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GRANTED IN PART: May 23, 1994
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GSBCA 11054-C(10894-P)
ROCKY MOUNTAIN TRADING COMPANY--
SYSTEMS DIVISION,
Protester,
v.
DEPARTMENT OF THE INTERIOR,
Respondent.
Leslie H. Wiesenfelder of Dow, Lohnes & Albertson,
Washington, DC, counsel for Protester.
Alton E. Woods, Office of the Solicitor, Department of the
Interior, Washington, DC, counsel for Respondent.
Before Board Judges DANIELS (Chairman), BORWICK, and VERGILIO.
VERGILIO, Board Judge.
On January 14, 1991, Rocky Mountain Trading Company--Systems
Division filed its initial request to recover its costs of filing
and pursuing the underlying protest. In its twice-amended
request, the protester seeks to recover $15,546.98. This figure
includes amounts for retained counsel (hourly efforts and
disbursements) and in-house costs (hourly non-attorney efforts
and disbursements).
The respondent, the Department of the Interior, United
States Geological Survey, opposes the request. It maintains that
the protester is not an appropriate party entitled to any of the
requested costs. Additionally, it specifically objects to
recovery of the costs attributable to in-house efforts as
unsupported and unreasonable.
The Board concludes that the protester is an appropriate
interested party which significantly prevailed in the underlying
protest. The requested recovery for costs of retained counsel
and in-house disbursements are reasonable and justified; the
requested recovery for costs of in-house efforts are not.
Accordingly, the Board deems the protester entitled to recover
$11,468.69 of the requested amount.
Findings of Fact
1. By decision dated December 4, 1990, the Board granted
the protest underlying this request for costs of filing and
pursuing the protest. The Board determined that the contracting
officer had misevaluated offers in the application of a Buy
American Act differential; a proper evaluation resulted in the
protester being the lowest-priced offeror. Rocky Mountain
Trading Co., GSBCA 10894-P, 91-1 BCA 23,619, 1990 BPD 430,
motion for reconsideration denied, 91-2 BCA 23,679, 1991 BPD
1.
2. On January 14, 1991, the protester filed a motion to
recover its costs of filing and pursuing the protest. Through
the twice-amended request, the protester seeks $15,546.98. The
protester seeks to recover its costs for retained counsel
($10,810 for hourly fees and $593.72 for disbursements) and for
its in-house (non-attorney) efforts ($4,078.29 for hourly fees
and $64.97 for disbursements). Motion for Award of Costs (Jan.
14, 1991); Supplement (Feb. 22, 1991); Second Supplement (Mar.
10, 1991).
3. The attorney fees are calculated on an hourly basis at
hourly rates, with documentation supporting the time expended and
amount requested. Motion, Exhibits 1, 3; Supplement, Exhibits 1,
3; Second Supplement, Exhibits 1, 2. The disbursements are
itemized in supporting documentation. Each item (e.g., courier
services, photocopying, telecopier use, postage, and telephone)
is of a variety previously reimbursed by this Board. Aspect
Telecommunications v. Department of the Treasury, GSBCA 11399-C
(11250-P), 93-1 BCA 25,423, 1992 BPD 245; NCR Comten, Inc.,
GSBCA 8229[-C](8091-P), 86-2 BCA 18,822, 1986 BPD 24. The
Board finds the requested amounts to be reasonable and related to
reimbursable matters.
4. The protester seeks to recover for in-house, non-
attorney efforts of three individuals: its president (29.2
hours), its bid coordinator who supplied a one page affidavit (2
hours) and did "paper filing" on one day (2 hours), and another
employee whose efforts on January 7, 1991 (1 hour) are described
as "cost data." Motion, Exhibit 4; Protester's Reply (Mar. 18,
1991), Attachment. The protester states that it is a sole
proprietorship owned by its president. It calculates an hourly
rate for the president utilizing its federal tax returns
(Schedule C) from calendar year 1988. It determines the hourly
rate by dividing the net income for the company by 1,960 hours.
Case law involving this protester establishes the unacceptability
of the protester's approach which fails to distinguish between
"return to labor" and "return to income." Rocky Mountain Trading
Co., GSBCA 10047-C(10027-P), 91-2 BCA 23,796, 1991 BPD 40,
motion for reconsideration denied, 91-2 BCA 23,885, 1991 BPD
78. The record justifies neither the methodology nor the use
of 1988 data for efforts expended in 1990 and 1991 as reliable
indicators of costs associated with the time of the protester's
president. The record contains no basis for calculating the
actual cost to the protester for the efforts of its president.
