Department of the Navy--Modification of Remedy, B-284080.3, May 24, 2000

B-284080.3 May 24, 2000 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Because the agency acted in good faith reliance upon information given it by another agency is denied. Is not intended to penalize the agency. Instead exists to relieve protesters of the financial burden of vindicating the public interests which Congress was seeking to promote when it passed the Competition in Contracting Act of 1984. Since TEAC's Federal Supply Schedule (FSS) contract with the General Services Administration (GSA) was not in effect at the time the Navy ordered the recorder systems. We held that the order was an improper sole-source award. N00383-99-F-6019) to TEAC for 238 recorder systems was issued on September 23. DRS argued that GSA's FSS contract with TEAC had expired and was not available for use by the Navy. View Decision Matter of: Department of the Navy--Modification of Remedy File: B-284080.3 Date: May 24, 2000 DIGEST Attorneys DECISION The Department of the Navy requests that our Office modify the recommendation in our decision DRS Precision Echo, Inc., B-284080, B-284080.2, Feb. 14, 2000, 2000 CPD Para. 26, in which we sustained DRS's protest of the issuance of a purchase order by the Navy to TEAC America, Inc. for 238 cockpit video recorder systems for use on F/A-18 aircraft. Since TEAC's Federal Supply Schedule (FSS) contract with the General Services Administration (GSA) was not in effect at the time the Navy ordered the recorder systems, we held that the order was an improper sole-source award. The Navy does not ask that our Office reconsider the decision to sustain the protest, but requests that we delete the recommendation that DRS be reimbursed the cost of pursuing its protest, including attorneys' fees. Alternatively, the Navy asks that we limit any reimbursement of protest costs to those incurred prior to January 7, 2000, when GSA apparently offered to reimburse DRS for the attorneys' fees incurred in pursuing its protest up to that date. We deny the request. As set forth in our prior decision, the Navy purchase order (No. N00383-99-F-6019) to TEAC for 238 recorder systems was issued on September 23, 1999, for a total price of $2,021,096. In an October 4 agency-level protest, and in a subsequent protest to our Office, DRS argued that GSA's FSS contract with TEAC had expired and was not available for use by the Navy. The Navy denied the agency-level protest and defended its actions in the protest here. On January 19, 2000, in response to a request for information from our Office, GSA conceded that when the Navy placed its order, TEAC's contract had expired, and that no contract with TEAC was in place until GSA's contracting officer made a subsequent award /1/ on December 2, 1999. On February 1, the Navy also conceded that the GSA schedule contract had expired at the time the order was placed, but urged our Office not to recommend payment of DRS's protest costs because the Navy proceeded in good faith and was misled by GSA representatives who indicated that TEAC's FSS contract remained in place. DRS Precision Echo, Inc., supra, at 2-3. On February 14, our Office sustained DRS's protest and recommended that the company be reimbursed its protest costs. Our decision acknowledged that the Navy had apparently acted in good faith when it placed its purchase order in September, but suggested that there was evidence that should have led the Navy to suspect that GSA had not extended TEAC's schedule contract before it expired. Thus, we concluded that the Navy's actions had contributed to prolonging the dispute and increasing the cost to the protester, and we recommended that the Navy, not DRS, bear the cost of filing and pursuing the protest. Id. at 3-4. In requesting that our Office revise the recommendation that the agency pay protest costs, the Navy disputes our conclusion that it had a basis for suspecting that GSA had not extended TEAC's contract before it expired. The Navy disputes our conclusion out of an apparent belief that our award of protest costs was intended to punish the agency. Specifically, the Navy points out that GSA's representatives continued to assure representatives of the Navy that the contract was still valid, and argues that the Navy reasonably relied upon those assurances. The Navy's request raises two issues: first, whether DRS should be reimbursed its costs at all; and second, whether the Navy should be required to reimburse DRS's protest costs. The authority of the General Accounting Office (GAO) to recommend reimbursement of the costs of filing and pursuing protests, including reasonable attorneys' fees, was established in the Competition in Contracting Act of 1984 (CICA), 31 U.S.C. Sec. 3554(c)(1)(A) (1994). The underlying purpose of CICA's provisions relating to bid protest costs is to relieve protesters of the financial burden of vindicating the public interest which Congress seeks to promote.