Proposal Preparation Costs

The protester seeks to recover $48,851.68 as the reasonable costs of preparing its proposal. Claim at 2. Where our Office sustains a protest, we may recommend that the protester be reimbursed its costs of filing and pursuing a protest and preparing a proposal. 4 C.F.R. § 21.8(d). Although we normally do not recommend reimbursement of proposal preparation costs where a protester has a further opportunity for award, we may recommend reimbursement where, for instance, changed circumstances render no longer relevant a proposal that was previously submitted. See COBRO Corp., B‑287578.2, Oct. 15, 2001, 2001 CPD ¶ 181 at 8-9. Here, because the awarded lease contains no termination clause, there is no relief available to the protester except reimbursement of its costs. In these circumstances, we recommend the reimbursement of the reasonable costs of preparing the protester’s proposal. The agency has offered to reimburse the protester $47,242.00, the amount requested by the protester, less reimbursement for certain disputed travel expenditures. Agency Reply at 14.

Specifically, GSA contends that the attendance of the wife of Federal Builders’ principal at the market survey--the initial meeting at the current leased facility between the agency and the protester--was unnecessary, and the agency thus requests that we not grant the protester’s request that we recommend reimbursement of Federal Builders for her expenses. Agency Reply at 3-4. The agency notes in this regard that the wife is not an employee of Federal Builders and that the protester claims no reimbursement for her time. See Claim, Exh. 5, Letter from Agency to Federal Builders, Feb. 2, 2015 at 2. The protester asserts that the disputed amount of reimbursement, $1,609.48, is reasonable, given that the protester is not asking for the reimbursement for the expenses incurred by the attendance of other Federal Builders employees at the market survey meeting, and that the principal’s wife performed valuable services of notetaking. Protester’s Comments, Sept. 18 at 8.

We agree with the agency that the protester has not shown that the wife’s expenses are reimbursable. The manager’s wife was not an employee of the firm, and the protester has sought no reimbursement for her time spent as a note taker, thus calling into question whether her presence at the meeting was a reasonable business expense. Further, the fact that the protester has not requested reimbursement of the expenses incurred by other individuals at the meeting in no way alters the fact that the protester has not shown that the wife’s expenses were reimbursable. We therefore recommend that the agency reimburse the protester proposal preparation costs of $47,242.00, that is the level of reimbursement agreed to by the agency, and the amount requested by the protester less reimbursement for expenses related to the manager’s wife’s attendance at the market survey meeting.

Attorneys’ Fees Associated with Pursuing the Protest at GAO

The protester also requests reimbursement of all of its attorneys’ fees in this matter, totaling $231,796.64. The agency responds that the protester should be reimbursed only for the costs of pursuing the one issue on which we sustained the protest, the agency’s unreasonable conclusion that the awardee had committed to meeting the solicitation requirement that it pay Davis-Bacon wage rates for expansion of its proposed facility. Agency Reply at 4-14.

We recommend that the protester be reimbursed the cost of filing its comments on the agency report and supplemental protest, as well as all subsequent attorneys’ fees incurred. The allegation that the agency unreasonably concluded that the awardee had committed to paying Davis-Bacon wage rates--the issue on which the protest was sustained--was contained in the combined comments and supplemental protest; rather than take timely corrective action, the agency continued to defend its evaluation, causing the protester to incur unnecessary attorneys’ fees.

According to protest counsel’s invoices to Federal Builders, the protester incurred legal fees of $177,252.50 after the filing of the agency report. See Claim, Exh. 2. We therefore recommend that Federal Builders be reimbursed $177,252.50--the cost of filing the supplemental protest containing the allegation on which the protest was sustained, as well as all of the fees incurred as a result of the agency’s decision to continue the litigation rather than take corrective action. In addition, the agency has agreed that the protester is entitled to reimbursement for fees related to compliance with and admission to the protective order, and with filing a successful opposition to the agency’s request for dismissal of the protest. See Agency Comments, Sept. 24 at 5, 7. The agency calculates the fees related to the protective order at $709.60 and the protester does not dispute that calculation. See id. at 7-8. A review of invoices for June and July indicates that protest counsel billed the protester $4,960 in fees to respond to the agency’s unsuccessful motion for partial dismissal. In these circumstances, we recommend that Federal Builders be reimbursed a total of $182,922.10 in attorneys’ fees for filing and pursuing its protest at this Office.

Costs Associated with Pursuing the Claim

Pursuant to our Bid Protest Regulations, we may recommend that a contracting agency pay a protester the costs of pursuing its claim for reimbursement with our Office. 4 C.F.R. § 21.8(f)(2). This provision is intended to encourage the agency’s expeditious and reasonable consideration of a protester’s claim for costs. JAFIT Enters., Inc.--Claim for Costs, B-266326.2, B-266327.2, Mar. 31, 1997, 97-1 CPD ¶ 125 at 4. However, we will recommend payment of such costs only if it is shown that the agency failed to consider, or unreasonably delayed consideration of, the protester’s claim. Blue Rock Structures, Inc.--Costs, B‑293134.2, Oct. 26, 2005, 2005 CPD ¶ 190 at 6.

