GAO Ordered

[BorderC]

When the GAO recommends that an agency reimburse protest costs and tells the protestor that they must submit a certified claim for costs, what exactly does "certifed" mean? Does that mean that the protestor has to certify all costs and submit the claim per FAR 33.207 (including the statement at paragraph c) or does GAO "certification" mean something entirely different?

Thanks.

[policyguy]

GAO has that information on the GAO website:

http://www.gao.gov/legal/bids/bibreg.html

[joel hoffman]

When the GAO recommends that an agency reimburse protest costs and tells the protestor that they must submit a certified claim for costs, what exactly does "certifed" mean? Does that mean that the protestor has to certify all costs and submit the claim per FAR 33.207 (including the statement at paragraph c) or does GAO "certification" mean something entirely different?

Thanks.

BorderC, In response to your question, I don't think that the protestor has to certify all costs and submit the claim per FAR 33.207 (including the statement at paragraph c). FAR Subpart 33.2 "...applies to all disputes with respect to contracting officer decisions on matters “arising under” or “relating to” a contract" (see 33.203 - "Applicability").

See paragraph (f)(1) under Bid Protest Regulation 21.8 "Remedies" at the link that policyguy provided above:

(f)(1) If GAO recommends that the agency pay the protester the costs of filing and pursuing the protest and/or of bid or proposal preparation, the protester and the agency shall attempt to reach agreement on the amount of costs. The protester shall file its claim for costs, detailing and certifying the time expended and costs incurred, with the 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.

If you are wondering about the consequences of a false certification, check with a lawyer - but I think that the False Claims and/or False Statements Acts may apply. I am not a lawyer.

[BorderC]

Thanks to both of you. I was starting to come to the same conclusion myself. If the "penalty" of the protestor not submitting a certified claim per the FAR is that the CO doesn't have to provide their final decision..... I'm not sure how that really would apply with the GAO who has already "recommended" that the agency pay. So, in the context, it doesn't really make sense. Just took me a couple of days to think about it.

Thanks to you both for taking the time to answer.

[wvanpup]

If the "penalty" of the protestor not submitting a certified claim per the FAR is that the CO doesn't have to provide their final decision..... I'm not sure how that really would apply with the GAO who has already "recommended" that the agency pay.

Are you referring to a certified claim per FAR Subpart 33.2, Disputes and Appeals? If so, why do you think that might apply? The "claim" is not pursuant to the Contract Disputes Act.

[joel hoffman]

Thanks to both of you. I was starting to come to the same conclusion myself. If the "penalty" of the protestor not submitting a certified claim per the FAR is that the CO doesn't have to provide their final decision..... I'm not sure how that really would apply with the GAO who has already "recommended" that the agency pay. So, in the context, it doesn't really make sense. Just took me a couple of days to think about it.

Thanks to you both for taking the time to answer.

BorderC, if the protestor doesn't submit a claim for its costs within 60 days of receipt of the GAO recommendation, it may forfeit it's right to reimbursement. of its costs. I don't think that there is a "contracting officer's decision" involved here.

[Guest Vern Edwards]

Are you referring to a certified claim per FAR Subpart 33.2, Disputes and Appeals?

The "certified claim" for protest costs or bid and proposal costs mentioned by GAO is not the certified claim required by the Contract Disputes Act and FAR 33.207.

By "claim" the GAO does not mean "claim" as used in the Contract Disputes Act, 41 USC 7101 et seq., or as defined by FAR 2.101 and 52.233-1. Those are claims "arising under or relating to a contract." Claims for protest and bid and proposal costs related to a bid protest do not "arise under or relate to" a contract. They are claims based on 31 USC 3554( c)(1), which says:

If the Comptroller General determines that a solicitation for a contract or a proposed award or the award of a contract does not comply with a statute or regulation, the Comptroller General may recommend that the Federal agency conducting the procurement pay to an appropriate interested party the costs of--

(A) filing and pursuing the protest, including reasonable attorneys' fees and consultant and expert witness fees; and

( B ) bid and proposal preparation.

The requirement for a certification does not appear in 31 USC 3554© or in the GAO's bid protest regulations. When the GAO says that the protester must submit a "certified claim" it simply means that the contractor must expressly assert that the amounts claimed accurately reflect the amounts incurred. I don't know of any prescribed language for the certification.

Neither 31 USC 3554( c) nor the GAO's regulations give the CO the authority to make the decision about whether to comply with the GAO's recommendation to pay protest or bid and proposal costs. The FAR does not give COs any express authority to make that decision, and the requirement in FAR 33.211 for a CO final decision does not apply. The statute and regulations say only that "the [Federal] agency" must decide. Who decides is left to the agency.

[BorderC]

Thanks all for all the information and citations. I REALLY appreciate the thorough responses because I was just told that I may have to go brief management on why it isn't treated as a Part 33 action.

[Guest Vern Edwards]

I hope it's not contracting management that you have to brief. They should already know!

[joel hoffman]

Thanks all for all the information and citations. I REALLY appreciate the thorough responses because I was just told that I may have to go brief management on why it isn't treated as a Part 33 action.

Sorry that I didn't make it clearer above I thought you would have gotten the point that a (Part 33.2) dispute relating to or arising under a contract is a claim by a CONTRACTOR. A PROPOSER isn't a government contractor. You didn't have a contract to claim under and the KO won't render a "Decision" .

Short briefing...