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Motion to Strike Application for Bid and Proposal Costs Denied

The government's motion to strike a successful protester's application for bid preparation and proposal costs was denied by the Court of Federal Claims, because the judgment awarding the costs was not a final entry under CFC Rule 58, and the CFC's grant of injunctive relief in a separate protest action did not render the award duplicitous or otherwise improper. The dispute arose out of a long-term health services project consisting of several distinct but similar requests for proposals. The protester had prevailed in two different protest actions. One of the actions was a post-award protest in which the protester was awarded its bid and proposal preparation costs and limited injunctive relief. The other action was a pre-award protest in which the protester was awarded injunctive relief and reinstated into the competition. When the protester submitted an application for its bid and proposal preparation costs arising out of the first, post-award protest, the government, rather than challenging the amount or type of costs claimed, moved to strike the protester's application as "untimely and unsupported by the Rules of the Court of Federal Claims." According to the government, the protester's cost application should not be considered because the post-award protest was "closed" pursuant to CFC Rule 58, "Entry of Judgment." The government also argued if the application were granted it would constitute an improper "double recovery" because the protester had already obtained injunctive relief in the other, pre-award protest action.
Separate Protest
However, the entry of judgment in the post-award protest was not final because the CFC had not determined or specified a means of determining the amount of the damages award. Determination of those damages was the very purpose of the protester's cost application. Even if the judgment had been final, the CFC could have amended the judgment pursuant to CFC Rule 60(b). The government's "double-recovery" argument was rejected because the injunctive relief obtained by the protester in the pre-award protest had been granted based on a different RFP and in a separate protest action, and only limited injunctive relief was granted in the post-award protest. Moreover, the CFC has broad discretion under the Tucker Act to grant any relief it deems proper, and if appropriate it may combine injunctive relief with bid preparation and proposal costs. Although the CFC denied the government's motion to strike the protester's application for costs, the court provided the government a second opportunity to respond to the substantive cost figures stated in the protester's application. (The CNA Corp. v. U.S., FedCl, 52 CCF ¶78,981)

(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )

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