Here, the protester submitted its claim for costs to the agency on November 6, 2014; that claim included, in part, the following: line item entries for all time spent and expenses incurred by Federal Builders and its consultants in preparing and pursuing its protest; detailed monthly invoices for outside counsel, Jones Day, that identified by attorney the time spent working on the protest; support for the reasonableness of Jones Day’s hourly rates;[2] and line item entries for all time spent by Federal Builders in pursuit of the protest. Claim, Nov. 6, 2014, Exh. 2.

On the principal issue of the reasonable amount of attorneys’ fees to reimburse, the agency had all of the information necessary to make an offer of settlement to Federal Builders at the time the protester first submitted its certified claim to the agency, but the agency instead waited 10 months before making its offer. This delay is attributable to the agency. Further, the agency’s initial offer of settlement of the legal fees portion of the claim that immediately preceded the protester’s submission of its claim to this office was only $4,000. Claim, Nov. 6, 2014, Exh. 14, Letter from Agency to Federal Builders, July 24, 2015 at 7. That offer was less than two percent of the amount that the protester had requested, and was considerably less than the amount ($39,104.53) to which the agency itself agreed in the course of the subsequent negotiations to settle this claim. See Agency Comments, Sept. 24, 2015, at 10 (agreeing to reimburse protester $39,104.53 for attorneys’ fees for filing and pursing the protest and supplemental protest).

In our view, the lengthy delay in the agency’s initial offer of settlement of the legal fees and the disparity between the offer and what the agency later agreed should be reimbursed support the reasonableness of the protester’s request for reimbursement of the attorneys’ fees required to pursue the claim with this Office. We therefore recommend that the agency reimburse Federal Builders $21,577.50 for the costs of pursuing its claim with GAO. See Email from Federal Builders to GAO, Oct. 26, 2015 (containing invoices for August and September); Email from Federal Builders to GAO, Nov. 9, 2015 (containing October invoice).

Conclusion

In sum, we recommend that the agency reimburse Federal Builders a total of $259,488.52, including proposal preparation costs of $47,242.00, $182,922.10 in attorneys’ fees for filing and pursuing the protest, $7,746.92 for the time spent by Federal Builders’ manager in assisting counsel in preparing and pursuing the protest, and $21,577.50 for the costs of pursuing its claim for reimbursement.  (Federal Builders, LLC-The James R. Belk Trust--Costs B-409952.3: May 6, 2016)  (pdf)

In our view, Debcon raised a clearly meritorious challenge to the evaluation. Notwithstanding the Corps’s position in the agency report and supplemental agency report, it was contrary to regulation for the agency to rate Debcon, as a small business, merely acceptable under the small business participation plan factor where higher ratings were available. Nevertheless, the Corps argues that any misevaluation under the small business participation plan factor was not prejudicial to Debcon either because Atherton was also a small business, or because the small business participation plan evaluation “did not figure in the overall decision to award to Atherton.” Corps Opposition to Costs at 3. Our review of the record leads us to disagree. The RFP provided that the non-price factors, when combined, would be significantly more important than price in making the source selection decision, RFP amend. 1 at 4, and as noted above, Debcon’s proposal offered a lower price than Atherton’s. Although we cannot say whether the Corps would still have determined that Atherton’s proposal justified the payment of its higher price if Debcon had been evaluated properly under the small business performance plan factor, in such circumstances, we resolve doubts regarding prejudice in favor of a protester. Raytheon Co., B-409651, B-409651.2, July 9, 2014, 2014, CPD ¶ 207 at 17.

As to Debcon’s other evaluation challenges, however, the Corps presented a defensible legal position based on the factual record, so we cannot regard those issues as clearly meritorious. For example, Debcon argued that the Corps improperly imposed an unstated evaluation criterion and unreasonably evaluated the past performance factor by requiring offerors to have at least two very relevant past performance references in order to be eligible for the highest past performance rating. Our Office has held that such a requirement is reasonable, however, and need not be disclosed in the solicitation. See A&D Gen. Contracting, Inc., B‑409296, Feb. 24, 2014, 2014 CPD ¶ 71 at 5 (protest denied where evaluation required a minimum of four relevant projects to be eligible for highest past performance rating, even though requirement was not disclosed in solicitation). Since Debcon had only one very relevant project as its past performance, the Corps considered Debcon to be ineligible to receive the best past performance rating (substantial confidence). Thus, the Corps was not required to consider the project’s greater complexity or Debcon’s positive ratings for that work. Similarly, Debcon’s argument that the past performance evaluation showed unequal treatment when compared to Atherton was also not clearly meritorious. The Corps presented a defensible legal position that the evaluation of Debcon and Atherton differed because Atherton submitted multiple past performance examples, making irrelevant Debcon’s effort to compare its past performance with Atherton’s on the basis of relevance and quality.

