We decline to recommend that TACOM reimburse ALF for any costs. We will recommend the amount that the agency should pay only where, prior to coming to our Office, the protester timely pursued a claim to the agency; that is, where the protester filed an adequately documented claim with the agency within 60 days after receiving our recommendation that costs be paid. See 4 C.F.R. sect. 21.8(f)(1). The 60‑day timeframe was specifically designed to avoid the piecemeal presentation of claims (which necessarily results in unduly delaying their resolution), while at the same time affording protesters an ample opportunity to submit adequately substantiated certified claims. REEP, Inc.--Costs, B-290665.2, July 29, 2003, 2003 CPD para. 131 at 4. To be considered adequately documented, a claim for reimbursement of employee compensation must include documentation establishing the number of hours worked and the purposes of the employees’ efforts; in addition, it must demonstrate that the claimed hourly rates reflect the employees’ actual rates of compensation plus reasonable overhead and fringe benefits. See W.S. Spotswood & Sons, Inc.--Claim for Costs, B-236713.3, July 19, 1990, 90-2 CPD para. 50 at 3. While we do not believe that the 60-day timeframe should be applied in so harsh a manner that a protester receives no reimbursement merely because its initial, timely claim required some supplementation or elaboration, where the timely submission is of little or no value in supporting the claim, we will consider the claim untimely and regard it as forfeited. REEP, Inc.--Costs, supra. We note in this connection that a protester’s failure to file an adequately documented claim within the 60-day period may result in forfeiture of its right to recover costs even where the parties have continued to negotiate after the 60-day period expired. H. G. Prop. A, L. P.--Costs, B‑277572.8, Sept. 9, 1998, 98-2 CPD para. 62 at 2-3. Here, ALF’s initial, timely submission to the agency was so deficient as to be of basically no value in supporting its claim. As previously noted, the submission failed to furnish any detail regarding the claimed employee hours or supporting the claimed rates of compensation; in addition, it failed to include any documentation demonstrating ALF’s obligation to compensate the consultant. Moreover, even when given the opportunity to supplement its submission to the agency, ALF never sought to overcome the second deficiency; that is, it never furnished the agency with documentation supporting its claimed rates of employee compensation--and, indeed, ultimately submitted documentation to our Office that clearly demonstrated that the initially claimed rates were substantially overstated. In addition, we are not persuaded that prior to seeking a recommendation regarding cost recovery from our Office, the protester made a reasonable attempt to reach an agreement with the agency, as contemplated by our Regulations. As noted above, it was not until the protester sought a recommendation from our Office that it for the first time furnished documentation substantiating its claimed rates of employee compensation. By failing to furnish such documentation to the agency, ALF effectively eliminated the possibility of the two parties arriving at an agreement. We do not think that it is appropriate to permit a protester to seek a recommendation regarding cost recovery from our Office where it has not previously made a reasonable effort to reach an agreement with the agency.  (Al Long Ford--Costs, B-297807.2, October 18, 2007) (pdf)

Under the Competition in Contracting Act (CICA), when our Office finds that an agency’s procurement activities fail to comply with the requirements of statute or regulation, we are given discretionary authority to recommend the reimbursement of proposal preparation costs. Specifically, CICA states: “If the Comptroller General determines that . . . 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 . . . bid and proposal preparation.” 31. U.S.C. sect. 3554(c)(1) (2000) (italics added).  Here, as discussed above, Lockheed Martin has already received the agreed-upon compensation for its performance of the fixed-price CAD contract, under which its technical solution for the SDD contract was evaluated. Further, Lockheed Martin will have an opportunity to compete for the phase II requirements that were deleted from the solicitation. Finally, it is clear that, following deletion of the phase II requirements, Lockheed Martin continued to compete for the modified phase I requirements; its protest, which we sustained, challenged the basis for the changes to those requirements--not the source selection process following the changes.  Based on our consideration of the record as a whole, we decline to exercise our discretionary authority to recommend reimbursement of Lockheed Martin’s proposal preparation costs. (Lockheed Martin Corporation--Costs, B-295402.2, November 1, 2005) (pdf)

