Priority One Services, Inc.--Costs, B-288836.5, November 8, 2002

B-288836.5 Nov 08, 2002 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Priority One Services, Inc. protests the denial by the National Institute of Allergy and Infectious Diseases (NIAID), National Institutes of Health (NIH), Department of Health & Human Services (HHS), of its claim for the costs of filing and pursuing its protest, under request for proposals (RFP) No. NIAID-DIR-01-56, a small business set-aside, for the care, use, and the humane treatment of laboratory animals and technical skills related to the scientific study and manipulation of animals and animal products. We deny the request that we recommend reimbursement of the firm's protest costs. View Decision B-288836.5, Priority One Services, Inc.--Costs, November 8, 2002 Decision Matter of: Priority One Services, Inc.--Costs File: B-288836.5 Date: November 8, 2002 Kevin P. Mullen, Esq., Piper Rudnick, for the protester. Michael Colvin, Department of Health & Human Services, for the agency. Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Request for reimbursement of costs of filing and pursuing a protest, which was recommended in a decision sustaining a protest of a procurement set-aside for small businesses, is denied where the protester was ineligible for award under the protested procurement because it was not a small business and the protester did not comply with the 13 C.F.R. 121.1009(g)(3) (2001) requirement that it immediately notify responsible officials of an adverse size determination under the same size standard as included in the protested procurement. DECISION Priority One Services, Inc. protests the denial by the National Institute of Allergy and Infectious Diseases (NIAID), National Institutes of Health (NIH), Department of Health & Human Services (HHS), of its claim for the costs of filing and pursuing its protest, under request for proposals (RFP) No. NIAID-DIR-01-56, a small business set-aside, for the care, use, and the humane treatment of laboratory animals and technical skills related to the scientific study and manipulation of animals and animal products. We deny the request that we recommend reimbursement of the firm's protest costs. This claim arose from our decision in Priority One Servs., Inc., B-288836, B'288836.2, Dec. 17, 2001, 2002 CPD 79, in which we sustained Priority One's protest against an award to SoBran, Incorporated. We sustained the protest because the agency failed to perform a proper cost-realism evaluation and conducted improper discussions with SoBran. We recommended that the agency reopen discussions, request revised proposals, reevaluate proposals, and make a new award selection determination. We also recommended that Priority One be reimbursed the costs of filing and pursuing its protest, including reasonable attorneys' fees. HHS argues that because Priority One has been found by the Small Business Administration (SBA) to be other than a small business, and thus was ineligible for award under the protested procurement, it was not an interested party under our Bid Protest Regulations and should not be reimbursed its costs of filing and pursuing the protest. The protester argues that it was a small business when it filed its protest and there is no reason to modify the recommendation made in our initial decision that these costs be reimbursed. In order to better understand the parties' respective positions, some background facts are necessary. On April 20, 2001, Priority One certified that it was a small business under the protested NIAID solicitation's $20 million size standard. Meanwhile, on June 21, Priority One submitted a proposal in response to another NIH solicitation containing the same size standard, where it also certified that it was a small business. On August 28, Priority One was advised of the award to SoBran under the protested NIAID solicitation and on September 7 protested that award to our Office. On October 1, Priority One received the award under the other NIH solicitation. A size protest of this award was filed with the SBA on October 2. On October 9, HHS submitted its report on the protested NIAID procurement, and on October 19 Priority One filed its comments on the report and a supplemental protest. On October 23, the SBA Area Office found that Priority One was not a small business concern for the other NIH procurement. Priority One did not bring this adverse size determination to the attention of the NIAID contracting officer. On November 3, HHS submitted its report on the supplemental protest, and on November 12 Priority One submitted its comments on that report. On November 13, Priority One filed an appeal of the SBA Area Office's size determination with the SBA's Office of Hearings and Appeals (OHA). As indicated, we sustained the protest on December 17.