Ultimately, Debcon presented one clearly meritorious evaluation challenge, while its other grounds of protest were either not clearly meritorious or the corrective action was prompt. Accordingly, we must consider whether the reimbursement of only a portion of the protester’s costs is proper. As a general rule a successful protester should be reimbursed the costs incurred with respect to all the issues pursued, not merely those upon which it has prevailed. Salvation Army Cmty. Corr. Program--Costs, B‑298866.3, Aug. 29, 2007, 2007 CPD ¶ 165 at 7 (recommending reimbursement of costs including those raised after receipt of agency report). In determining whether to limit the reimbursement of costs, our Office considers, among other things, whether the successful and unsuccessful arguments share a common core set of facts, are based on related legal theories, or are otherwise not readily severable. Burns & Roe Servs. Corp.--Costs, B-310828.2, Apr. 28, 2008, 2008 CPD ¶ 81 at 2-3.

In applying these principles, we have severed costs arising from allegations of misevaluation under separate evaluation factors on the basis that they are not clearly intertwined. For example, challenges to a past performance evaluation were not clearly intertwined with clearly meritorious challenges to the technical factor evaluation and the resulting tradeoff. Genesis Bus. Sys.--Costs, B-411264.11, Dec. 10, 2015, 2015 CPD ¶ 389 at 4; see also Carney, Inc.--Costs, B-408176.13, Feb. 14, 2014, 2014 CPD ¶ 82 at 5 (severing costs for alleged misevaluation of price from clearly meritorious challenge to technical capability factor evaluation); Loyal Source Gov’t Servs., LLC--Costs, B-407791.4, Feb. 14, 2014, 2014 CPD ¶ 139 at 4 (severing costs for evaluation challenges from clearly meritorious challenge to adequacy of best value tradeoff rationale). In a similar fashion, we severed the costs for challenges to the evaluation of the awardee and to the agency’s alleged failure to amend a solicitation because those issues were not clearly intertwined with a clearly meritorious allegation of unequal discussions. VSE Corp.; Univ. of Hawaii--Costs, B‑407164.11, B‑407164.12, June 23, 2014, 2014 CPD ¶ 202 at 8.

On the record here, we regard none of the protester’s challenges to the evaluation of its own proposal as intertwined with the clearly meritorious challenge to its evaluation under the small business performance plan factor. Accordingly, we do not recommend reimbursement of the costs of filing and pursuing any other issues.   (Debcon, Inc.--Costs B-412298.3: Apr 26, 2016)  (pdf)

Our Regulations provide for reimbursement, in appropriate circumstances, of reasonable proposal preparation and protest pursuit costs. 4 C.F.R. § 21.8(d). 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. 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), the purpose for which that expense was incurred, and how the expense relates to the protest before our Office. International Program Group, Inc.--Claim for Costs, B‑400278.4, B‑400308.4, June 22, 2009, 2009 CPD ¶ 128 at 3. The burden is on the protester to submit sufficient evidence to support its claim; that burden is not met by general, inadequately-supported statements that particular costs have been incurred. Aztec Dev. Co.--Claim for Costs, B‑270275.2, Feb. 13, 1997, 97-1 CPD ¶ 73 at 2. Failure to file an adequately-supported claim in a timely manner will result in the loss of the protester’s right to recover costs. Wind Gap Knitwear, Inc.--Claim for Costs, B‑251411.2; B-251413.2, Aug. 30, 1995, 95-2 CPD ¶ 94 at 3 (claim that lacks detail is denied).

Although we do not doubt that the protester spent some time in preparing the protest, and responding to the agency report, we find that Slaughter has not provided adequate documentation to support this claim. In this respect, the protester states that it will “settle the claim for any amount,” Slaughter Email to GAO, Oct. 16, 2015, and the only supporting documentation provided is a calendar with the phrase “8 Hrs” written on each of the weekdays from February through June of 2015. The protester has not provided any explanation as to what efforts were performed during that time, or by whom. The claim also does not provide any cost data to support the calculation of the hourly rates for Ryan P. Slaughter. Furthermore, repeated requests by the agency for the protester to provide a more detailed accounting of its efforts did not yield any further information.

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 claimed efforts, and to establish that the claimed hourly rates reflect actual rates of compensation. John Peeples--Claim for Costs, B‑233167.2, Aug. 5, 1991, 91-2 CPD ¶ 125 at 3. Given the complete lack of documentation we cannot recommend that the Air Force reimburse the costs sought by Ryan P. Slaughter because the claim does not meet the established minimum standards. Wind Gap Knitwear, Inc.‑-Claim for Costs, supra.  (Ryan P. Slaughter--Costs B-411168.4: Dec 14, 2015)  (pdf)

DILIGENT PURSUIT

As an initial matter, the agency requests that we deny S3’s request because the firm failed to diligently pursue its claim. In this connection, the agency points out that, despite it having offered S3 an amount in settlement of its request on September 15, 2014, S3 did nothing to pursue its claim for over four months.

We agree with the agency that S3 failed to diligently pursue its claim. Our Bid Protest Regulations contemplate prompt resolution of protest matters, including claims for protest costs; accordingly, we require protesters to diligently pursue such claims. Holloway & Co., PLLC--Costs, B-311342.5, July 6, 2009, 2009 CPD ¶ 146 at 2-3. Here, the record shows that the agency made a final settlement offer to S3 on September 15, 2014. That offer expressly invited S3 to contact the contracting officer should the firm have any questions concerning the agency’s settlement offer. Agency Response to Cost Claim, exh. 2, Contracting Officer’s Final Decision Concerning S3’s Claim, at 4. Notwithstanding the contracting officer’s invitation to answer any questions that S3 might have concerning the agency’s settlement offer, the record shows that S3 did nothing--either to arrange for payment of the amount offered by the agency, or to file its claim in our Office--for a period of more than four months.