We have previously reasoned that the justification for an upward fee adjustment is self-evident if the claimant alleges that the cost of living has increased, as measured by the Department of Labor’s Consumer Price Index (CPI). Sodexho Mgmt., Inc.--Costs, B-­289605.3, Aug. 6, 2003, 2003 CPD para. 136 at 41. In this regard, we have declined to impose a requirement that a claimant do more than request an adjustment and present a basis upon which the adjustment should be calculated. Id.; see Brickwood Contractors, Inc. v. United States, 49 Fed. Cl. 148, 164 (2001); California Marine Cleaning Servs., Inc. v. United States, 43 Fed. Cl. 724 (1999). Where a claimant meets this standard, and an agency does not articulate any objection, we will grant a claimant’s request for a recommendation in favor of a cost of living adjustment to the fee cap. Sodexho Mgmt., Inc.--Costs, supra. In support of its claim for attorneys’ fees above the $150 level, Inter-Con provided a detailed explanation of its calculation of the rates and included a printout of the “All Urban Consumers” CPI for the San Francisco-Oakland-San Jose, California area. Inter‑Con Claim Letters, dated April 8 and 26, 2005. Use of the “All Urban Consumers” CPI for a specific area is consistent with our decision in Sodexho. See Sodexho Mgmt., Inc.--Costs, supra, at 43 n.33. In requesting our recommendation, DOS agrees that the protester’s “request appears to be consistent with the standards followed in [Sodexho],” and provides no specific objection to the higher fees. DOS Letter, June 3, 2005. We have reviewed Inter-Con’s calculation in support of the higher requested fees, and find that they appear properly supported and reasonable. Accordingly, we recommend that DOS pay the higher attorneys’ fees claimed. (Department of State--Costs, B-295352.5, August 18, 2005) (pdf)

CourtSmart incurred $153,971.25 for its attorney's services at an hourly rate of $475. SSA generally alleges that the rate is above the reasonable rate charged for these services. In response, CourtSmart submitted information from a 2002 national billing rate survey. Specifically, CourtSmart identified the ranges of hourly billing rates for partners and for associates from 19 firms in the Washington, D.C. area, as published in the January 2003 edition of Legal Times. The hourly rates for partners reported by these firms ranged from $185 to $750. CourtSmart Submission (Oct. 1, 2004) at 2, encl. 4. The highest rates for partners for all but two of these firms were in excess of $500. CourtSmart states that a breakdown of billing rates by specific practice area was not available. CourtSmart's attorney states that he has 30 years of experience in federal procurement law in the Washington, D.C. area, and has the expertise, reputation and ability commensurate with partners at the high end of the billing rate range. CourtSmart asserts that, since the $475 rate billed by its attorney is within the range billed by firms in the community, the hourly rate is reasonable. SSA has not challenged the applicability of the survey for the purpose of determining the reasonableness of the attorney's hourly rate billed here. SSA has also not challenged the asserted expertise, reputation and ability of the attorney. Here, the work was performed by the attorney from November 2003 through February 2004, which is within approximately 1 year of the billing rate survey. Although the survey does not provide hourly rate information for attorneys practicing in federal procurement law or related areas of practice, SSA does not challenge the relevance of the information submitted. On this record, we find the attorney's billed hourly rate of $475 was reasonable. See KPMG Peat Marwick, LLP--Costs , supra, at 5-6; Bay Tankers, Inc.--Costs , supra . Therefore, we find $153,971.25 ( i.e. , 324.15 hours x $475 per hour) that CourtSmart claims for attorney's fees is reasonable and recoverable. (CourtSmart Digital Systems, Inc.--Costs, B-292995.7, March 18, 2005) (pdf)

Furthermore, even if SBA were to issue a formal size determination, that determination would not have any retroactive effect on Brechan's size for purposes of its initial protest, as the effect of such a determination after the award of a contract is prospective. See , e.g. , FAR 19.302(j); Planned Sys. Int'l, Inc. , B-292319.7, Feb. 24, 2004, 2004 CPD 43 at 3 (adverse SBA decision issued after award does not require cancellation of the award); Dawkins Gen. Contractors & Supply, Inc , B243613, B-243613.11, Sept. 21,1992, 92-2 CPD 190 at 3 (adverse SBA size determinations apply prospectively only). Although Brechan's request presents the somewhat unusual circumstance of an agency's challenge to the size status of an unsuccessful offeror after award has been made, in the context of a recompetition in which the offeror is not participating and solely for the purpose of challenging entitlement to protest costs, we believe that our cases and SBA regulations do not provide for a retroactive challenge to Brechan's standing. Accordingly, we conclude that there is no basis to challenge Brechan's status as a small business for purposes of this request. Based on the record, Brechan's request for a recommendation that it be reimbursed the reasonable costs of filing and pursuing its protest is granted. Further, in light of the discussion above, we conclude that Brechan is a small business for purposes of filing its claim for costs with the agency. (Brechan Enterprises, Inc.--Costs, B-294046.2, November 4, 2004) (pdf)

