E&R, Inc.--Claim for Costs

B-255868.2 May 30, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights A protester may be reimbursed for the costs of a non-lawyer representative of filing and pursuing the protest based upon a contingent fee agreement that provides that costs are only payable if the protester obtains the contract or if costs are awarded. To the extent that the hours and rate claimed are adequately documented and reasonable. The claimed hourly rate of a protester's non-lawyer representative for filing and pursuing a sustained protest is considered excessive. A protester is not entitled to reimbursement of its costs of pursuing its cost claim before the General Accounting Office where the contracting agency's handling of the protester's claim was reasonable and expeditious. Inc. requests that we determine the amount it is entitled to recover from the Department of the Navy for the preparation of its bid under invitation for bids (IFB) No. View Decision Matter of: E&R, Inc.--Claim for Costs File: B-255868.2 Date: May 30, 1996 A protester may be reimbursed for the costs of a non-lawyer representative of filing and pursuing the protest based upon a contingent fee agreement that provides that costs are only payable if the protester obtains the contract or if costs are awarded, to the extent that the hours and rate claimed are adequately documented and reasonable. The claimed hourly rate of a protester's non-lawyer representative for filing and pursuing a sustained protest is considered excessive, where it exceeds the rates that would reasonably be charged in the representative's locale to perform similar services. A protester is not entitled to reimbursement of its costs of pursuing its cost claim before the General Accounting Office where the contracting agency's handling of the protester's claim was reasonable and expeditious. Attorneys DECISION E&R, Inc. requests that we determine the amount it is entitled to recover from the Department of the Navy for the preparation of its bid under invitation for bids (IFB) No. N62470-93-B-2366, and for filing and pursuing its protest in E&R, Inc., B-255868, Mar. 29, 1994, 94-1 CPD para. 218. In our prior decision, we sustained E&R's protest that the awardee's bid was not supported by a valid power of attorney, as required by the IFB. While ordinarily we would have recommended that the Navy terminate the awardee's contract for the convenience of the government, performance of the awardee's one-year contract had continued for nearly 6 months, so termination of the contract was impracticable. Accordingly, we found that E&R was entitled to its costs of bid preparation, and of filing and pursuing the protest. The parties have agreed that E&R should be reimbursed $1,969.08 for its reasonable costs of bid preparation. E&R requests reimbursement of an additional $9,905.04, consisting of $7,205.04 for its costs of filing and pursuing the protest, and $2,700 for its costs of pursuing the claim for costs. As explained below, we find that E&R should be reimbursed $4,805.04 for its costs of filing and pursuing the protest. 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 pursuit of the protest. Data Based Decisions, Inc.--Claim for Costs, 69 Comp.Gen. 122 (1989), 89-2 CPD para. 538. In support of its claimed costs for pursuing the protest, E&R has provided the fee agreement entered into between the protester and its non-lawyer representative (Mr. Phillip Johnson of Federal Contract Specialists, Inc.), as well as billing statements that list, by date, the work performed by Mr. Johnson and the amount of time spent. Specifically, the billing statements show that Mr. Johnson performed 32 hours of work on the protest, at a rate of $225 per hour; the statements also show long-distance telephone charges of $5.04. The fee agreement between E&R and its representative provided that Federal Contract Specialists would "appeal" the denial of E&R's agency-level protest to the General Accounting Office and that: "[s]hould the appeal be upheld, we will bill your company at our customary rate of $225 per hour for time spent by our firm pursuing the appeal on the condition you are awarded the contract and/or the Comptroller General determines that you are eligible for reimbursement of costs involving the appeal. We estimate the filing expenses not to exceed $10,000." The Navy objects to the payment of any protest costs to E&R that are based upon the contingency fee agreement, citing 10 U.S.C. sec. 2306(b) and Federal Acquisition Regulation (FAR) Subpart 3.4. The Navy also argues the claimed hourly rate of $225 per hour is unreasonable.