S3 suggests that it was the agency that failed to take any action after sending S3 its September 15 letter. In this connection, S3 contends that the agency failed to request a purchase order from the firm, failed to remit payment to the firm, and failed to provide a timetable for making the proposed payment to S3. However, the record shows that it was S3 that failed to take any action by, at the very least, advising the agency that it either accepted or rejected the proposed settlement offer. Simply stated, S3 took no action of any sort in response to the agency’s offer for a period of more than four months, notwithstanding that, by filing its request with our Office, it apparently now has rejected the agency’s proposed settlement offer. Cf. Holloway & Co., PLLC--Costs, supra. (following agency’s proposed settlement offer, claimant requested that agency reconsider the amount of its proposed offer and agree to the amount originally requested by the claimant). Under the circumstances, we conclude that S3 failed to diligently pursue its claim. See Aalco Forwarding, Inc., et al.--Costs, B-277241.30, Jul. 30, 1999, 99-2 CPD ¶ 36 at 5 (GAO agreed with agency conclusion that the protester failed to diligently pursue its claim for costs when the protester did not respond for more than three months after the agency sought additional supporting information for the claim).  (System Studies & Simulation, Inc.--Costs B-409375.5: May 8, 2015)  (pdf)

The agency first argues the claimed attorneys’ hours are excessive and duplicative because the protest issue was straightforward and simplistic in nature and should not have required 93 hours of attorneys’ time. We find this argument is meritless.

Our Office will examine the reasonableness of 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, B-254492.3, July 20, 1995, 95-2 CPD ¶ 38 at 5. A recommendation that an agency pay a protester’s costs is intended to relieve protesters, with valid claims, of the burden of vindicating the public interests which Congress seeks to promote; it is not intended as a reward to prevailing protesters or as a penalty imposed upon the government. W.S. Spotswood & Sons, Inc.--Claim for Costs, B-236713.3, July 19, 1990, 90-2 CPD ¶ 50 at 3. 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. Pulau Elecs. Corp.--Costs, B-280048.11, July 31, 2000, 2000 CPD ¶ 122 at 6. An agency simply concluding that the hours claimed are excessive or suggesting there may be a duplication of effort is inadequate to justify denying a claim for protest costs. Id.

Our review of the claimed hours furnishes no basis for concluding that they exceeded, in nature or amount, what a prudent person would incur in pursuit of this protest, and we find no basis to question Shaka's claim in this regard. The record shows that Shaka submitted detailed billing statements, which included the description of the work performed by each attorney. The agency has not asserted that any specific charge is inappropriate, and does not question whether the attorneys actually worked the hours claimed. Under the circumstances, we find the agency’s assertions that Shaka’s claimed attorney hours were excessive and duplicative are unsupported, and find that these arguments therefore are insufficient to justify denying or reducing Shaka’s claim. See Pulau Elecs. Corp.--Costs, supra. Furthermore, we do not agree with the agency that the issue raised by the protester was a narrow, simplistic, and uncomplicated legal issue that did not justify the hours claimed, particularly given that this was a case of first impression for our Office.

The agency also now argues that Shaka’s cost claim for the attorneys’ fees incurred by Fay are not reimbursable because Fay was not a party to the protest. This argument also has no merit.

We have addressed this specific point in TMC, Inc.--Claim for Costs, B-230078.2, B-230079.2, Jan. 26, 1990, 90-1 CPD ¶ 111. As in TMC, this is not a case where the costs were incurred by a potential subcontractor acting independently of the interested party, Shaka, the actual or prospective offeror. Rather, we find the record shows that the costs were incurred by Fay acting in concert with, and on behalf of Shaka, in order to provide Shaka with legal assistance in the protest. In this regard, the record shows that Shaka and Fay had an agreement to split the legal costs of pursuing the protest, that the legal fees incurred by Fay were in fact for the pursuit of Shaka’s protest, and that Shaka will reimburse the amount paid by Fay in pursuit of this protest when the amounts are recovered by Shaka. In these circumstances, we believe the purpose of the statutory provision allowing recovery of protest costs--to relieve parties with valid claims of the burden of vindicating the public interest--is best effectuated by finding Shaka entitled to recover the costs incurred by Fay in concert with and on behalf of Shaka in pursuing this protest. Id. at 3.

Thus, we recommend payment of $22,275 of Shaka’s claimed costs: $15,450 for 47.7 hours of attorney time invoiced to Shaka at each attorney’s full billing rate, and $6,825 for 45.5 hours of attorney time invoiced to Fay at the $150 per hour rate.