We find that reimbursement is warranted. The promptness standard applicable to protests cannot be applied to the agency's request for reconsideration because the request itself caused the protester to expend unnecessary time and resources to obtain relief, a key consideration in our deciding whether reimbursement of a protester's costs is appropriate. See AAR Aircraft Servs.--Costs , B-291670.6, May 12, 2003, 2003 CPD 100 at 5. It is reasonable for a firm whose protest has been sustained by our Office to feel compelled to respond to the agency's request for reconsideration. Here, the agency caused the protester to incur costs opposing a request for reconsideration that was devoid of merit. In this regard, parties filing requests for reconsideration are required to submit a detailed statement of the factual and legal grounds upon which reversal or modification is deemed warranted, specifying any errors of law made or information not previously considered. Bid Protest Regulations, 4 C.F.R. 21.14(a). DHS's reconsideration request did not meet this standard. (Security Consultants Group, Inc.--Costs, B-293344.6, November 4, 2004) (pdf)

Neither our regulations nor our prior decisions recognize an exception to the 60-day filing requirement based simply on the fact of a request for reconsideration having been filed. While our Office has indicated that we may consider an untimely claim for good cause, we have construed the term to mean that some compelling reason beyond the control of the protester prevented the protester from timely filing the claim. Continental Maritime of San Diego, Inc.-Costs , B-249858.5, Dec. 17, 1993, 93-2 CPD 323 at 2; Test Sys. Assocs., Inc.-Costs , May 3, 1993, 93-1 CPD 351 at 2. Here, there is no evidence that Keeton could not have filed within the required time period a documented, substantiated claim for the costs of filing and pursuing the protest that we had sustained. Not only did Keeton's request for reconsideration not prevent the protester from timely filing its claim, the request for reconsideration did not even call into question the basis upon which we sustained the protest and thus our recommendation of protest costs. Moreover, we note that when Keeton received our decision denying its request for reconsideration on March 31, Keeton still had 33 days within which to file its cost claim. Keeton has offered no explanation as to why it did not have sufficient time after receiving our decision denying its request for reconsideration to complete and timely file its claim with the agency. In these circumstances, we decline to recommend that the agency pay the claimed costs. (Keeton Corrections, Inc.—Costs, B-293348.3, October 25, 2004) (pdf)

Based on our review of the record, we find no basis to object to the reasonableness of the agency’s determination that CAMS should be reimbursed $3,946.30 for its total claimed costs of filing and pursuing its protest. However, we do not recommend that CAMS be reimbursed for the costs of pursuing its claim at the agency, because those costs are not associated with proceedings before our Office. See SKJ & Assocs.--Costs, B-291533.3, July 24, 2003, 2003 CPD ¶ 130 at 4. We also deny CAMS’s costs for pursuing this claim before our Office. Our Bid Protest Regulations, 4 C.F.R. § 21.6(f)(2) (2003), provide that we may recommend that a protester be reimbursed the costs of pursuing its claim before our Office. Since we recommend that CAMS be reimbursed the amount the agency determined is due, however, we find no basis to recommend that CAMS be reimbursed for the costs of pursuing the claim at our Office. (CAMS, Inc.--Costs, B-292546.2, March 22, 2004) (pdf)

