________________________________________________ DISMISSED AS UNTIMELY FILED: September 17, 1993 ________________________________________________ GSBCA 11915-C(11736-P/11745-P) LITTON SYSTEMS, INC., Intervenor, v. DEPARTMENT OF TRANSPORTATION, and DEPARTMENT OF DEFENSE, Respondents. David V. Anthony, Michael W. Clancy, and Richard P. Rector of Pettit & Martin, Washington, DC, appearing for Intervenor. Richard J. McCarthy, John R. McCaw, Jr., and Anthony L. Washington, Office of the Chief Counsel, Federal Aviation Administration, Washington, DC, appearing for Respondent Department of Transportation. Roger B. Sabin and Captain Richard B. Wingate, Office of General Counsel, Defense Information Systems Agency, Arlington, VA, and Clifton M. Hasegawa, Virginia Farrier, and Douglas G. White, Defense Commercial Communications Office, Defense Information Systems Agency, Scott Air Force Base, IL, appearing for Respondent Department of Defense. Before Board Judges NEILL, HYATT, and WILLIAMS. HYATT, Board Judge. Pursuant to Rule 35, Litton Systems, Inc., an intervenor in the protests of Denro, Inc. and Westinghouse Electric Corporation, has moved for the recovery of proposal preparation costs that it alleges were wasted as a result of agency actions that the Board overturned in deciding those protests. Respondent, the Federal Aviation Administration (FAA),[foot #] 1 opposes Litton's application on two grounds: 1) the application was not timely filed under the Board's rules and 2) Litton, an intervenor supporting the FAA's position, is not a "prevailing party" under the Board's precedent. Because we find that the application was not timely filed, we do not address the substantive issue of whether an intervenor that supported the Government's position in the underlying protest is eligible to recover its wasted proposal preparation costs. Background On May 29, 1992, the Board granted the consolidated protests of Denro, Inc. and Westinghouse. These protests challenged the exclusion of these companies from the competitive range of an FAA procurement for voiceband switching boxes. As a result of the Government's initial determination that Denro and Westinghouse should be excluded from the competitive range of the procurement, the remaining competitor, Litton, had effectively been selected for award. Accordingly, Litton intervened in the protests in support of the Government's position. In its decision on the merits of the protests, the Board held, inter alia, that the operational capability demonstrations (OCDs) involving Denro and Westinghouse were improperly conducted and that, thereafter, their proposals were unfairly evaluated as to the ability of their products to meet the Government's requirements. Denro, Inc. v. Department of Transportation, GSBCA 11736-P, et al., 93-1 BCA 25,315, 1992 BPD 196. One of the options presented to the Government in the Board's decision was that of conducting another round of OCDs, which the Government ultimately elected to do. The Board's decision in Denro, Inc. was issued on May 29, 1992. Litton filed its cost motion on July 2, some 34 days after the Board's decision was provided to the parties. The motion was limited to a request for the recovery of proposal preparation costs associated with the operational capability demonstrations (OCDs) and the post-OCD discussion process to the extent Litton's efforts were wasted as a result of the Government's violations of law. Litton characterized its motion as "premature," noting that the costs claimed are approximate and that the actual amount of wasted costs would not be determinable until such time as the Government had selected a course of further action in the ----------- FOOTNOTE BEGINS --------- [foot #] 1 This procurement was conducted by the Defense Information Systems Agency, Defense Commercial Communications Office (DECCO), on behalf of the FAA, a component of the Department of Transportation. The FAA has conducted all proceedings pertinent to this cost case, however, and we thus refer to the FAA as the responding party throughout. ----------- FOOTNOTE ENDS ----------- procurement. Thus, the costs were not certified, and Litton reserved the right to supplement and update its motion as appropriate. Discussion The Board's Rule 35(b)[foot #] 2 sets forth the following procedure for the filing of a motion seeking an award of protest costs: Within 30 days after a decision sustaining a protest, an interested party may submit a motion, with supporting documentation and certification of accuracy, requesting the Board to issue an order requiring respondent to pay the costs described in paragraph (a) of this rule. Because Litton did not file its motion within the thirty-day period following issuance of the Board's decision sustaining the protests of Denro and Westinghouse, the FAA contends that its motion must be dismissed for lack of timeliness. Litton urges that the thirty-day time limit set forth in Rule 35 is