Shaka also requests reimbursement for the costs of pursuing this claim before our Office. Our Bid Protest Regulations, 4 C.F.R. § 21.8(f)(2), provide that we may recommend reimbursement of the costs of pursuing a claim before our Office. See CNA Indus. Eng’g, Inc.--Costs, B-271034.2, Nov. 20, 1997, 97-2 CPD ¶ 149 at 7. This provision is intended to encourage the agency’s expeditious and reasonable consideration of a protester’s claim for costs. JAFIT Enters., Inc.--Claim for Costs, B-266326.2, B-266327.2, Mar. 31, 1997, 97-1 CPD ¶ 125 at 4. Here, given the agency’s failure to reasonably consider Shaka’s claim, we find that the protester may recover the reasonable costs of pursuing its claim at our Office.  (Shaka, Inc.--Claim for Costs, B-405552.2, May 17, 2012)  (pdf)
 

A protester seeking to recover the costs of pursuing a protest must submit sufficient evidence to support its monetary claim. John Peeples--Costs, B-233167.2, Aug. 5, 1991, 91-2 CPD para. 125 at 3. The amount claimed may be recovered to the extent that the claim is shown to be sufficiently related to the filing and pursuit of the protest, adequately documented, and reasonable in its nature and amount. JAFIT Enters., Inc.--Costs, B-266326.2, B-266327.2, Mar. 31, 1997, 97-1 CPD para. 125 at 2.

The agency here objects to reimbursement of the costs related to three of Mr. Kirkland's itemized work entries. We have reviewed the objections and the protester's response, and we agree with the agency's position. First, Mr. Kirkland describes a charge of $1,134 (for work performed on March 17) as including work related to a previously dismissed protest (B-401172, which is not relevant here), as well as work related to the protest associated with this claim. Since the single work entry aggregates allowable and unallowable costs in a way such that we cannot tell from the record what portion is unallowable, the entire amount must be disallowed. See TRESP Assocs., Inc.--Costs, B-258322.8, Nov. 3, 1998, 98-2 CPD para. 108 at 4. Likewise, since a $252 charge (for work performed on March 23) again aggregates unallowable charges (e.g., for the preparation of a letter for the contracting officer, which has not been shown to have been performed in pursuit of the protest) with allowable expenses (e.g., regarding communications about the status of the protest), the entry must be disallowed in its entirety. Id. Lastly, as the agency points out, a $126 work entry (for work performed on April 28) must be denied, as it was not in pursuit of the protest; the work instead involved protester counsel's efforts toward possible settlement of the protest. See Blue Rock Structures, Inc.--Costs, B-293134.2, Oct. 26, 2005, 2005 CPD para. 190 at 6.

The agency also objects to the costs for six work entries for Mr. Billings, primarily on the basis that they involve counsel's efforts toward settlement, and thus not pursuit, of the protest. We agree with the objections to two of the work entries, Mr. Billing's invoices for $160 (for work on April 28) and $80 (for work on April 29), as the work concerns efforts toward possible settlement of the action, and thus are not allowable costs. See T Square Logistics Servs. Corp., Inc.--Costs, B-297790.6, June 7, 2007, 2007 CPD para. 108 at 10-11. The other four work entries challenged by the agency (totaling $2,400), however, are considered allowable costs, and are included in our recommendation. The agency's assertion that these costs should not be reimbursed is unpersuasive as there is no showing that the costs related to settlement efforts or otherwise should not be allowed.

The protester also generally requests reimbursement of its costs related to the pursuit of its claim to our Office. We deny the request. Under our Bid Protest Regulations, 4 C.F.R. sect. 21.8(f)(2) (2010), we will recommend such payment only if it is shown that the agency failed to give reasonable consideration to, or unreasonably delayed consideration of, the protester's claim. See Blue Rock Structures, Inc.--Costs, supra at 7. Here, while the agency ultimately abandoned its initial objections, perhaps due to the additional explanation of the claim provided by the firm in its filing to our Office, there has been no showing that the agency failed to give reasonable consideration to the claim. Similarly, to the extent the protester now argues that the agency's request for proof of payment of its claimed attorneys' fees was not legally required, and thus, the request unreasonably delayed the agency's consideration of the claim, we find the protester's position unpersuasive. As the agency explains, it reasonably sought the information in order to confirm that Baine Clark was obliged to pay the claimed attorneys' fees; additionally, the firm did not object to the request, pose an alternate means to further demonstrate its obligation to pay the attorneys' fees it claimed, or immediately respond to the agency's request for the information. Rather, the record shows the protester added to the alleged delay by taking several weeks to provide the requested proof of payment. Further, the record shows that additional questions were reasonably raised by the proof of payment submitted by the protester, since the payment amount exceeded the amount claimed by the protester, requiring additional time for the agency to resolve the matter. See University of Dayton Research Institute--Costs, B-296946.7, Oct. 23, 2006, 2006 CPD para. 155 at 4.

Accordingly, we recommend that the agency reimburse Baine Clark a total of $24,908.34, representing $4,458.34 for Mr. Kirkland's fees and $20,450 for Mr. Billing's fees.  (Baine Clark Company, Inc.--Costs, B-401172.4, June 7, 2010) (pdf)

Even where an agency agrees to reimburse a protester's reasonable proposal preparation costs, a protester seeking to recover such costs must submit sufficient evidence to support its claim. John Peeples--Costs, B-233167.2, Aug. 5, 1991, 91-2 CPD para. 125 at 3. At 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 for employees), the purpose for which each expense was incurred, and how the expense relates to the claim. Maintenance and Repair--Costs, B-251223.4, June 24, 1994, 94-1 CPD para. 381 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 claimed efforts. W.S. Spotswood & Sons, Inc.--Costs, B-236713.3, July 19, 1990, 90-2 CPD para. 50 at 3. It is our obligation to ensure that any protester seeking to recover costs meets these minimum standards.

