Wednesday, December 16, 2015

Recovering Bid Protest Costs Requires Adequate Supporting Documentation

GAO bid protest regulations provide for reimbursement, in appropriate circumstances, of reasonable proposal preparation and protest pursuit costs. Generally, in order to recover proposal preparation and protest pursuit costs, the protestor must be the prevailing party. There have been a few exceptions based on extraordinary circumstances but essentially, losing a bid protest is not going to result in the Government reimbursing the cost of the protest.

In a recent bid protest, the GAO laid out its expectations concerning the adequacy of support for claimed bid protest costs. Claims must include:

  1. Evidence sufficient to support its claim
  2. The costs were incurred and are properly attributable to filing and pursuing the protest
  3. At a minimum, claims for reimbursement must identify and support the amounts claimed for each individual expense (including cost data to support the calculation of claimed hourly rates)
  4. The purpose for which that expense was incurred
  5. How the expense relates to the protest.

This level of detailed support can be difficult to compile but the GAO has set a high standard so there's no getting around it. The burden is on the protestor to submit sufficient evidence to support the claim. And, the burden is not met by general, inadequately-supported statements that particular costs have been incurred. Failure to file an adequately-supported claim in a timely manner will result in the loss of the protester's right to recover costs.

In the case at hand, (Ryan P. Slaughter - Costs, Case No. B-411168.4), the GAO stated that while it had no doubt that the protester spent time in preparing the protest and responding to the agency report, it found that the protester did not provide adequate documentation to support the claim. Specifically, the hours claimed were based on desk calendar notations and the protestor did not provide any support for its calculations of hourly rates.

In this case, the protester lost the opportunity to recover some of its costs relating to filing a bid protest. It didn't have to end that way. It may not have been a simple matter to compile supporting data bur the potential rewards was certainly worth the cost.

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