Department of the Army--Modification of Remedy, B-292768.5, March 25, 2004

B-292768.5 Mar 25, 2004 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Need not be allocated between protest issue that was sustained and issues that were not addressed or denied in decision where all issues were related to the same core allegation. Which was sustained. Since issues not addressed or denied were not distinct and severable from the sustained issue. Attorneys' fees relating to those issues are reimbursable. The agency contends that it should not be required to pay attorneys' fees concerning protest issues on which the protester was unsuccessful. Was unreasonable and that the resulting award decision was improper. We found that while AMCOM's evaluation of the offerors' technical proposals was reasonable and consistent with the solicitation's evaluation factors. View Decision Department of the Army--Modification of Remedy, B-292768.5, March 25, 2004 DIGEST Attorneys DECISION The Department of the Army requests that our Office modify our decision, Continental RPVs, B-292768.2, B-292768.3, Dec. 11, 2003, 2004 CPD Para. __ , insofar as that decision recommended that the protester be reimbursed the costs of filing and pursing its protests, including reasonable attorneys' fees. The agency contends that it should not be required to pay attorneys' fees concerning protest issues on which the protester was unsuccessful. We affirm our decision. Continental protested the award of a contract to Griffon Aerospace, Inc. under request for proposals (RFP) No. DAAH01-02-R-0158, issued by the Army Aviation and Missile Command (AMCOM), Department of the Army, for the acquisition of an aerial remotely piloted vehicle target (RPVT) system and services. Continental argued that AMCOM's evaluation of proposals, including the evaluation of Griffon's past performance, was unreasonable and that the resulting award decision was improper. We denied Continental's protest in part and sustained it in part. Specifically, we found that while AMCOM's evaluation of the offerors' technical proposals was reasonable and consistent with the solicitation's evaluation factors, the agency's evaluation of Griffon's past performance was not reasonable. /1/ In light of our determination that the agency's evaluation of Griffon's past performance was unreasonable, and that a new evaluation and source selection decision were necessary, our decision did not address Continental's protest to the extent it claimed that AMCOM's best value determination was also flawed. We recommended that the agency reevaluate Griffon's past performance, make a new source selection decision in accordance with the terms of the RFP if necessary, and that Continental be reimbursed its costs of filing and pursuing its protest, including reasonable attorneys' fees. The agency now requests that we modify our recommendation with respect to the award of protest costs. Specifically, the Army argues that Continental is not entitled to reimbursement of all of its protest costs, and Continental should recover only those reasonable costs relating to the protest issue that was sustained. Under the Competition in Contracting Act of 1984 (CICA), as amended, 31 U.S.C. Sec. 3554(c)(1)(2000), our Office may recommend that the protester be reimbursed the costs of filing and pursuing the protest, including reasonable attorneys' fees, where we find that a solicitation or the award of a contract does not comply with a statute or regulation. This is to relieve parties with valid claims of the burden of vindicating the public interests that Congress seeks to promote. TRS Research--Costs, B-290644.2, June 10, 2003, 2003 CPD Para. 112 at 3; Parmatic Filter Corp.--Costs, B-285288.5, Aug. 27, 2001, 2001 CPD Para. 148 at 3. As a general rule, we consider a successful protester entitled to costs incurred with respect to all issues pursued, not merely those upon which it prevails. AAR Aircraft Servs.--Costs, B-291670.6, May 12, 2003, 2003 CPD Para. 100 at 9; Price Waterhouse--Claim for Costs, B-254492.3, July 20, 1995, 95-2 CPD Para. 38 at 3; Data Based Decisions, Inc.--Claim for Costs, B-232663.3, Dec. 11, 1989, 89-2 CPD Para. 538 at 4. In our view, limiting recovery of protest costs in all cases to only those issues on which the protester prevailed would be inconsistent with the broad, remedial congressional purpose behind the cost reimbursement provisions of CICA. AAR Aircraft Servs.--Costs, supra; TRESP Assocs., Inc.--Costs, B-258322.8, Nov. 3, 1998, 98-2 CPD Para. 108 at 2. Nevertheless, failing to limit the recovery of protest costs in all instances of partial or limited success by a protester may also result in an unjust award determination. Accordingly, in appropriate cases we have limited the award of protest costs to successful protesters where a part of their costs is allocable to a protest issue that is so clearly severable as to essentially constitute a separate protest.