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B-236238.4, May 11, 1992

B-236238.4 May 11, 1992
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PROCUREMENT - Bid Protests - GAO procedures - GAO decisions - Reconsideration PROCUREMENT - Bid Protests - GAO procedures - Preparation costs - Attorney fees DIGEST: The General Accounting Office will not modify its previous award of attorneys' fees involved in pursuing both an initial protest and a reconsideration where. The initial decision was reversed and the protest was sustained. Because a reconsideration is. The award of attorneys' fees in this instance merely provides the protester with the remedy which should have been awarded initially. We reversed our initial decision after concluding that the Navy's concern about whether it would receive unlimited data rights was addressed in the Department of Defense regulations on this subject.

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B-236238.4, May 11, 1992

PROCUREMENT - Bid Protests - GAO procedures - GAO decisions - Reconsideration PROCUREMENT - Bid Protests - GAO procedures - Preparation costs - Attorney fees DIGEST: The General Accounting Office will not modify its previous award of attorneys' fees involved in pursuing both an initial protest and a reconsideration where, upon reconsideration, the initial decision was reversed and the protest was sustained, because a reconsideration is, in essence, a continuation of the same protest, involving the same procurement, the same parties, and the same issues, and the award of attorneys' fees in this instance merely provides the protester with the remedy which should have been awarded initially.

Attorneys

Department of the Navy-- Request for Modification of Remedy:

The Department of the Navy requests our Office to modify our decision to award attorneys' fees to Varian Associates, Inc., related to the cost of filing an initial protest and a reconsideration. According to the Navy, since we denied Varian's initial protest (Varian Assocs., Inc., B-236238, Nov. 22, 1989, 89-2 CPD Para. 487), and then reversed the initial decision and sustained the protest upon reconsideration (Varian Assocs., Inc.-- Recon., B-236238.2, June 28, 1990, 90-1 CPD Para. 595), the award of attorneys' fees should be limited to the cost of pursuing the reconsideration.

We deny the Navy's request for a modification of the award of attorneys' fees.

In its initial protest, Varian argued that the Navy erred in rejecting Varian's best and final offer (BAFO) for the research, development, fabrication, and delivery of a low noise amplifier. We initially upheld the Navy's rejection of Varian's BAFO after concluding that the Navy reasonably decided that it could not ascertain without further discussions whether the Navy would receive unlimited data rights to the amplifier under Varian's proposed cost-sharing arrangement.

Upon reconsideration, we reversed our initial decision after concluding that the Navy's concern about whether it would receive unlimited data rights was addressed in the Department of Defense regulations on this subject. Specifically, the then-current technical data regulations in the Department of Defense Federal Acquisition Regulation Supplement (DFARS) stipulated that the government will receive unlimited rights in technical data when the data is developed as a result of performing research and development "specified as an element of performance" under a government contract. DFARS Sec. 227.472-3(a)(1) (DAC 88-2). /1/ Therefore, since the contracting officer's concerns were answered by the applicable regulations, it was not reasonable to reject Varian's BAFO for this reason. See Varian Assocs., Inc.-- Recon., supra.

As a result of our conclusion that Varian was correct from the outset, and that the agency unreasonably rejected a proposal that it would have otherwise selected because of a faulty reading of the technical data rights regulations, we awarded attorneys' fees to Varian incurred in pursuing both the initial protest and the reconsideration. Our authority to grant protest costs, including reasonable attorneys' fees, is set forth at 31 U.S.C. Sec. 3554(c)(1) (1988), which authorizes granting such costs "if the Comptroller General determines that ... the award of a contract does not comply with a statute or regulation. ..."

The Navy's request that we limit the award of attorneys' fees to the cost of pursuing the reconsideration is inconsistent with the fact that a reconsideration is a continuation of the initial protest. Our Bid Protest Regulations permit any party-- protesters, interested parties, or the agency-- to submit evidence to show that a prior decision contains errors of fact or law, or information not previously considered, that warrants reversal of the earlier decision. 4 C.F.R. Sec. 21.12(a) (1991). Such requests involve the same procurement, the same parties, and the same issues, with one difference: the party seeking reconsideration must convincingly establish that the previous decision of our Office was in error. When a party succeeds in making that showing, we will attempt to correct the error, and as in this case, attempt to provide as close a remedy as possible to the one that should have been awarded initially.

In our view, the modification sought by the Navy here would be inconsistent with the public interest purpose of our authority to award protest costs-- "to relieve parties with valid claims of the burden of vindicating the public interests which Congress seeks to promote." See Hydro Research Science, Inc.-- Claim for Costs, 68 Comp.Gen. 506 (1989), 89-1 CPD Para. 572; see also Computer Lines, GSBCA No. 8334-C, Oct. 9, 1986, 86-2 CPD Para. 19,403. In applying this policy, we see no basis for limiting the recovery of protest costs to only those fees incurred to request our Office to reconsider a decision that ultimately is shown to be factually or legally incorrect. In such cases, since the protester should have prevailed initially, "the burden of vindicating the public interest" includes both the initial protest and the subsequent request for reconsideration.

Finally, the award of attorneys' fees in this situation is in accord with our prior decisions. In other protests sustained on reconsideration, our Office has awarded the costs, including reasonable attorneys' fees, of pursuing both the initial protest (which was denied or dismissed) and the reconsideration. See Diversified Computer Consultants-- Recon., B-241764.2, Oct. 3, 1991, 91-2 CPD Para. 287; see also Hydro Research Science, Inc.-- Claim for Costs, supra (attorneys' fees awarded where protest sustained on reconsideration although the initial protest was dismissed after the agency took corrective action)] Consolidated Devices, Inc.-- Recon., B-225602.2, Apr. 24, 1987, 87-1 CPD Para. 437 (attorneys' fees awarded where protest sustained on reconsideration although the initial protest was dismissed as untimely).

Since the award of attorneys' fees to Varian for both the costs incurred in pursuing its initial protest and its request for reconsideration is an appropriate remedy, serves the public interest inherent in awarding such fees, and is consistent with our prior cases, the request for modification of our earlier remedy is denied.

Honorable H. Lawrence Garrett III The Secretary of the Navy

Enclosed is a copy of our decision of today denying the Navy's request for modification of our decision to award attorneys' fees to Varian Associates, Inc., related to the cost of filing the protest and request for reconsideration in Varian Assocs., Inc., B-236238, Nov. 22, 1989, 89-2 CPD Para. 487, reversed, B-236238.2, June 28, 1990, 90-1 CPD Para. 595.

The Navy initially filed its request on September 20, 1990. By notice dated September 21, we dismissed the request as untimely. We learned that the parties do not have any record of receiving our dismissal notice when, on Nov. 18, 1991, Navy inquired as to the status of its request. Since the protester did not object to our consideration of the Navy's request and it appears that a decision from our Office will facilitate settlement of an outstanding claim for costs, we have considered the issues raised by the Navy in `#FV66'.

/1/ The DFARS provision in effect at the time of the two Varian protests has been reformulated and is now set forth at DFARS Sec. 227.402- 72(a)(1)(ii) (1991).

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