Boines Construction & Equipment Co., Inc.--Costs, B-279575.4, April 5, 2000

B-279575.4 Apr 05, 2000 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Where protester fails to demonstrate that hourly rates claimed for its employees are based upon actual rates of compensation plus overhead and fringe benefits. Its claim for reimbursement of the time spent by its employees in preparing its bid is denied. 3. GAO recommends reimbursement of protester's legal expenses associated with pursuit of its protest where it demonstrates that it is ultimately responsible for payment of the attorneys' fees. We found that Pierce's low bid was late and thus should not have been considered. If Boines' bid was otherwise responsive and Boines was found responsible. In the event that termination of the contract with Pierce was not feasible due to the extent of contract performance. View Decision Matter of: Boines Construction & Equipment Co., Inc.--Costs File: B-279575.4 Date: April 5, 2000 DIGEST Attorneys DECISION Boines Construction & Equipment Company, Inc. requests that we recommend that it recover $15,246.78 from the Department of Housing and Urban Development (HUD) for bid preparation costs under invitation for bids (IFB) No. B-FTW-00041, and for the costs of filing and pursuing its protest in Boines Constr. & Equip. Co., Inc., B-279575, June 29, 1998, 98-1 CPD Para. 175, recon. den., Department of Hous. and Urban Dev.--Recon., B-279575.2, Nov. 4, 1998, 98-2 CPD Para. 105. We recommend that Boines recover $4,404.12. In Boines Constr. & Equip. Co., Inc., we sustained Boines' protest of the award of a contract to Pierce Foundations, Inc. for the demolition of vacant buildings and related site work at the Hillcrest Home Apartments public housing project in Larose, Raceland, and Thibodaux, Louisiana. We found that Pierce's low bid was late and thus should not have been considered. We recommended that HUD terminate its contract with Pierce, if feasible, and award to Boines as the next low bidder, if Boines' bid was otherwise responsive and Boines was found responsible; in the event that termination of the contract with Pierce was not feasible due to the extent of contract performance, we recommended that HUD instead pay Boines its bid preparation costs. We also recommended that HUD pay Boines the costs of filing and pursuing its protest, including reasonable attorneys' fees. On July 10, HUD requested reconsideration of our decision. By letter dated August 27, Boines requested that we modify our recommendation to include payment of lost profits. By letter dated August 28, the agency notified us that it had suspended action on our recommendation until its request for reconsideration had been decided, and that due to the status of performance (the demolition work by Pierce being approximately 90 percent complete), the only possible corrective action in the event its request for reconsideration were denied (and our decision sustaining Boines' protest affirmed) would be payment of the protester's bid preparation and protest costs. By separate decisions dated November 4, Department of Hous. and Urban Dev.--Recon., supra, and Boines Constr. & Equip. Co., Inc.--Recon., B-279575.3, Nov. 4, 1998, we denied HUD's request for reconsideration and Boines' request for modification of our recommendation. Boines submitted a certified claim for costs to the agency on January 4, 1999. Boines claimed bid preparation costs totaling $11,369.55 ($10,085.00 for 217 hours of labor by five employees, $221.27 for miscellaneous expenses such as blueprints and copying, and $1,063.28 for travel) and attorney's fees of $3,828.35. Boines supported its bid preparation cost claim with schedules summarizing by date and employee name, the number of hours worked, the tasks performed, and the hourly rate of compensation. Three of the five individuals listed in the schedule (for whom a total of 105 hours of labor were claimed) were employees of Hamp's Construction, Boines' intended subcontractor, rather than Boines itself. In an affidavit accompanying the claim, the presidents of Boines and Hamp's explained that the two companies had collaborated in preparing the bid. /1/ The presidents of Boines and Hamp's further attested that the hourly rates that they were claiming for their employees were "the usual and customary rates utilized by them in this area, and [were] commensurate with the rates utilized by these companies in bidding upon and performing Section 8-A work in this area." Id. at Para. 6. By letter dated January 26, HUD asked Boines to furnish it with evidence that the hours listed for each of the individuals on its claim were actually expended on this project. Boines responded by letter dated February 25, noting that since no job was ongoing at the time the bid was prepared, no project logs or daily logs or daily reports had been kept in the course of preparing the bid.