not mandatory and should be waived by the Board in this case. The Board has previously held, in similar circumstances, that a cost motion that was not timely filed should be dismissed for that reason. Emulex Corp., GSBCA 9357-C(9259-P), 89-1 BCA 21,349, 1988 BPD 276. In Emulex, the successful protester filed a motion to recover costs several days after the expiration of the thirty-day period following issuance of the Board's decision. In that case, protester's counsel had misread the date of the decision and argued that the Government was not prejudiced by the error. The Board flatly rejected this contention, holding that the plain language of the rule sets a deadline and that that deadline must be strictly applied: We have in Rule 35(b), acting in accordance with statutory authority, set a time limit on the filing of motions for costs. This rule is clear; regardless of its caption or the intent of the drafters, the rule without doubt sets a limit of thirty days after a decision sustaining a protest in which to submit a motion for protest costs. Furthermore the rule is appropriate for and is specific to protest proceedings. In fairness to all parties in all actions before us, we adhere to the time limits which we have established. We will not enlarge the time for the filing of a motion for costs unless a party shows good cause for enlargement. Any other conclusion would foster disrespect for our rule regarding timeliness of cost motions. ----------- FOOTNOTE BEGINS --------- [foot #] 2 48 CFR 6101.35(b) (1992). ----------- FOOTNOTE ENDS ----------- 89-1 BCA at 107,625, 1988 BPD 276 at 4. Here, Litton merely states that in light of the Denro and Westinghouse filings, seeking proposal preparation costs, it filed essentially an "informational" motion intended to alert the Government that it has a claim.[foot #] 3 What is not explained, however, is why this informational filing could not have been filed within thirty days of issuance of the Board's decision, so as to comply with the rule's purpose of notifying the Government within that time frame of its potential liability. Although Litton points out that it could not, with the limited information available, provide a certified claim in that period, it does not demonstrate that it could not have filed a protective application, which it did only a few days later anyway. Cf. Trimble Navigation, Ltd. v. Department of Transportation, GSBCA 11692-P, 93-1 BCA 25,341, 1992 BPD 62 (filing of "protective" preaward protest is preferable to awaiting a debriefing in order to obtain further details to support protest). The obstacles cited by Litton as barriers to filing sooner -- that the Government had not yet selected a course of action, that the extent of costs incurred could not be calculated with certainty so as to permit their "certification," and that the decision, issued under protective order, was not yet available to the principals of Litton -- applied equally to the protesters.[foot #] 4 We note, however, that both protesters filed timely cost applications and neither of these parties was in any better posture to ascertain what costs had been wasted given that the Government had not yet chosen what course it would pursue to continue the procurement. Absent a more persuasive explanation from Litton as to why it had "good ----------- FOOTNOTE BEGINS --------- [foot #] 3 Litton characterizes the request for wasted proposal preparation costs as premature, apparently relying on the Board's observation in its underlying decision that Westinghouse's request, made in its post-hearing brief, that the Board declare it entitled to recover proposal preparation costs, was possibly premature in light of the options available to the FAA. This issue was thus deferred for resolution in conjunction with any cost application that might be filed by Westinghouse. 93-1 BCA at 126,133 n.28, 1992 BPD 196 at 44 n.28. This statement was not intended to provide, nor could it reasonably be construed as, an extension of time to file such a motion beyond the thirty-day period established under our rule. [foot #] 4 The unavailability of complete cost information generally does not discourage successful protesters from filing within thirty days with a request for leave to supplement the motion with updated accurate information. Indeed, information on the cost of preparing the cost petition itself is rarely, if ever, available as of the original filing. Requests for leave to supplement the initial filing are thus customarily granted by the Board. ----------- FOOTNOTE ENDS ----------- cause" to delay the filing of this motion, we have no reasonable basis for extending the deadline established in the rule. Decision This cost application is DISMISSED AS UNTIMELY FILED. ________________________________ CATHERINE B. HYATT Board Judge We concur: ____________________________ ________________________________ EDWIN B. NEILL MARY ELLEN COSTER WILLIAMS Board Judge Board Judge