TITLE:  Keeton Corrections, Inc.ÂCosts, B-293348.3, October 25, 2004
BNUMBER:  B-293348.3
DATE:  October 25, 2004
**********************************************************************
   Decision

   Matter of:   Keeton Corrections, Inc.*Costs

   File:            B-293348.3

   Date:              October 25, 2004

   John G. DeGooyer, Esq., and David T. Ralston, Esq., Foley & Lardner, for
the protester.

   Tracey L. Printer, Esq., Federal Bureau of Prisons, for the agency.

   Henry J. Gorczycki, Esq., and David A. Ashen, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Request that GAO recommend the amount in protest costs the successful
protester should be allowed to recover is denied where the claim was filed
with the contracting agency more than 60 days after protester's counsel
received a protected copy of the protest decision; protester's filing of a
request for reconsideration did not toll the period for filing its claim,
and there is no evidence of a compelling reason beyond the control of the
protester which prevented the protester from timely filing the claim.

   DECISION

   Keeton Corrections, Inc. requests that we recommend the amount it should
be allowed to recover from the Department of Justice, Federal Bureau of
Prisons (BOP), for filing and pursuing its protest in Keeton Corrections,
Inc., B-293348, Mar.A 4, 2004, 2004 CPD PA __.  In that decision, we
sustained Keeton's protest against BOP's award of a contract to provide a
residential Comprehensive Sanction Center in Nashville, Tennessee, and we
recommended, among other things, that BOP reimburse the protester's cost
of filing and pursuing its protest.  In this regard, citing the
requirement in our Bid Protest Regulation, 4 C.F.R. SA 21.8(f)(1) (2004),
our decision directed as follows:  "The protester should submit its
certified claim for such costs, detailing the time expended and costs
incurred, directly with the agency within 60 days of receiving this
decision."  Keeton Corrections, Inc., supra, at 12.

   We dismiss the request because the protester did not file its certified
claim for costs within 60 days of receipt of our decision.

   On March 4, 2004, counsel for Keeton received a protected copy of our
decision.  The decision sustained Keeton's protest solely on the basis
that the source selection decision was unreasonable because, under the
most important evaluation factor of past performance, the source selection
authority relied upon inaccurate information about the protester's and
awardee's records of past performance in selecting the awardee's
higher-priced proposal.  Keeton Corrections, Inc., supra, at 6-8.  Our
decision also considered, and rejected, the protester's other protest
arguments, including its assertion that the agency's consideration of
evidence of ownership of facilities was inconsistent with the stated
evaluation criterion and thus improper.  Id. at 11.

   On March 12, Keeton requested reconsideration of our decision solely on
the basis of the propriety of considering ownership of facilities as an
evaluation criterion.  On March 31, our Office denied the request for
reconsideration on the basis that the protester had made precisely the
same argument in its protest as it was making in its request for
reconsideration; our Office had considered the argument in the protest;
and the mere repetition of the same argument did not provide a basis for
Keeton to prevail in its request for reconsideration.  Keeton Corrections,
Inc.a**a**Recon., Ba**293348.2, Mar. 31, 2004.

   On May 26, 83 days after receiving our decision sustaining its protest,
Keeton submitted its claim for costs to BOP.  BOP denied Keeton's claim on
the basis that the protester had failed to submit its claim within the
60-day period established by regulation, and this claim for costs
followed.

   Keeton asserts that its request for reconsideration tolled the 60-day
period for filing its claim that commenced upon its receipt of our initial
decision.  According to Keeton, the 60-day period began anew with our
Office's decision on the request for reconsideration.

   Our Bid Protest Regulations require that in the event that our Office
recommends that an agency should reimburse a protester for the costs of
filing, 

   [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.

   4 C.F.R. SA 21.8(f)(1).  Consistent with the intent of our Regulations to
have protest matters resolved efficiently and quickly, the 60-day
timeframe for filling 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.  A protester's failure to initially file an adequately supported
claim in

   a timely manner results in forfeiture of a protester's right to recover
costs.  Aalco Forwarding, Inc., et al.a**a**Costs, B-277241.30, July 30,
1999, 99-2 CPD PA 36 at 4; HG Properties A. L.P., B-277572.8, Sept. 9,
1998, 98-2 CPD PA 62 at 2.

   Neither our regulations nor our prior decisions recognize an exception to
the 60-day filing requirement based simply on the fact of a request for
reconsideration having been filed.  While our Office has indicated that we
may consider an untimely claim for good cause, we have construed the term
to mean that some compelling reason beyond the control of the protester
prevented the protester from timely filing the claim.  Continental
Maritime of San Diego, Inc.a**a**Costs, B-249858.5, Dec. 17, 1993, 93-2
CPD PA 323 at 2; Test Sys. Assocs., Inc.a**a**Costs, May 3, 1993, 93-1 CPD
P 351 at 2.  Here, there is no evidence that Keeton could not have filed
within the required time period a documented, substantiated claim for the
costs of filing and pursuing the protest that we had sustained.  Not only
did Keeton's request for reconsideration not prevent the protester from
timely filing its claim, the request for reconsideration did not even call
into question the basis upon which we sustained the protest and thus our
recommendation of protest costs.  Moreover, we note that when Keeton
received our decision denying its request for reconsideration on March 31,
Keeton still had 33A days within which to file its cost claim.  Keeton has
offered no explanation as to why it did not have sufficient time after
receiving our decision denying its request for reconsideration to complete
and timely file its claim with the agency.  In these circumstances, we
decline to recommend that the agency pay the claimed costs.

   Anthony H. Gamboa

   General Counsel