinerator grates, since the Navy failed to show that certain restrictions were necessary to meet its actual needs. GAO had recommended that the Navy cancel the solicitation and resolicit the requirement. The Navy subsequently postponed the procurement indefinitely due to environmental problems. GAO held that the protester was entitled to reimbursement for its protest preparation costs. Accordingly, the protester was advised to submit a claim.
B-224305.2, Nov 4, 1988, 88-2 CPD 439
PROCUREMENT - Sealed Bidding - Bids - Preparation costs PROCUREMENT - Bid Protests - GAO procedures - Preparation costs DIGEST: Award of costs of filing and pursuing protest, including attorneys' fees, is granted where initial decision sustained protester's challenge to restrictive design specifications which unreasonably excluded protester from competition.
Morse Boulger, Inc.-- Request for Costs:
By this decision, we award Morse Boulger, Inc. (MBI), its costs of filing and pursuing its protest, including attorneys' fees.
MBI initially protested, in September 1986, the Department of the Navy's use of unduly restrictive design specifications in invitation for bids (IFB) No. N62470-83-B-8778 for replacement of two Detroit Stoker Company incinerator grates (stokers). The IFB restricted bidders to the Detroit Stoker proprietary design. In our original decision, we held that the Navy had failed to make a prima facie showing that it required the protested restrictions to meet its actual needs, and recommended that the Navy cancel the solicitation, revise its requirements as appropriate, and resolicit. Morse Boulger, Inc., B-224305, Dec. 24, 1986, 66 Comp.Gen. ***, 86-2 CPD Para. 715.
The Navy has advised our Office that the solicitation was canceled; however, during its review of the requirement the Navy discovered that the facility would produce quantities of toxic wastes. The cost of resolving the environmental issue is expected to exceed available funding. Consequently, the procurement is on indefinite hold, and will not be resolicited, until funding is available for the stoker replacement and to resolve the environmental concerns.
Under these circumstances, we find that MBI is entitled to recover the costs of filing and pursuing the protest, including attorneys' fees. See Competition in Contracting Act of 1984, 31 U.S.C. Sec. 3554(c)(1)(A) (Supp. IV 1986). MBI should submit its claim for reimbursement of these costs directly to the Navy, and if the parties cannot reach agreement within a reasonable time, our Office will determine the appropriate amount to be paid. Bid Protest Regulations, 4 C.F.R. Sec. 21.6(e) (1988).