B-296783.4; B-296783.5, Department of the Army; ITT Federal Services International Corporation--Costs, April 26, 2006

B-296783.4; B-296783.5, Department of the Army; ITT Federal Services International Corporation--Costs, April 26, 2006 TITLE: B-296783.4; B-296783.5, Department of the Army; ITT Federal Services International Corporation--Costs, April 26, 2006 BNUMBER: B-296783.4; B-296783.5 DATE: April 26, 2006 ********************************************************************************************************************* B-296783.4; B-296783.5, Department of the Army; ITT Federal Services International Corporation--Costs, April 26, 2006 Decision Matter of: Department of the Army; ITT Federal Services International Corporation--Costs File: B-296783.4; B-296783.5 Date: April 26, 2006 Kevin P. Connelly, Esq., Seyfarth Shaw, for the protester. Nancy J. Williams, Esq., U.S. Army Corps of Engineers, 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. Where successful protester's claim for attorneys' fees includes request for reimbursement at hourly rate above generally applicable $150 statutory limit based on increase in cost of living, higher rate paid should be based on the consumer price index for all items rather than the index for legal services. 2. Reimbursement of protest costs associated with use of consultant is limited to highest rate of pay for a federal employee (GS-15, step 10), even where consultant billed at higher rate. DECISION The Department of the Army and ITT Federal Services International Corporation request our recommendation concerning ITT's claim for protest costs, filed in connection with our decision sustaining ITT's protest against the award of a contract to Kellogg, Brown & Root Services, Inc. for logistics support services. ITT Fed. Servs. Int'l Corp., B-296783, B-296783.3, Oct. 11, 2005, 2006 CPD para. __.[1] In addition to corrective action, we recommended that the Army reimburse ITT its costs of filing and pursuing the protest, including reasonable attorneys' fees. The Army objects to the amounts claimed for ITT's attorneys and consultant. ATTORNEYS' FEES Under the Competition in Contracting Act of 1984 (CICA), as amended, 31 U.S.C. sect. 3554(c)(2)(B) (2000), successful protesters that are not small businesses are limited in their recovery of attorneys' fees to $150 per hour, except to the extent that the agency determines, based on a recommendation from our Office on a case-by-case basis, that "an increase in the cost of living" or other special factors justify a higher hourly rate. In its protest cost claim filed with the agency, ITT requests that it be reimbursed its attorneys' fees at a rate of $238 per hour, to account for an increase in the cost of living. ITT calculated this upward adjustment using the Department of Labor's (DOL) Consumer Price Index for All Urban Consumers, U.S. City Average for Legal Services (CPI-L). The agency concedes that ITT is entitled to some cost of living adjustment, but argues that the increase should be calculated based on DOL's Consumer Price Index for All Urban Consumers, U.S. City Average for All Items (CPI-U); according to the agency's calculations, this would result in a rate of $192.12 per hour. In Sodexho Mgmt., Inc.--Costs, B-289605.3, Aug. 6, 2003, 2003 CPD para. 136 at 37-43, we discussed for the first time the section 3554 ceiling on attorneys' fees and the cost of living adjustment. We found that the statute contemplates an increase in the specified $150 per hour rate in order to offset any decrease in the value of the rate due to inflation, Sodexho Mgmt., Inc.--Costs, supra, at 41, and that the appropriate cost of living increase should be determined with reference to DOL's CPI. While we did not require application of a particular CPI--stating "[w]e decline to impose a requirement that a claimant do more than request an adjustment and present a basis upon which the adjustment should be calculated," id.--we applied the CPI-U in determining the appropriate adjustment. In doing so, we noted that this approach was consistent with that used by the courts in calculating cost of living increases in attorneys' fees claimed under an identical reimbursement provision in the Equal Access to Justice Act (EAJA), 28 U.S.C. sect. 2412(d)(2)(A). Sodexho Mgmt., Inc.--Costs, supra, at 43 n.33. The Army cites Sodexho in asserting that the CPI-U, rather than the CPI-L, should be used here, because it is a measure of the increase in the cost of living overall, as opposed to the cost of obtaining legal representation.