5. The record does not justify the reasonableness of the
recovery of the requested two hours of effort for preparation of
the affidavit of the bid coordinator. Rocky Mountain Trading
Co., GSBCA 10894-P, 91-1 BCA 23,619, 1990 BPD 430 (Finding
9). The affidavit was prepared in support of a distinct basis
of protest which the Board denied. Similarly, the record does
not justify the reasonableness of the recovery of the requested
two hours of effort for "paper filing" by the individual. Given
the failures of proof regarding the efforts of the president and
bid coordinator, the record does not justify the reasonableness
of the recovery of the requested one hour of effort expended by
the remaining employee in developing cost data.
6. The protester seeks to recover $64.97 as its direct
expenses incurred "in preparing and pursuing the protest,
including reproduction, travel, courier charges, notarization,
fax, and postage." Motion, Exhibits 4, 5. The Board finds the
requested amount to be reasonable and related to reimbursable
matters.
Discussion
Before authorizing payment of costs of filing and pursuing a
protest, the Board must find an agency violation of statute or
regulation, and determine that the costs are reasonable and the
party appropriate. 40 U.S.C. 759(f)(5)(C) (1988); Sterling
Federal Systems, Inc. v. Goldin, 16 F.3d 1177, 1187 (Fed. Cir.
1994).
In opposing the protester's request, the agency maintains
that, even without the protest, the contracting officer would
have terminated for default the underlying contract if the
awardee delivered goods that did not conform to the Buy American
Act certification. "Moreover, it was not the Government that
violated statute, regulation, or delegation of authority, but
rather, the intervenor. The Board did imply otherwise: 'The
reasonable reliance or not of the contracting officer on the
certification does not affect the correctness or incorrectness of
the evaluation.'" Agency Response at 5-6 (citation omitted).
The protester significantly prevailed in its underlying
protest. The agency had made an award contrary to the
requirements of statute and regulation. The protester utilized
the protest process to bring to light the violation; the Board
revised the agency's procurement authority. The protester was
placed again in a position to obtain the award under the
protested procurement.
The view of the agency minimalizes the protest process. The
protester raised and pursued a protest issue as a contract
formation matter. It is irrelevant to the protest process that,
in the course of contract administration, the agency may take
corrective action. If, as the agency maintains, the contracting
officer were to terminate for default the protested contract, the
protester would not be in a similar position to obtain the award
under the solicitation. Moreover, despite the record developed,
the agency failed to take or propose any corrective action on its
own. It was the pursuit of the matter by the protester and the
Board imposed relief that caused the altered agency conduct.
Thus, the protester is an appropriate party to recover its
reasonable and reimbursable costs of filing and pursuing the
protest.
The requested costs for retained counsel (hourly fees and
disbursements) and for in-house disbursements are reasonable and
recoverable. Findings 3, 6.
The Board need not here resolve the broad question of the
reimbursability, or not, of costs of in-house efforts expended in
filing and pursuing a protest. See Sterling, 16 F.3d at 1188-89.
The Board may assume, without deciding, that in-house costs are
reimbursable. The record supports no recovery for the protester
because the costs and efforts are not here reasonable or
justified. Findings 4, 5. It is not reasonable to reimburse
this protester for the efforts of its bid coordinator and the
other employee. Lacking a basis in the record to formulate
recoverable costs for the president, the Board denies the request
for costs associated with his efforts. Rocky Mountain Trading
Co., GSBCA 8943-C (8845-P), 89-3 BCA 22,110, at 111,214, 1989
BPD 219, at 4 ("Without a basis to determine the reasonableness
of the hourly rate claimed by the president, we deny recovery
with respect to all amounts for his efforts.").
Decision
The Board GRANTS IN PART the protester's motion for recovery
of its costs of filing and pursuing the protest. The awarded
amount, $11,468.69, is to be paid in accordance with statute. 40
U.S.C. 759(f)(5)(C) (1988); 31 U.S.C. 1304 (1988). The Board
does not award $4,078.29, the remainder of the protester-
requested amount.
_________________________
JOSEPH A. VERGILIO
Board Judge
We concur:
_________________________ _________________________
STEPHEN M. DANIELS ANTHONY S. BORWICK
Board Judge Board Judge