Our Bid Protest Regulations, 4 C.F.R. § 21.8(f)(1) (2003), require protesters to file claims for protest costs within 60 days of receiving our recommendation that such costs be paid. This 60-day timeframe was specifically designed to avoid the piecemeal presentation of claims (which necessarily results in unduly delaying their resolution), while at the same time affording protesters an ample opportunity to submit adequately substantiated, certified claims. HG Properties A, L.P.--Costs, B-277572.8, Sept. 9, 1998, 98-2 CPD ¶ 62 at 2. A protester's failure to file an adequately documented claim within this 60-day period results in forfeiture of its right to recover costs, irrespective of whether the parties may have continued to negotiate after the 60-day period expired. Id. at 2-3. In this latter connection, a protester seeking to recover its protest costs must submit evidence sufficient to support its claim that those costs were incurred and are properly attributable to filing and pursuing the protest. Stocker & Yale, Inc.--Claim for Costs, B-242568.3, May 18, 1993, 93-1 CPD ¶ 387 at 4. Although we recognize that the requirement for documentation may sometimes entail certain practical difficulties, we do not consider it unreasonable to require a protester to document in some detail the amount and purposes of its employees' and attorneys' efforts and to establish that the claimed hourly rates reflect the employees' actual rates of compensation plus reasonable overhead and fringe benefits. W.S. Spotswood & Sons, Inc.--Claim for Costs, B-236713.3, July 19, 1990, 90-2 CPD ¶ 50 at 3. We do not believe that the 60-day timeframe should be applied in so harsh a manner that a protester receives no reimbursement merely because its initial, timely, claim required some supplementation or elaboration. Nonetheless, where the timely submission is of little or no value in supporting the claim, we believe that the claim should be rejected as untimely.  (REEP, Inc.--Costs, B-290665.2, July 29, 2003)  (pdf)

Our review of the record confirms the reasonableness of the agency's conclusion that the protester has not adequately documented its protest costs. Despite the passage of many months and several requests from the agency to do so, the protester has not submitted any documentation to show that the $425 hourly rate claimed by TRS counsel is representative of that charged for similar services in the Philadelphia area, where he practices law.  (TRS Research--Costs, B-290644.2, June 10, 2003)

Our Bid Protest Regulations provide that where the contracting agency decides to take corrective action in response to a protest, we may recommend that the protester be reimbursed the costs of filing and pursuing its protest, including reasonable attorneys' fees.  4 C.F.R. § 21.8(e) (2003). This does not mean that costs should be reimbursed in every case in which an agency decides to take corrective action; rather, a protest should be reimbursed its costs where an agency unduly delayed its decision to take corrective action in the face of a clearly meritorious protest. Griner's-A-One Pipeline Servs., Inc.--Entitlement to Costs, B-255078.3, July 22, 1994, 94-2 CPD ¶ 41.  Thus, as a prerequisite to our recommending that costs be reimbursed where a protest has been settled by corrective action, not only must the protest have been meritorious, but it also must have been clearly meritorious, i.e., not a close question. J.F. Taylor, Inc.--Entitlement to Costs, B-266039.3, July 5, 1996, 96-2 CPD ¶ 5 at 3; Baxter Healthcare Corp.--Entitlement to Costs, B-259811.3, Oct. 16, 1995, 95-2 CPE ¶ 174 at 4-5; GVC Cos.--Entitlement to Costs, B-254670.4, May 3, 1994, 94-1 CPD ¶ 292 at 3. A protest is "clearly meritorious" when a reasonable agency inquiry into the protester's allegations would show facts disclosing the absence of a defensible legal position.  Department of the Army--Recon., B-270860.5, July 18, 1996, 96-2 CPD ¶ 23 at 3. The mere fact that an agency decides to take corrective action does not establish that a statute or regulation clearly has been violated. Spar Applied Sys.--Declaration of Entitlement, B-276030.2, Sept. 12, 1997, 97-2 CPD ¶ 70 at 5.  Here, we conclude that it is not appropriate to recommend that East Penn recover its protest costs because East Penn's protest was not clearly meritorious.  (East Penn Manufacturing Company, Inc.--Costs, B-291503.4, April 10, 2003)  (txt version)

In view of the cancellation of the RFP, which has deprived ATS of an opportunity to compete for the scope of services contemplated in the solicitation at issue in the protest, ATS requests that we modify our earlier recommendation to allow ATS to be reimbursed the costs of preparing its proposal. The Army has no objections to ATS's request. Under these circumstances, we modify our recommendation to provide that ATS should be reimbursed the costs of preparing its proposal under the canceled solicitation. [1] 31 U.S.C. sect. 3554(c)(1), 4 C.F.R. sect. 21.8(d)(2) (2001).  (Aberdeen Technical Services--Modification of Recommendation, B-283727.3, August 22, 2001)  (pdf)

Request for recommendation that agency reimburse protester for the costs it incurred in pursuing an administrative appeal of the agency's initial cost comparison decision under Office of Management and Budget Circular No. A-76 is denied because GAO's authority to recommend reimbursement of protest costs does not extend to costs incurred by a protester in litigating in another forum.  (Rice Services, Ltd.--Costs, B-284997.2, May 18, 2001)