Here, we have reviewed the record and agree with the FCC that DTG has failed to provide sufficient support for its claim. Even after the FCC's specific request for the necessary documentation, DTG failed to provide more than the vague SinoPowell invoice as evidence of its costs. Further, DTG's statements have raised doubts as to whether any amounts due to SinoPowell and Yelverton Law Firm were incurred for the preparation of the proposal. For example, in the claim for costs filed with our Office, DTG states that SinoPowell and Yelverton Law Firm "negotiated as their compensation for bid preparation that they would be an integral part of implementing the $18 million project to be awarded to DTG, and would be paid for their services on such an integrated basis, and not just for bid preparation." Claim for Costs, Dec. 28, 2009, at 2 (emphasis in original).

We interpret DTG's various statements to the agency and to our Office to indicate that there is a portion of the "integrated" costs included in its claim for $118,500 that is not attributable to the preparation of its proposal under the solicitation, and is therefore not properly reimbursable. Where, as here, a protester has aggregated allowable and unallowable costs, and provided such insufficient documentation that we cannot tell from the record before us what portion is allowable, the entire amount must be disallowed even though some portion of the claim may be properly payable. TRESP Assocs., Inc.--Costs, B-258322.8, Nov. 3, 1998, 98-2 CPD para. 108 at 4. Accordingly, DTG's claim must be denied in full.  (DTV Transition Group, Inc.--Costs, B-401466.2, April 7, 2010) (pdf)
 

By correspondence dated July 3, 2008, the protester submitted a claim for costs totaling $130,344 to counsel for the agency. The protester reports that by letter dated September 5, 2008, the contracting officer rejected all but $12,930 of its claim. (The protester did not furnish us with a copy of this correspondence.) By letter of September 15, Holloway asked the contracting officer to reconsider his decision; the protester furnished our Office with a courtesy copy of this letter. In the letter's final paragraph, Holloway noted that it was sending a copy of the letter to our Office to place us "on notice about the non-agreement between [the parties]." The protester asked the contracting officer to "reconsider CMS's position and honor the invoice that was submitted by Holloway;" in the event the contracting officer was unwilling to reconsider his position, the protester requested that our Office recommend the amount of costs that the agency should pay. Holloway did not communicate with our Office further regarding the matter until May 19, 2009, more than 8 months later, when it submitted the instant request for a recommendation of the amount it should be reimbursed.

Our Bid Protest Regulations contemplate prompt resolution of protest matters, including claims for protest costs; accordingly, we require protesters to diligently pursue such claims. L-3 Comms. Corp., Ocean Sys. Div.--Costs, B-281784.5, Feb. 17, 2004, 2004 CPD para. 40 at 3. Here, Holloway waited more than 8 months after seeking reconsideration of the contracting officer's decision regarding its claim to ask our Office for a recommendation as to the amount of reimbursement; moreover, the protester has furnished no evidence that it followed up on its request to the contracting officer at any point over the 8-month period. Under these circumstances, we think that the protester's actions demonstrate a lack of diligence in pursuing its claim to our Office. Because the protester failed to diligently pursue its claim to our Office, Holloway's request for a determination of reimbursable costs is dismissed.  (Holloway & Company, PLLC--Costs, B-311342.5, July 6, 2009)  (pdf)

Thus, ICE argues that the legislative history of FASA indicates that Congress intended for the $150 cap to be a “benchmark” in deciding whether attorneys’ fees for successful small business protesters are reasonable, and supports the agency’s view that all of the hourly rates at issue here--especially the $705 per hour rate of the senior partner--are unreasonable per se. While our Office has previously addressed the “benchmark” language in FAR sect. 33.104(h)(5),[3] we have not addressed the legislative history of FASA--where this language first appears. As discussed below, we conclude that the legislative history does not, as ICE argues, bar reimbursement of legal fees at the rates charged by PCS’s outside counsel.

Our Office takes seriously--and in the words of the FASA conference report, is “vigilant” in fulfilling--our responsibility to evaluate the reasonableness of a successful protester’s request for reimbursement of attorneys’ fees. In numerous instances, our Office has agreed with agency arguments that certain costs for successful protesters are not allowable. For example, we have found that hours charged by outside counsel are excessive where the number of hours billed are “far beyond what should have been necessary to reasonably pursue the protest.” Galen Med. Assocs., Inc.--Costs, B-288661.6, July 22, 2002, 2002 CPD para. 114 at 2. We have denied requests for reimbursement where billing records show that multiple attorneys performed duplicative work, and did not demonstrate a need for such efforts. Fritz Cos., Inc.--Costs, B-246736.7, Aug. 4, 1994, 94-2 CPD para. 58 at 4-5. We have disallowed costs where the protester does not provide adequate documentation demonstrating the reasonableness of outside counsel’s hourly rates. TRS Research--Costs, B-290644.2, June 10, 2003, 2003 CPD para. 112 at 4. We have denied requests for reimbursement of protest costs where the protester has not stated that the costs sought for reimbursement have or will be paid by the protester, regardless of our ruling on the request. Id. at 5. We have disallowed costs that are not reasonably related to the pursuit of the protest, including, for example, costs associated with a request for reconsideration. Aztec Dev. Co.--Costs, B-270275.2, Feb. 13, 1997, 97-1 CPD para. 73 at 4. Similarly, our Office has disallowed costs in their entirety where a protester has aggregated allowable and unallowable costs in a way that does not allow us to identify which costs are properly reimbursable. Blue Rock Structures, Inc.-Costs, B-293134.2, Oct. 26, 2005, 2005 CPD para. 190 at 5.

