CNA Industrial Engineering, Inc.--Costs, B-271034.2, November

B-271034.2 Nov 20, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Costs of filing and pursuing a protest are not limited to costs associated with the sustained issue alone where it was not necessary to resolve the other issues raised by the protester in view of the fact that the General Accounting Office (GAO) recommended that the agency reopen discussions. GAO recommends that successful protester be reimbursed costs related to the time spent in pursuit of the protest by its own employee and its subcontractors' employees to the extent that such costs are reasonable. The protester is obligated to reimburse its subcontractors for employees' time. Hours charged by an employee of the successful protester's subcontractor as part of its claim for pursuing its protest are unreasonable where they exceed the time spent by the protester's attorney. View Decision Matter of: CNA Industrial Engineering, Inc.--Costs File: B-271034.2 Date: November 20, 1997 DIGEST Attorneys DECISION CNA Industrial Engineering, Inc. requests that our Office recommend the amount that it should be reimbursed by the United States Army Corps of Engineers for the costs of filing and pursuing its protest under request for proposals (RFP) No. DACA87-95-R-0092. The RFP was for installation and testing of an automated storage and retrieval system for use at the Brooke Army Medical Center, San Antonio, Texas, and for associated maintenance and training services. We sustained CNA's protest against the award to GeneSys, Inc. because GeneSys had no interface experience with the Army's information software system, the so-called TAMMIS system, as required by the RFP, and, therefore, the award to GeneSys amounted to an improper relaxation of the RFP's minimum requirements. [1] CNA initially submitted its claim for costs, totaling $72,682 directly to the Corps of Engineers. After an exchange of correspondence between the parties regarding, among other things, allowability of certain costs, severability of costs for issues that were sustained from those that were not, reasonableness of the hours claimed, and sufficiency of the evidence to support the claim, CNA revised its claim downward to a total of $62,732. [2] The Corps rejected the bulk of the claim and offered CNA partial reimbursement totaling $12,081. CNA rejected the agency's offer and submitted the claim to our Office. The Corps contends that CNA's entire claim should be rejected because the original protest was untimely. According to the Corps, CNA should have known that GeneSys did not have the required TAMMIS experience and therefore should have filed its initial protest on that basis within 14 days after CNA was notified on December 28, 1995, that the contract had been awarded to GeneSys. [3] The Corps asserts that CNA knew at that time that the TAMMIS system was deployed at just one site, the Madigan Army Medical Center, and that CNA, not GeneSys, had a contract with the Army at that site which would give it the required TAMMIS interface experience. As CNA waited until after it was debriefed by the Corps on February 1, 1996, to file its original protest in our Office, the Corps asserts that the original protest (filed on February 5) was untimely. The Corps's contention provides no reason to reject CNA's claim for the costs of pursuing its successful protest. The facts that the Corps now believes establish the untimeliness of CNA's protest--that CNA, by virtue of its one Army contract, must have known that it was the only firm with TAMMIS experience and that the awardee could not have the required experience--was known or should have been known to the Army at the time CNA filed its protest. We will not now, in the context of considering a claim for costs, consider arguments that could and should have been raised in the original protest. See Tony Western--Recon., B-241169.3, May 21, 1991, 91-1 CPD Para. 489 at 3. In addition to the TAMMIS interface experience issue, CNA protested that the Corps's evaluation of CNA's proposal was unreasonable because the Corps had downgraded its proposal regarding the proposed source site license, software maintenance, and temporary shelving. The Corps contends that CNA's reimbursement should be limited to the costs incurred in pursuing the TAMMIS interface experience issue that we sustained, but not the other issues. The Corps asserts that the other issues are severable because they were not sustained and because they concerned the evaluation of CNA's proposal, not whether GeneSys met the experience requirement. The Corps estimates that only about one-third of the total protest costs were related to the TAMMIS experience issue and, therefore, asserts that CNA's reimbursement should be limited to just one-third of the total allowable costs. As a general rule, we consider a successful protester entitled to costs incurred with respect to all issues pursued, not merely those upon which it prevails.