GRANTED IN PART: January 11, 1993 GSBCA 11799-C(11635-P) GRUMMAN DATA SYSTEMS CORPORATION, Protester, v. DEPARTMENT OF THE AIR FORCE, Respondent. Peter L. Winik, Franklin G. Snyder, and James H. Barker of Latham & Watkins, Washington, DC, appearing for Protester. Clarence D. Long, III and Joseph M. Goldstein, Office of the General Counsel, Department of the Air Force, Washington, DC, and Richard C. Bean and Paul E. VanMaldeghem, Hanscom AFB, MA, appearing for Respondent. Before Board Judges NEILL, HYATT, and WILLIAMS. Board Judge WILLIAMS. On April 16, 1992, protester, Grumman Data Systems Corporation (Grumman), filed a motion for the award of costs incurred pursuing its protest challenging an award to Contel Federal Systems (Contel) by the Department of the Air Force (Air Force) for a computer network for the Joint Chiefs of Staff, known as the Joint Staff Automation for the Nineties (JSAN). Grumman Data Systems Corp. v. Department of the Air Force, GSBCA 11635-P, 1992 BPD 100 (Mar. 19, 1992). For the reasons stated below, we grant the motion in part and award Grumman its costs in the amount of $381,048.22. In essence, Grumman raised four grounds of protest: (1) the Air Force failed to make any meaningful cost-benefit analysis in awarding to a higher priced offeror; (2) the Air Force relied on a scheme of undisclosed technical evaluation criteria; (3) Contel's proposal failed to comply with a mandatory section of the request for proposals (RFP); and (4) the Air Force failed to conduct adequate discussions. The Board granted the protest in part, finding that the Air Force failed to perform a proper cost/technical tradeoff analysis. We returned the matter to the agency, requiring it to consider "whether the specific technical enhancements offered by Contel justified the higher cost, articulate and document the rationale for its conclusion, and either confirm award to Contel or terminate that award and then proceed with the procurement in accordance with statute and regulation." Id. at 47. Protester seeks reimbursement of protest costs in the amount of $457,459.22, which includes all of its costs of filing and pursuing the protest, including attorney fees. Of these costs, $264,705 are for attorney fees, based on a total of 1,260.5 hours billed at the firm's unitary hourly rate.[foot #] 1 Declaration of Peter L. Winik (Winik Declaration), 7-8. Remaining costs for other charges and expenses, including paralegal and other staff time, out-of-pocket expenses, and word processing are $92,700.28; expert consultant fees and expenses are $100,053.94.[foot #] 2 Winik Declaration, 9-11, 13. In addition to the $457,459.22, protester also seeks reimbursement for $24,192 in attorney fees associated with the preparation of its cost motion.[foot #] 3 Declaration of James H. Barker (Barker Declaration), 16. Costs for two paralegals and three research assistants account for $35,301 of the $92,700.28 attributed to other charges and expenses. Winik Declaration, 10. The billing rates for the paralegals were $80 and $95 per hour, and the rates for the research assistants ranged from $55 to $60 per hour. Id. The remaining "other charges" were recited as follows: ----------- FOOTNOTE BEGINS --------- [foot #] 1 The firm's unitary billing rate is premised on the expectation that there will be an efficient, normal mix of senior and junior attorney time on a given matter. Declaration of Peter L. Winik, 8. The respondent does not dispute either the accuracy or the reasonableness of the rate. [foot #] 2 The expert consultants advised litigation counsel on technical matters related to the protest. Winik Declaration, 11; Louis B. Clark Declaration, 7-8. None of the experts testified at the hearing. [foot #] 3 In its original motion for costs, protester claimed $7,602 in attorney fees for 36.2 hours expended pursuing the fee application. With the request for additional information and response to respondent's objections, protester incurred an additional expense of $15,078 for 69.8 hours. Winik Declaration, 13; Barker Declaration, 16. Protester also incurred $1,512 in attorney fees for 7.2 hours expended responding to a Board request for more information. Second Supplemental Declaration of James H. Barker, 4. ----------- FOOTNOTE ENDS ----------- Photocopying $20,327.82 (@$.14/pg.) Transcripts 15,101.55 Telephone 441.71 Facsimile 2,983.75[foot #] 4 Messenger services 2,031.20 Word processing 1,312.50 Secretarial overtime 3,132.50 Taxi/parking 921.11 Filing fees 550.00 Supplies 1,890.19 Postage 12.94 Air freight 484.15 Library/online research services 7,318.63 Meeting expenses/meals 891.23 TOTAL $57,399.28 Id. As supporting documentation for its cost claim, protester has submitted the declarations of Peter L. Winik, Esq., James H. Barker, Esq., and Mr. Louis B. Clark, along with a breakdown of hours billed by outside counsel. Protester's motion does not seek the recovery of costs attributed to Grumman's in-house counsel. On May 11, 1992, respondent filed a response to protester's motion