Here, we recognize that the FASA conference committee reiterated our Office’s responsibility, imposed in 1984 by CICA, to ensure that attorneys’ fees sought for reimbursement are reasonable. We see no conflict between FASA’s exemption of small businesses from a cap on attorneys’ fees, and the conference committee’s view that the “cap placed on attorneys’ fees for businesses other than small business constitutes a benchmark as to what constitutes a ‘reasonable’ level for attorneys’ fees for small businesses.” H. Rep. No. 103-712 sect. 1403 (Aug. 21, 1994), as reprinted in 1994 U.S.C.C.A.N. 2607, 2621-22. In this regard, we think that the conference committee report language concerning a “benchmark” provides guidance as to the evaluation of the reasonableness of attorneys’ fees. However, we do not view the benchmark language as imposing an additional limitation (i.e., a cap) on attorneys’ fees that are otherwise reasonable. Such an interpretation would be inconsistent with the plain statutory language of FASA which exempts small businesses from the specific cap imposed on large businesses--and we see no evidence that the Congress intended such a result. See Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000) (“when the statute’s language is plain, the sole function of the courts--at least where the disposition required by the text is not absurd--is to enforce it according to its terms” (internal quotation marks omitted)).

We think the benchmark language is appropriately viewed as one of a number of factors to be considered in determining whether attorneys’ fees are reasonable. Among these factors are: the legal context--CICA’s creation of a fee-shifting mechanism that provides for the reimbursement of a successful protester’s costs of pursuing a protest and FASA’s exemption of small businesses from the $150 per hour cap on attorney fees that applies to large businesses; the passage of time--13 years--and the concomitant changes in the cost of living and the level of fees since the enactment of FASA; the customary fees charged for similar legal work in the community where outside counsel practices; the experience, reputation and ability of the outside counsel; the specialized nature of government contracts law; and the complexity of the issues in the particular protest at issue.

In summary, we have considered the difference between the rates charged by PCS’s outside counsel and the $150 per hour cap that applies to large businesses, particularly in light of the conference committee’s views, and the relevant FAR provision, concerning the cap as a benchmark for reasonableness. We nonetheless think that, on balance, the rates charged by PCS’s outside counsel are reasonable. Specifically, as discussed in detail below, we find that the number of hours billed is reasonable, and that the rates charged by PCS’s outside counsel are consistent with those customarily charged by comparable firms in the Washington, DC area with similar levels of government contracts experience. We also think that the issues in this protest were of a level of complexity that supports the reasonableness of the rates. (Public Communications Services, Inc.--Costs, B-400058.4, June 25, 2009) (pdf)

Based on our review of the record, we agree with the agency that the number of hours claimed in preparing this Phase I proposal appear excessive, particularly considering that Celadon did not contemporaneously record the hours specifically allocated to this Phase I proposal or otherwise carry its burden of showing that its claimed hours were reasonable. Where our Office has found that the number of hours exceeded that which a prudent person would claim, we have reduced the number of hours to reflect a reasonable work effort, given the nature of the particular protest. See SKJ & Assocs., Inc., B‑291533.3, July 24, 2003, 2003 CPD para. 130 at 3. Here, given the statements of the HHS program officials as to what are reasonable hours for preparing an SBIR proposal of this nature, and in the absence of any better evidence, we accept as reasonable the agency’s determination to allow 40 hours for the two employees to prepare the proposal, and 10 hours for the president to review it.

We also accept the agency’s calculation of the rates for the three Celadon employees who prepared the proposal. As indicated by the agency, while Celadon supported the salaries paid its employees, it used a flawed method to calculate its claimed hourly labor rates based on these yearly salaries. That is to say, Celadon’s calculations resulted in including indirect costs, e.g.,vacation time and paid lunch, in its direct labor rates. Celadon does not dispute this agency analysis. Thus, when Celadon applied the fringe benefit, overhead and G&A rates to its claimed labor rates, which should account for all of the indirect costs, Celadon was essentially double-counting the indirect costs included in the labor rates. This double-counting had the effect of including profit in addition to actual costs in Celadon’s proposed labor rates. A protester may not recover profit on its employees’ time in filing and pursuing protests, and, therefore, claimed rates must be based upon actual rates of compensation, plus reasonable overhead and fringe benefits, and not market rates that include profit as an element. W.S. Spotswood & Sons, Inc.--Claim for Costs, supra.

