TRS Research--Costs, B-290644.2, June 10, 2003

B-290644.2 Jun 10, 2003 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Protester's request for recommendation that it be reimbursed costs of pursuing protest is denied where protester fails to document the reasonableness of hourly rate claimed for attorney's services and fails to provide any evidence that it is obligated to pay the legal fees claimed regardless of whether they are recovered from the government. We recommended that the agency conduct the required statutory and regulatory reviews to determine whether the bundling of requirements was justified. The protester was advised to submit to the contracting agency. The legal fees were calculated by multiplying the identified time by a claimed hourly rate of $425. Was based on what appeared to be an unreasonably high hourly rate. View Decision TRS Research--Costs, B-290644.2, June 10, 2003 DIGEST Attorneys DECISION TRS Research requests that we recommend that the Department of the Army, Military Traffic Management Command (MTMC), reimburse the firm $17,425 for its costs of filing and pursuing its protest under request for proposals (RFP) No. DAMT01-02-R-0028, for the lease of intermodal container equipment and provision of related program management services. We deny the request. This claim arises from a protest filed by TRS Research alleging that the agency had improperly bundled its requirements. By decision of September 13, 2002, we sustained the protest, finding that the agency had bundled the procurement without complying with the requirements of the Small Business Act, at 15 U.S.C. Sec. 632(o)(2) (2000), and its implementing regulations, at 13 C.F.R. Sec. 125.2(d) (2002). We recommended that the agency conduct the required statutory and regulatory reviews to determine whether the bundling of requirements was justified, revise the RFP, if appropriate, and request new proposals. We also recommended that the protester be reimbursed the costs of filing and pursuing the protest, including attorneys' fees. The protester was advised to submit to the contracting agency, within 60 days of receiving our decision, its detailed claim of the time expended and costs incurred in pursuing its protests. See Bid Protest Regulations, 4 C.F.R. Sec. 21.8(f) (2003). TRS submitted its claim to the agency on October 2, seeking reimbursement of legal expenses associated with pursuit of the protest. The claim briefly set out information regarding the time expended by the attorney, the type of work performed, and the dollar amount claimed for the work. The legal fees were calculated by multiplying the identified time by a claimed hourly rate of $425. The claim sought a total of $17,722.50 in protest costs. By letter of November 12, the contracting officer notified protester's counsel that the agency believed that the claim contained charges for work unrelated to the protest or otherwise unallowable, and was based on what appeared to be an unreasonably high hourly rate. Although she did not question the overall amount, the contracting officer expressed concern that all of the legal work performed was charged at a rate of $425 for a senior attorney. In her opinion, it would have been more reasonable to charge the work at a lower associate attorney rate, with a limited amount of work charged at the higher supervisory attorney rate. Based upon her research of claims decisions issued by our Office, the contracting officer concluded that a rate of $425 seemed excessive. For purposes of settling the matter, MTMC offered payment of TRS's protest costs at an hourly rate of $350, for a total payment of $13,125. On November 15, TRS refused the agency's offered payment amount and rejected the suggested hourly rate of $350. Counsel for TRS explained that he was the sole attorney on the protest, so all of the legal services performed are charged at his senior attorney hourly rate of $425. After deleting some charges that TRS counsel acknowledged were erroneously included in the initial claim, TRS submitted a revised claim for $17,425 in protest costs. In her response of November 21, the contracting officer explained that, in order for her to assess the reasonableness of the claimed hourly rate of $425, the protester needed to provide proof that the claimed rate is the one customarily charged for his services and that it is within the bounds of rates charged by senior attorneys for similar work in the Philadelphia area, where counsel for TRS works. She also requested proof that TRS had a firm obligation to pay for the claimed legal services at the claimed hourly rate, regardless of whether payment was recovered from the agency; in this regard, the contracting officer suggested that the firm submit a copy of paid invoices for the claimed services. By letter of November 26, TRS counsel certified that the amount claimed had been billed to his client, but stated that the invoice had not yet been paid.