Aalco Forwarding, Inc., et al.--Costs, B-277241.30, July 30, 1999

B-277241.30 Jul 30, 1999 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Protesters' claim for costs is denied where the protesters failed to file a legally sufficient claim with the contracting agency within the time required and to diligently pursue the matter by responding to the agency's subsequent request for additional information only after the agency denied the claim 3 months after requesting the information. The RFP is for a pilot program that reengineers the Department of Defense's current interstate and international program for shipping and storing the personal property of its military service members and civilian employees. 27 of which were partially set-aside for exclusive small business participation (amounting to 12 percent of the traffic volume). View Decision Matter of: Aalco Forwarding, Inc., et al.--Costs File: B-277241.30 Date: July 30, 1999 DIGEST Attorneys DECISION Aalco Forwarding, Inc. and 56 other firms request that we recommend the amount they should be reimbursed by the Military Traffic Management Command (MTMC), Department of the Army, for filing and pursuing their protests in Aalco Forwarding, Inc., et al., B-277241.16, Mar. 11, 1998, 98-1 CPD Para. 75. /1/ In that decision, we sustained the protests by these and other protesters against the partial small business set-aside of request for proposals (RFP) No. DAMT01-97-R-3001. /2/ We deny the claim. The RFP is for a pilot program that reengineers the Department of Defense's current interstate and international program for shipping and storing the personal property of its military service members and civilian employees. As amended, the solicitation sought proposals to service 53 designated traffic channels (origin state-to-destination region), 27 of which were partially set-aside for exclusive small business participation (amounting to 12 percent of the traffic volume). The solicitation, as issued, was the subject of numerous protests by these and other protesters, as were subsequent amendments to the RFP. Among the protest allegations was the contention that the RFP's partial set-aside was not an economic production run or reasonable lot, as required, and that the solicitation was not properly divided into set-aside and non-set-aside portions and was otherwise ambiguous in this regard. On March 11, 1998, we sustained the protests of the RFP's partial set-aside. We found that the partial set-aside did not ensure an economic production run or reasonable lot of shipments for small business concerns, as required by Federal Acquisition Regulation (FAR) Sec. 19.502-3(b). Specifically, the set-aside did not meaningfully consider the impact of the relatively small number of shipments available on many of the set-aside channels or the significant obligations, such as committed daily capacity, imposed on small business contractors by the solicitation. We recommended that the agency reexamine its partial set-aside under the criteria of FAR Sec. 19.502-3, and make the appropriate determinations and adjustments. In sustaining the protests, we further recommended that the protesters be reimbursed the reasonable costs of filing and pursuing their protests, including reasonable attorneys' fees, allocable to the partial set-aside issue. /3/ On May 6, 1998, within 60 days of receipt of our decision, the protesters' attorneys submitted a certified claim to MTMC seeking reimbursement of $52,923.28 for the costs of filing and pursuing the protests, consisting of $51,787.14 in attorneys' fees and $1,136.14 in attorneys' out-of-pocket expenses (copies, postage, courier service, and faxes). The protesters' attorneys allocated the amount of their fees to the sustained protest issue on the basis of the percentage of pages of each submission (protests and comments) devoted to the small business set-aside issue. Specifically, in their letter, the attorneys identified the relevant pages from each submission, calculated the resulting percentage of each submission devoted to the small business set-aside issue, and applied that percentage to the total attorneys' fees incurred in preparing each submission. /4/ The attorneys did not allocate their claimed out-of-pocket expenses to the sustained protest issue. No other supporting information was provided. MTMC responded to the protesters' claim on August 18 by requesting that the protesters' attorneys furnish supporting information and explanations. Among other things, the agency requested a detailed breakdown of the attorneys' hours, as well as copies of billing statements and receipts for out-of-pocket expenses. MTMC denied the protesters' cost claim on November 23, noting that the protesters had failed to respond to the agency's August 18 request for additional substantiation of the claim.