Tri Tool, Inc.--Entitlement to Costs, B-265649.4, September

B-265649.4 Sep 09, 1997 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights GAO was requested by the Department of Justice and a protester to recommend the amount that Justice should pay the protester for the costs of preparing its bid and filing its sustained protest. GAO held that: (1) Justice correctly disallowed the protester's claim for lost anticipated profits; and (2) Justice should reimburse the protester for those costs that are supported by documentation that clearly shows that the costs were related to the bid preparation or protest costs. Accordingly, GAO recommended that the protester be paid in the amount of $679 for legal fees, $11,149 for bid preparation expenses and $2,405 for protest costs for a total of $14,233. View Decision Matter of: Tri Tool, Inc.--Entitlement to Costs File: B-265649.4 Date: September 9, 1997 DIGEST Attorneys DECISION This Office has been requested by the parties to recommend the amount that the Department of Justice should pay Tri Tool, Inc. for the costs of preparing its bid under invitation for bids (IFB) No. 1PI-B-1498-95 and for the cost of filing and pursuing its sustained protest, Tri Tool, Inc., B-265649.2, Jan. 22, 1996, 96-1 CPD Para. 14. The IFB covered the acquisition of pipe cutting components to be assembled by Federal Prison Industries, Inc., Department of Justice, for the Department of the Army. BACKGROUND Our Office sustained Tri Tool's protest against the award of a contract to E.H. Wachs Company because the protester's low bid was rejected for failure to meet salient characteristics which were not set forth in the IFB. Based on status advice provided by the agency, our decision recommended termination of Wachs's contract, resolicitation of the requirements under revised specifications, and reimbursement of Tri Tool's costs of filing and pursuing its protest. Because we were later informed by the agency that its earlier advice was in error and that performance had, in fact, been completed prior to the issuance of our initial decision, we modified the recommended remedy to include bid preparation costs. Tri Tool, Inc.--Modification of Remedy, B-265649.3, Oct. 9, 1996, 96-2 CPD Para. 139 at 2. The parties have exchanged correspondence concerning Tri Tool's claim and report that they are unable to reach an agreement regarding the amount to which the protester is entitled. Tri Tool claims a total of $44,176, broken down as follows: legal fees of $679; lost anticipated profits of $21,890; bid preparation costs of $17,495; and bid protest costs of $4,112. The agency has accepted without question the claimed $679 for legal fees and has completely disallowed the claim for anticipated profits. Further, the agency has adjusted the claimed costs for bid preparation and filing and pursuing the protest downward from $17,495 to $6,186 and $4,112 to $2,357, respectively. As a result of its analysis, the Department of Justice reports that it is prepared to pay Tri Tool $9,222. As discussed below, we recommend that Justice reimburse Tri Tool a total of $14,233. LEGAL FEES AND ANTICIPATED PROFITS In light of the agreement between the parties regarding the protester's documented legal fees, we need not discuss that aspect of the claim further. With respect to the $21,890 claim for anticipated profits, the agency correctly disallowed it entirely because lost anticipated profits may not be recovered as part of protest costs, even in the presence of wrongful agency action. Gulf Elec. Constr. Co., Inc.--Claim for Costs, B-235635.2, Jan. 5, 1990, 90-1 CPD Para. 19 at 2. BID PREPARATION COSTS With respect to bid preparation costs, Tri Tool claimed 186.0 burdened labor hours for eight individuals in engineering, sales and management capacities (with the amount claimed for each position reflecting undisputed burdened rates), as follows: Position Hours Claimed Total Amount Claimed Engineer 1 43.0 $ 2,566 Engineer 2 13.5 $ 1,258 Engineer 3 5.5 $ 307 (not in dispute) Sales 1 86.0 $10,728 Sales 2 10.0 $ 524 (not in dispute) Manager 1 20.0 $ 1,169 Manager 2 6.0 $ 735 Manager 3 2.0 $ 208 Total 186.0 $17,495 In support of the number of hours claimed, the protester submitted a "Chronology of Events," indicating the date various tasks were performed, the nature of the tasks, and the number of hours spent performing the tasks for each employee position. A protester seeking recovery of its bid preparation costs must submit sufficient evidence to support its claim that those costs were incurred and are properly attributable to bid preparation. The amount claimed may be recovered to the extent it is adequately documented and reasonable. See Stocker & Yale, Inc.--Claim for Costs, 72 Comp.Gen. 193, 196 (1993), 93-1 CPD Para. 387 at 4. With respect to Engineer 1, the agency reduced the number of hours claimed from 43.0 to 29.0 because the chronology showed that 14 hours represented activities performed prior to the issuance of the solicitation.