e-LYNXX Corporation--Costs, B-292761.2, August 12, 2004

B-292761.2 Aug 12, 2004 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights e-LYNXX Corporation requests that we recommend the amount it should be allowed to recover from the Government Printing Office (GPO) for attorney fees associated with filing and pursuing its protest in we recommend that, in addition to the costs that the agency has previously reimbursed eLYNXX, the protester be reimbursed $11,142.19 for the time spent on this protest by its general counsel. View Decision B-292761.2, e-LYNXX Corporation--Costs, August 12, 2004 Decision Matter of: e-LYNXX Corporation--Costs File: B-292761.2 Date: August 12, 2004 Anthony W. Hawks, Esq., for the protester. Roy E. Potter, Esq., and Jennifer R. Seifert, Esq., Government Printing Office, for the agency. Henry J. Gorczycki, Esq., and Ralph O. White, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. A protester's request for reimbursement of attorney fees based on an assertion that the protester had an oral agreement with its in-house general counsel permitting him to work on the protest as outside legal counsel, on a contingency-fee basis, is denied where there is no contemporaneous evidence to support the claimed oral agreement; where the general counsel submitted his filings on the protester's letterhead, and signed those filings as an officer of the firm, not as outside counsel; and where the protester paid the general counsel his salary as an employee during the time he was working on the protest. 2. A protester's salary costs for the time an employee devoted to pursuing a protest to our Office are reimbursable where the record shows that the employee spent the time claimed pursuing the protest, the amount of the time was reasonable, and the cost of the employee's time to the protesting firm can be calculated with reasonable accuracy. Where a salaried employee worked more than 40 hours per week, but is not compensated for time worked in excess of 40 hours, reimbursable protest costs are determined based on the proportionate share of the employee's weekly salary attributable to work on the protest, and not on the employee's standard hourly rate. DECISION e-LYNXX Corporation requests that we recommend the amount it should be allowed to recover from the Government Printing Office (GPO) for attorney fees associated with filing and pursuing its protest in e-LYNXX Corp. , B-292761, Dec. 3, 2003, 2003 CPD 219. As discussed below, we recommend that e-LYNXX be reimbursed11,142.19 for the time spent on its protest by its in-house attorney. In our prior decision, we sustained e-LYNXX's protest because the agency's source selection decision was unreasonable in that it failed to meaningfully consider eLYNXX's lower quotation price and because the selection official lacked a sufficient understanding of the agency's requirement to perform a rational price/technical tradeoff. Additionally, the record did not contain sufficient evidence to establish certain disputed terms of e-LYNXX's quotation, which were identified during oral presentations, but not adequately documented. We recommended that the agency reopen the competition, establish the content of quotations by obtaining either oral or written submissions, conduct a new evaluation and source selection decision, and reimburse e-LYNXX its costs of filing and pursuing its protest. In its first of two requests for reimbursement filed with the agency, e-LYNXX identified three categories of protest costs: (1) employee labor time totaling332.48, for an assistant to the company's president; (2) out-of-pocket expenses totaling $2,390.47, for travel and lodging, transcript costs and the costs of materials and copying; and (3) attorney fees totaling $36,560. The agency promptly paid e-LYNXX the sum of $2,722.95 for the employee labor time and out-of-pocket expenses, but objected to paying the protester's claim for attorney fees on the basis that no such fees were incurred. With respect to the attorney fees in its initial request for reimbursement, e-LYNXX explained that it was represented in its protest by its in-house general counsel (who is also a vice-president for the firm), but claimed that its general counsel was acting as an outside counsel for this protest. The request stated that the company's general counsel maintains a private law practice that includes representing other firms before the GPO Board of Contract Appeals, and in bid protests, and explained that its general counsel usually supervised company litigation activities, rather than provide them himself. As a result, the company concluded that serving as counsel for this protest was outside the scope of the general counsel's employment, as doing so would consume a significant amount of time beyond his normal work hours.