The sun is setting on claims for recovery of bid protest costs

Vendor petitions that seek reimbursement for the costs of waging successful General
Services Administration Board of Contract Appeals protests soon will become a thing of the
past.


But in the meantime, some protesting bidders are trying to claim the last pennies
available before the sun sets on the board's information technology jurisdiction this
summer.


A recent vendor filing followed a successful protest of an Air Force PC procurement and
asked GSBCA to approve an astronomical cost recovery petition. Because the board awarded
more than $1 million for protest support services in a case a few years back, the
protester must have figured that it would be reimbursed any documented protest costs.


This go-for-broke approach might seem wise. But when the stated costs are unusually
high, the board tends to review the petition carefully. To arrive at a decision, GSBCA
will evaluate cost recovery petitions stemming from protests of similar breadth and
complexity. In this case, the board awarded only half of the amount sought.


An interesting note: The service agreed with the amount claimed by the protesters. A
filing of such agreement does not dispose of the matter, in the board's opinion. Statute
entrusts the responsibility to make determinations of cost entitlement solely to GSBCA.


Documentation is, of course, an important issue in justifying costs. Though a
successful protester of a Defense Logistics Agency procurement was able to provide time
sheets for support staff, it could not provide similar data for company executives--too
bad for companies whose executives don't bother filling out time sheets. The board denied
recovery of all the costs claimed.


A successful protest does not in itself constitute grounds for protest cost recovery.
First, the case must show that the agency violated a law or regulation.


For example, the Federal Aviation Administration recently canceled a sole-source
procurement when a protest was lodged by an existing contractor already providing the
sought-after products. The board denied the subsequent claim for reimbursement of costs
incurred in the protest because no wrongdoing was found.


With the board losing jurisdiction and protest decisions at the General Accounting
Office tending to favor agencies, there won't be much opportunity for cost recovery in the
new bid protest scheme. Some might even argue that there won't be much protest cost to
warrant concern.


Bob Deller is director of market research for Global Systems & Strategies in
Potomac, MD.



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