Our Office generally accepts the number of attorney hours claimed, unless the agency identifies specific hours as excessive and articulates a reasoned analysis as to why payment for those hours should be disallowed. Data Based Decisions, Inc.--Claim for Costs, B-232663.3, Dec. 11, 1989, 89-2 CPD para. 538 at 3. Simply concluding that the hours claimed are excessive or suggest duplication of effort is inadequate to justify denying a claim for protest costs. Princeton Gamma-Tech, Inc.--Claim for Costs, B-228052.5, Apr. 24, 1989, 89-1 CPD para. 401 at 4. We will examine the reasonableness of the attorney hours claimed to determine whether they exceed, in nature and amount, what a prudent person would incur in pursuit of his or her protest. Price Waterhouse--Claim for Costs, B-254492.3, July 20, 1995, 95-2 CPD para. 38 at 5.  (Pulau Electronics Corporation--Costs, B-280048.11, July 31, 2000)  (pdf)

We next turn to the Navy's contention that it should not be required to reimburse DRS for its protest costs because the agency acted in good faith in relying on GSA's representations. As we stated in our prior decision, we have no basis to conclude, nor do we think, that the Navy acted in less than complete good faith in placing this order. DRS Precision Echo, Inc., supra, at 3. In addition, our prior decision did not intend to suggest that the Navy acted in bad faith in defending DRS's protest. Instead, the decision reflected only a limited concern about the continued defense of this purchase given GSA's inability over a period of several months to produce any evidence that a contract slated to expire had not done so. Id. Nonetheless, despite the Navy's claims of good faith, and despite any concern by our Office that the Navy may have unnecessarily prolonged the dispute, the decision whether to recommend an award of costs bears no relationship to whether the agency acted in good faith; rather, as stated above, costs are awarded to relieve protesters of the financial burden of the public service they perform. General Servs. Admin.--Recon., B-239569.2, Feb.13, 1991, 91-1 CPD para. 163 at 3.  (Department of the Navy--Modification of Remedy, B-284080.3, May 24, 2000)

As a general rule, we recommend that a prevailing protester be reimbursed the costs incurred with respect to all issues pursued, not merely those upon which it prevails. Omni Analysis; Department of the Navy--Recon., B-233372.2, B-233372.3, July 24, 1989, 89-2 CPD para. 73 at 3-4. However, our Office will limit its recommendation regarding a successful protester's recovery of protest costs when a part of the costs is allocable to a losing protest issue that is so clearly severable as to constitute a separate protest. Price Waterhouse--Claim for Costs, B-254492.3, July 20, 1995, 95-2 CPD para. 38 at 3-4.  (TRW, Inc.--Costs, B-282459.3, August 4, 1999) (pdf)

We will not consider requests for a recommendation for reimbursement of costs where the protester fails to document its claim to the contracting agency. See Custom Prod. Mfg., Inc.--Recon., B-235431.8, July 21, 1995, 95-2 CPD para. 40 at 3. Where, as here, attorneys' fees are sought to be recovered, evidence from the attorneys involved must be submitted, including, for instance, copies of bills from the attorneys listing the dates the services were performed and the hours billed to the protester. Custom Prod. Mfg., Inc.--Costs, B-235431.7, May 9, 1995, 95-1 CPD para. 236 at 3. We have reviewed the documentation submitted by the protesters' attorneys here, which consists of the abstracts of attorneys' fees and expenses for each pleading or document that dealt with the partial set-aside issue, and we find this evidence insufficient to support the protesters' claim.  (A-1 Movers of America, Inc. et al.--Costs, B-277241.31, August 2, 1999)  (pdf)

A protester seeking to recover the costs of pursuing its protest must submit sufficient evidence to support its monetary claim. The amount claimed may be recovered to the extent that the claim is adequately documented and is shown to be reasonable; a claim is reasonable, if, in its nature and amount, it does not exceed that which would be incurred by a prudent person in the pursuit of a protest. E&R, Inc.--Claim for Costs, B-255868.2, May 30, 1996, 96-1 CPD para. 264 at 2; Data Based Decisions, Inc.--Claim for Costs, B-232663.3, Dec. 11, 1989, 89-2 CPD para. 538 at 2-3.  (Chant Engineering Co., Inc.--Costs, B-274871.4, April 28, 1999)  (pdf)