Tidewater Marine, Inc.--Request for Costs

B-270602.3 Aug 21, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights General Accounting Office will not recommend that protester recover costs of filing and pursuing its protest where the record shows that corrective action was taken 8 calendar days after the key issue was squarely put in dispute. Therefore was not unduly delayed. Tidewater maintains that because the protest was "clearly meritorious and the [agency] took significant corrective action. The challenged RFP (which was issued on October 27. The principal difference between these proposal formats is the pricing method. Provides that the contractor will be separately reimbursed for all port charges and fuel expenses incurred during performance. Fuel consumption was to be a separately reimbursable expense and was not to be included in offerors' proposed fixed daily rates. View Decision Matter of: Tidewater Marine, Inc. -- Request for Costs File: B-270602.3 Date: August 21, 1996 General Accounting Office will not recommend that protester recover costs of filing and pursuing its protest where the record shows that corrective action was taken 8 calendar days after the key issue was squarely put in dispute, and therefore was not unduly delayed. Attorneys DECISION Tidewater Marine, Inc. requests that we recommend that it be reimbursed the costs of filing and pursuing its protest challenging the terms of request for proposals (RFP) No. N62387-96-R-1303, issued by the Department of the Navy, Military Sealift Command (MSC), for tugboat towing and related harbor services to support various live fire naval exercises in Mayport, Florida. Tidewater maintains that because the protest was "clearly meritorious and the [agency] took significant corrective action," our Office should recommend the award of all protest costs, including attorneys' fees and consultant fees, pursuant to 4 C.F.R. Sec. 21.8(e) (1996), which provides that "[i]f the contracting agency decides to take corrective action in response to a protest" our Office may recommend the reimbursement of such expenses by the contracting agency. We deny the request. The challenged RFP (which was issued on October 27, 1995) permitted offerors to submit their proposals using either of two standard proposal packets, referred to as TUGWORK or TUGTIME. The principal difference between these proposal formats is the pricing method. Whereas the TUGWORK proposal format requires offerors to propose three hourly rates for performing the required tugboat services, and to include all charges and fuel expenses in each of the proposed hourly rates, the TUGTIME proposal requires offerors to propose three daily rates, and provides that the contractor will be separately reimbursed for all port charges and fuel expenses incurred during performance. On November 27 -- 30 minutes prior to the closing time for receipt of initial proposals -- Tidewater filed its first protest at this Office, challenging numerous terms in the RFP as defective. On November 28, MSC contacted the protester's counsel to pursue settlement negotiations; on November 29, pursuant to the prior day's telephone discussions, MSC issued a letter to the protester's counsel advising Tidewater that "the agency desires to discuss a compromise with a view towards securing withdrawal of the protest," and requesting a "list of specific remedial measures" from the protester to accomplish this goal. On December 1, because it did not receive any response to its request for a list of suggested remedies from the protester, MSC filed a motion at this Office requesting dismissal of Tidewater's protest under 4 C.F.R. Sec. 21.1(f) of our Bid Protest Regulations, which requires protests to state legally sufficient grounds of protest. On December 7, Tidewater responded to the request for dismissal with a statement of general opposition to the dismissal request, and a list of "SUGGESTIONS TO REMEDY SOLICITATION DEFECTS." We concluded that Tidewater's protest did in fact articulate legally sufficient grounds of protest. In light of the protester's proffered list of suggested remedies, and the agency's stated desire to accommodate the protester's concerns and negotiate a settlement, we placed the case on an accelerated resolution schedule, see 4 C.F.R. Sec. 21.10(e), and by means of a December 8 telephone conference, urged the parties to pursue settlement negotiations, and to apprise our Office of any progress within 2 weeks. As a result of these negotiations, the parties settled all protest grounds except for Tidewater's challenge to the solicitation's TUGTIME fuel consumption rate provision. As noted above, under the TUGTIME proposal, fuel consumption was to be a separately reimbursable expense and was not to be included in offerors' proposed fixed daily rates.