University of Dayton Research Institute--Costs
B-296946.7: Oct 23, 2006
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University of Dayton Research Institute (UDRI) requests that our Office recommend the amount the Department of the Air Force should reimburse UDRI for the costs of filing and pursuing a protest UDRI previously filed with our Office; the agency responded to UDRI's protest by taking corrective action. See University of Dayton Research Inst., B-296946, Oct. 19, 2005. Following our dismissal of UDRI's protest, UDRI submitted a request to this Office, seeking our recommendation that the agency reimburse UDRI for the costs it had incurred in filing and pursuing the protest. In response, the agency stated that it intended to reimburse UDRI for its reasonable protest costs. Accordingly, we closed our file on UDRI's request, pending the parties' agreement regarding the properly reimbursable amount. The parties have been unable to reach agreement on that issue. On June 14, 2006, UDRI submitted a request that this Office recommend the proper amount of reimbursable costs.
We recommend that the Air Force reimburse UDRI $74,912.17 for the costs of filing and pursuing its protest.
B-296946.7, University of Dayton Research Institute--Costs, October 23, 2006
Decision
Matter of: University of Dayton Research Institute--Costs
Daniel A. Bellman, Esq., and William R. Wernet, Esq., for the protester.
Lt. Col. Sharon K. Sughru, Department of the Air Force, for the agency.
Eric M. Ransom and Glenn G. Wolcott, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protester may be reimbursed for its protest expenses only to the extent that they are adequately supported by documentation reflecting the costs incurred.
2. Protester is not entitled to recover costs associated with deciding whether to protest, or costs associated with a settlement.
3. Protester is not entitled to reimbursement for time spent pursuing its claim for costs, where delay in the agency's consideration of claim was caused by protester's inability or unwillingness to perfect its claim.
DECISION
University of Dayton Research Institute (UDRI) requests that our Office recommend the amount the Department of the Air Force should reimburse UDRI for the costs of filing and pursuing a protest UDRI previously filed with our Office; the agency responded to UDRI's protest by taking corrective action.[1]
Following our dismissal of UDRI's protest, UDRI submitted a request to this Office, seeking our recommendation that the agency reimburse UDRI for the costs it had incurred in filing and pursuing the protest. In response, the agency stated that it intended to reimburse UDRI for its reasonable protest costs. Accordingly, we closed our file on UDRI's request, pending the parties' agreement regarding the properly reimbursable amount. The parties have been unable to reach agreement on that issue. On
We recommend that the Air Force reimburse UDRI $74,912.17 for the costs of filing and pursuing its protest.
UDRI initially submitted its cost claim to the agency on
Nonetheless, in its June 5 communication with UDRI, the agency declined to accept as reimbursable the costs claimed for UDRI personnel, noting that UDRI had not provided documentation supporting those costs. The agency also challenged UDRI's calculation of attorneys' fees to the extent they exceeded the $150 per hour rate limitation for successful large business protesters imposed by the Competition in Contracting Act of 1984 (CICA).[2] Finally, the agency challenged UDRI's recovery of costs that were incurred after this Office's
On
On June 14, the agency reiterated its prior position with regard to the portions of UDRI's claim it considered non-reimbursable. Later that day, UDRI filed its request with this Office, seeking our recommendation regarding the properly reimbursable amount.
Thereafter, in the interest of facilitating an agreement, this Office conducted a conference call with counsel for the parties. Following the conference call, UDRI submitted another revised claim with more extensive supporting information, including salary data for UDRI personnel, seeking total reimbursement of $77,432.87.[3] UDRI Revised Claim for Protest Costs,
The agency argues that, to the extent UDRI's claim reflects costs for pre-protest activities, settlement activities, and cost claim preparation activities, UDRI should not be reimbursed. Revised Agency Response,
Based on our review of the record, we conclude that 3.5 hours for Mr. Bellman, reflecting a cost of $667.45, were billed on
We also agree with the agency that the costs claimed for 4.5 of Mr. Bellman's hours, billed on August 11, 12, and 16, 2005, reflecting a cost of $862.52, were incurred in connection with drafting a letter to the agency, shortly after the protest had been filed, outlining the advantages of protest settlement. Claim for Protest Costs, Tab 1, at 12. We have held that time spent discussing settlements is not generally considered to be time spent in pursuit of the protest. Blue Rock Structures, Inc.,--Costs, supra, at 5. Accordingly, we do not recommend that the agency reimburse UDRI for these attorneys' fees.
Finally, UDRI's claim separately seeks reimbursement of $990.10, reflecting time spent on preparation of UDRI's costs claim.[5] UDRI Revised Claim,
Accordingly, we recommend that the agency reimburse UDRI a total of $74,912.17, representing $43,433.01 for Mr. Bellman's attorney's fees,[6] $16,880 for Mr. Wernet's attorney's fees, $12,770.07 for UDRI's personnel costs, and $1,829.09 for miscellaneous legal costs.
Gary L. Kepplinger
General Counsel
[1] The protest at issue here was filed with our Office in July 2005. In October 2005, following various conference calls conducted by this Office, the agency stated that it was taking corrective action. Accordingly, on
[2] Under CICA, as amended, where the Comptroller General recommends reimbursement of a successful protester's costs of filing and pursuing a protest, including reasonable attorneys fees, such fees may not exceed $150 per hour unless the agency determines, based on the recommendation of the Comptroller General on a case by case basis, that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee. 31 U.S.C. sect. 3554(c)(2)(B)(2000). In submitting its request to our Office, UDRI argued, among other things, that because of the limited number of qualified attorneys in
[3] UDRI's July 31 submission reflected a reduction in attorney fee rates, consistent with the CICA cap as adjusted by the Department of Labor's consumer price index, as well as elimination of fees for certain non-protest related activities. More specifically, UDRI's revised claim reflected attorneys fees of $61,842.98 ($44,962.98 for Mr. Bellman and $16,880 for Mr. Wernet), $12,770.70 for UDRI personnel costs, $1,829.09 for miscellaneous legal expenses, and $990.10 for costs incurred in pursuing UDRI's cost claim.
[4] Specifically, agency has agreed to reimbursement of $38,950.14 in attorney fees for Mr. Bellman, $16,880 in attorney fees for Mr. Wernet, $12,770.70 for UDRI's personnel costs, and $1,829.09 for miscellaneous legal expenses.
[5] Following submission of its
[6] $44,962.98, less $667.45 and $862.52, as discussed above.
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