B-296697.2, Intercon Associates, Inc.--Costs, June 14, 2006

B-296697.2 Jun 14, 2006 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Intercon Associates, Inc. requests that we recommend reimbursement of its costs--in the amount of $76,014.06--of successfully pursuing its protest of the terms of request for proposals (RFP) No. GS00V05PDR0021, issued by the General Services Administration (GSA) for an electronic forms (e-forms) creation capability. GSA's position is that the reimbursement should be limited to $25,328.03. We deny the claim for the requested amount and recommend reimbursement in the amount calculated by the agency, $25,328.03. View Decision B-296697.2, Intercon Associates, Inc.--Costs, June 14, 2006 Decision Matter of: Intercon Associates, Inc.--Costs File: B-296697.2 Date: June 14, 2006 Patrick K. O'Keefe, Esq., Sidley Austin LLP, for the protester. John E. Cornell, Esq., General Services Administration, for the agency. Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. GAO does not recommend reimbursement of costs incurred in filing and pursuing unsuccessful protest issue where issue is readily severable from successful issue, i.e., is based on different set of facts and legal theory. 2. Agency's use of a –page counting— method, that is, counting pages in protest brief that discussed successful protest issue, is a reasonable approach to determining amount of protest costs to be reimbursed, in absence of more probative evidence. DECISION Intercon Associates, Inc. requests that we recommend reimbursement of its costs--in the amount of $76,014.06--of successfully pursuing its protest of the terms of request for proposals (RFP) No. GS00V05PDR0021, issued by the General Services Administration (GSA) for an electronic forms (e-forms) creation capability. GSA's position is that the reimbursement should be limited to $25,328.03. We deny the claim for the requested amount and recommend reimbursement in the amount calculated by the agency, $25,328.03. BACKGROUND In protesting the terms of the RFP, Intercon raised two allegations: the RFP was unduly restrictive because it unnecessarily precluded it from competing for the requirement, and the agency was biased in favor of another competitor, Formatta Corporation. We developed the record, and in the course of that effort, Intercon filed an objection to the agency's document production after receiving the agency report. The thrust of Intercon's objection was that the agency had not provided adequate discovery relating to its bias allegation. In response, the agency advised our Office that it had completed its evaluation of proposals during the pendency of Intercon's protest, that it had determined that an offeror other than Formatta was the apparent successful offeror, and that, accordingly, Intercon's bias argument and related discovery request were essentially academic. We agreed with the agency and did not call for further document production in connection with Intercon's bias allegation. Thereafter, we conducted an –outcome prediction— alternative dispute resolution (ADR) procedure, during which our attorney advised the agency that he believed that GAO would agree with the protester that the solicitation was unduly restrictive. He also noted that, because the record had been fully developed, he believed GAO would recommend that Intercon be reimbursed the costs associated with filing and pursuing its protest, should it be necessary to issue a decision. In the wake of the ADR procedure, the agency advised our Office that it intended to withdraw the statement of work included in the solicitation and issue a revised solicitation; the agency also stated that it would entertain Intercon's request for protest costs. In light of this, we dismissed Intercon's protest as academic. (B-296697, Sept. 27, 2006.) Intercon tendered a certified claim for its protest costs to the agency, requesting reimbursement of $76,014.06. After reviewing the claim, GSA offered to reimburse Intercon $25,328.03. The agency disallowed $1,818.75 of the claimed amount on the basis that those costs were incurred in connection with –lobbying— activities engaged in by Intercon in an apparent effort by the firm to achieve settlement with the agency. Intercon concedes the propriety of disallowing this amount. Intercon Request for Costs, Feb. 8, 2006, at 3. The agency disallowed $48,867.28 of the claimed amount on the ground that this amount related to the bias allegation; because Intercon did not prevail on this issue, and because the issue was clearly severable from the unduly restrictive specification issue, the agency's view was that there was no basis for reimbursing these costs. SEVERABILITY OF PROTEST ISSUES Intercon takes issue with GSA's decision to disallow $48,867.28 of its claimed costs.