In sum, we recommend that Celadon be reimbursed its proposal preparation costs for 40 hours at $51.92 for one employee, for 40 hours at $40.86 for another employee, and for 10 hours at $51.92 for the president. After Celadon’s claimed indirect rates are applied to these direct labor costs, the total reasonable proposal preparation costs, as was determined by HHS, is calculated as $6,139. AR, Tab 26, Claim Calculation.

Celadon also claims $9,868 for its costs of pursuing the protest, representing 101.5 hours of Celadon’s president’s time at $67 per hour, plus applicable indirect costs. AR, Tab 2, Celadon’s Claim. The agency only allowed 60 hours at $51.92 per hour. AR, Tab 26, Claim Calculation. For the reasons stated above, we accept the agency’s determination that the president should be reimbursed at the $51.92 rate. However, the agency has not specifically contended that the 101.5 hours charged by the president for pursuing the protest are excessive, and based on our review of the record, we find no basis for so concluding. Thus, we find that Celadon should be reimbursed $7,648 for its costs of pursuing the protest, which represents 101.5 hours of the president’s time at $51.92 per hour, plus indirect costs at the claimed rates.

Finally, Celadon’s claim seeks reimbursement of $8,640, reflecting time spent on the preparation of Celadon’s cost claim at the agency. However, while our Bid Protest Regulations provide that we can recommend reimbursement of the costs of pursuing a claim for protest costs at our Office, 4 C.F.R. sect. 21.8(f)(2), there is no provision providing for reimbursement of costs of preparing and pursuing a claim at the procuring agency. Manekin Corp.--Costs, B-249040.2, Dec. 12, 1994, 94-2 CPD para. 237 at 6. To the extent Celadon requests that it be reimbursed the costs of pursuing its claim at our Office, we will make such a recommendation only if it is shown that the agency unreasonably delayed consideration of the protester’s claim or otherwise failed to give the claim reasonable consideration. Blue Rock Structures, Inc.--Costs, B-293134.2, Oct. 26, 2005, 2005 CPD para. 190 at 7. Here, since we have essentially agreed with the agency’s determination of the amount of costs which Celadon should be reimbursed and find any delay in resolving the claim was substantially contributed to by Celadon’s actions, we do not recommend that its costs of pursuing the claim at our Office be reimbursed.  (Celadon Laboratories, Inc.--Costs, B-298533.2, November 7, 2008) (pdf)

As a general rule, we consider a successful protester entitled to be reimbursed costs incurred with respect to all issues pursued, not merely those upon which it prevails. AAR Aircraft Servs.--Costs, B-291670.6, May 12, 2003, 2003 CPD para. 100 at 9. In our view, limiting recovery of protest costs in all cases to only those issues on which the protester prevailed would be inconsistent with the broad, remedial congressional purpose behind the cost reimbursement provisions of the Competition in Contracting Act of 1984, 31 U.S.C. sect. 3554 (c)(1)(a) (2006). AAR Aircraft Servs.--Costs, supra; TRESP Assocs., Inc.--Costs, B-258322.8, Nov. 3, 1998, 98-2 CPD para. 108 at 2. Nevertheless, failing to limit the recovery of protest costs in all instances of partial or limited success by a protester may also result in an unjust award determination. Accordingly, in appropriate cases, we have limited our recommendation for the award of protest costs where a part of those costs is allocable to an unsuccessful protest issue that is so clearly severable from the successful issues as to essentially constitute a separate protest. See, e.g., BAE Tech. Servs., Inc.--Costs, B-296699.3, Aug. 11, 2006, 2006 CPD para. 122 at 3; Interface Floorings Sys., Inc.--Claim for Attorneys’ Fees, B‑225439.5, July 29, 1987, 87‑2 CPD para. 106 at 2-3. In determining whether protest issues are so clearly severable as to essentially constitute separate protests, we consider, among other things, the extent to which the issues are interrelated or intertwined--i.e., the successful and unsuccessful arguments share a common core set of facts, are based on related legal theories, or are otherwise not readily severable. See Sodexho Mgmt., Inc.--Costs, B‑289605.3, Aug. 6, 2003, 2003 CPD para.136 at 29.  We previously have found that the three issue areas raised by BRSC in its protest--misevaluation of proposals, failure to hold meaningful discussions, and treating offerors unequally--involve the same core facts, and thus are intertwined for purposes of considering whether protest costs should be reimbursed. BAE Tech. Servs. Inc.--Costs, B-296699.3 Aug. 11, 2006 , 2006 CPD para. 122 at 3. The agency has presented no argument or evidence that persuades us that our view in this regard should be changed under the facts of this case. Under these circumstances, we conclude that the evaluation, discussions, and equal treatment issues raised in BRSC’s protest are not severable, and that BRSC therefore should be reimbursed its reasonable costs related to all of these issues. BRSC is not required to separate the costs associated with its arguments relating to the agency’s failure to conduct meaningful discussions from the costs associated with the other arguments raised in its protest. BRSC should submit its claim to the agency.  (Burns and Roe Services Corporation--B-310828.2, Costs, April 28, 2008)  (pdf)

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)