BNUMBER: B-277572.8
DATE: September 9, 1998
TITLE: HG Properties A, L.P.--Costs, B-277572.8, September 9, 1998
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Matter of:HG Properties A, L.P.--Costs
File:B-277572.8
Date:September 9, 1998
Thomas W. Rochford, TRS Design & Consulting Services, for the
protester.
Marion T. Cordova, Esq., Department of Agriculture, for the agency.
Guy R. Pietrovito, Esq., and James Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Claim for costs of filing and pursuing a protest at the General
Accounting Office is denied where the protester failed to file with
the contracting agency an adequately detailed claim within 60 working
days after the protester received a copy of the decision awarding
protest costs.
DECISION
HG Properties A, L.P. requests that we recommend the amount it should
be reimbursed by the Forest Service, Department of Agriculture, for
filing and pursuing its protest in HG Properties A, L.P., B-277572 et
al., Oct. 29, 1997, 97-2 CPD para. 123.
In that decision, we sustained HG's protest of the award of a lease
for office space in Libby, Montana, because the Forest Service
unreasonably had determined that the awardee's proposed layout
satisfied all solicitation requirements and was entitled to a high
evaluation score, where the layout was inconsistent with the
solicitation requirement that the computer room be located away from
areas housing microwave equipment and radio transmitters. Id. at 5.
We dismissed or denied numerous other protest allegations, including
other challenges to the agency's evaluation of offers. We also
recommended that HG be reimbursed for its costs of filing and pursuing
the protest, "limited to the contention as to which we sustain[ed] the
protest." Id. at 6-7.
On December 19, 1997, HG submitted a certified claim to the Forest
Service within 60 days of receipt of our decision seeking
reimbursement of $78,674.71 for its costs of filing and pursuing the
protest. The only supporting information provided with the claim was
a list of individuals and firms, which the protester asserted provided
work on the protest, and a total dollar amount requested for each
individual and firm. It did not identify the work performed by these
individuals or firms or the timeframe within which the work was
performed.
On December 22, the Forest Service responded to HG's claim by
requesting that HG provide a breakdown of the costs requested,
including the amount and purposes of the time expended by each
individual and identifying how the claimed costs related to the issue
upon which we sustained the protest. On January 27, 1998, after not
receiving any response from HG, the Forest Service denied the claim,
noting that HG had failed to submit an adequately detailed claim to
the agency within 60 days of receipt of the decision as required by
our Bid Protest Regulations.
On February 6, HG responded to the Forest Service by providing
information identifying for each individual the total hourly effort,
hourly rate, and generally describing on a monthly basis the work done
by each individual; HG now claimed $76,796.50.[1] HG also stated that
it did not segregate its protest costs to the issue upon which we
sustained the protest, noting that "the scope of the protest decision
(USFS's improper evaluation of offers) was not separable from the
overall protest work. It is impossible to pick one or two issues from
any other issue in terms of the time and cost associated with the
protest." The Forest Service did not reconsider its denial of HG's
claim, and HG requested that we determine the amount it should be
reimbursed. The agency objects to HG's claim for costs, asserting
that the protester failed to file a timely, adequately supported
claim, as required, and failed to segregate costs to the issue upon
which we recommended reimbursement of the protest costs.
Our Bid Protest Regulations, 4 C.F.R. sec. 21.8(f)(1) (1998), provide
that when we find that an agency should reimburse a protester for its
appropriate costs:
[t]he protester shall file its claim for costs, detailing and
certifying the time expended and costs incurred, with the
contracting agency within 60 days after receipt of GAO's
recommendation that the agency pay the protester its costs.
Failure to file the claim within that time may result in
forfeiture of the protester's right to recover its costs.
Consistent with the intent of our Regulations to have protest matters
resolved efficiently and quickly, the 60-day timeframe for filing
claims with the contracting agency was specifically designed to avoid
the piecemeal presentation of claims and to prevent unwarranted delays
in resolving such claims. That timeframe affords protesters ample
opportunity to submit adequately substantiated, certified claims.
Test Sys. Assocs., Inc.--Claim for Costs, B-244007.7, May 3, 1993,
93-1 CPD para. 351 at 4. Failure to initially file an adequately
supported claim in a timely manner results in forfeiture of a
protester's right to recover costs, irrespective of whether the
parties may have continued to negotiate after the 60-day period
expired. Wind Gap Knitwear, Inc.--Claim for Costs, B-251411.2,
B-251413.2, Aug. 30, 1995, 95-2 CPD para. 94 at 3. Although we recognize
that the requirement for documentation may sometimes entail certain
practical difficulties, the claim for reimbursement of costs must, at
a minimum, identify the amount claimed for each individual expense,
the purpose for which that expense was incurred, and how the expense
relates to the protest. W.S. Spotswood & Sons, Inc.--Claim for Costs,
B-236713.3, July 19, 1990, 90-2 CPD para. 50 at 3.
Here, the record shows that HG failed to file a legally sufficient
cost claim within the time required. The claim initially submitted to
the Forest Service did not identify the purposes for which claimed
expenses were incurred or how the expenses related to the issue for
which we recommended the reimbursement of HG's protest costs. Despite
the Forest Service's request, HG failed to supplement its defective
claim by providing the required claim information within the 60-day
period, as required by our Bid Protest Regulations, 4 C.F.R. sec.
21.8(f)(1). Nor has HG offered any explanation justifying its failure
to timely file an adequately detailed claim.
In addition, HG's cost claim improperly requested reimbursement for
costs that were incurred in pursuit of protest allegations and issues
for which we did not recommend reimbursement. As noted above, our
recommendation that HG be reimbursed for the costs of filing and
pursuing its protest was limited to the issue on which we sustained
its protest; that is, we recommended that the Forest Service reimburse
HG's protest costs to the extent that they were incurred in pursuing
the issue that the agency unreasonably evaluated the awardee's
proposed layout vis-�-vis the requirement that the computer room be
located away from areas housing microwave equipment and radio
transmitters. HG admits that its claim did not attempt to segregate
these costs, and the information provided by HG is not sufficient to
allow the segregation of costs by protest issues or allegations.
While HG now argues that the reimbursement of its protest costs should
not be limited to the one issue on which we sustained its protest,
this is in effect a request for reconsideration of the decision that
recommended the reimbursement of its protest costs, which we will not
consider because our Bid Protest Regulations require that requests for
reconsideration of a protest decision must be filed within 10 days
after the basis for reconsideration is known or should have been
known. 4 C.F.R. sec. 21.14(b).
The claim for costs is denied.
Comptroller General
of the United States
1. HG did not explain the discrepancy between the amount originally
requested and that later documented.