for costs and requested further proceedings. Respondent objected to protester's motion for costs because the protest was granted on only one of four "distinctly different" grounds, citing Digital Equipment Corp., GSBCA 9285-C(9131-P), 89-3 BCA 22,181, 1989 BPD 248. Respondent requested that the Board direct protester to provide detailed information on the amounts claimed, including individual attorney, paralegal, and consultant time sheets, and expense information, and direct protester to segregate from its total costs those related directly to the sole issue on which protester prevailed. Respondent's Response at 2- 3. In the alternative, respondent requested that the Board reduce protester's claim to no more than twenty-five percent of the total sought by protester, or $116,265.31. Id. at 3. On June 1, 1992, protester filed a response to respondent's response to its motion for costs and, without Board order, provided a breakdown of costs incurred on an issue-by-issue basis. Protester's Response, Attachment 1. However, protester continued to argue that it is entitled to the full amount originally requested. Protester contends that because work performed in connection with the issues on which it did not prevail was directly relevant to the cost/technical trade-off ----------- FOOTNOTE BEGINS --------- [foot #] 4 Grumman was charged for facsimile transmissions at the rate of $1.25 per page. Second Supplemental Declaration of James H. Barker. ----------- FOOTNOTE ENDS ----------- issue, there is no basis for reducing the requested award. Protester's Response at 2. Protester further states that the three issues on which it did not prevail "closely overlapped and provided crucial support for the failure to conduct an adequate cost/technical tradeoff issue." Id. at 6. Protester asserts: The fundamental reason for the overlap of issues is that the three losing issues focused entirely on the perceived technical differences between Grumman and Contel. This analysis in turn provided the basis for the cost/technical tradeoff argument because Grumman was able to show that there were in fact only minor differences between the parties, which in turn illuminated the fact that no meaningful analysis of these differences was conducted. Id. Specifically, protester contends that the issue regarding undisclosed evaluation factors overlapped with the issue concerning inadequate discussions. Id. at 7. Protester argues that Grumman's inadequate discussions claim was based on its belief that it did not receive the same feedback with regard to several undisclosed evaluation factors, and that one of the alleged undisclosed evaluation factors was the precise mandatory requirement which Grumman claimed Contel did not meet.[foot #] 5 Id. According to protester, its demonstration concerning the differences which existed between the parties' proposals on these allegedly "undisclosed" technical factors led to its successful showing that the cost/technical tradeoff was not conducted properly. Id. at 7-8. Protester emphasizes that the unmet mandatory requirement issue was one of many factors whose evaluation demonstrated the lack of cost/technical tradeoff analysis undertaken by the Air Force in selecting Contel. Id. at 9. Protester further argues that in proving its case, Grumman presented differences between the proposals in a number of evaluated areas in order to show that such differences did not justify paying the higher price to Contel. Id. at 10. Protester thus disagrees with respondent's contention that Grumman is entitled to recover no more than twenty-five percent of its claimed costs. Id. at 12. Protester argues that much of the attorney work on the protest was of the "generic" type and is not capable of breakdown on an issue-by-issue basis.[foot #] 6 Id. According ----------- FOOTNOTE BEGINS --------- [foot #] 5 The specific mandatory requirement is at this juncture protected information. [foot #] 6 Among other things, protester lists "generic" attorney work as consulting with Grumman personnel, reviewing documents, attending suspension hearing and scheduling conference, preparing various filings, research on potential (continued...) ----------- FOOTNOTE ENDS ----------- to protester, the so-called "generic" attorney work makes up 1,008.36 hours of the total 1,260.5 hours spent on the protest. Id. at 13-14, Attachment 1. The remaining 252.14 hours of attorney work are broken down by protester in the following manner: Unmet Mandatory Requirement: 167.55 hours (or $31,185.50) Inadequate Discussions: 60.23 hours (or $12,648.30) Undisclosed Standards: 24.36 hours (or $5,115.60) Id. at 14-15, Attachment 1. With regard to "other charges and expenses," including such things as paralegal and other staff time, out-of-pocket expenses, and word processing charges, protester provides the following breakdown: Unmet Mandatory Requirement: $3,100 in paralegal costs Unmet Mandatory Requirement: $887 for library/on-line research charges Inadequate Discussion and Undisclosed Standards: $1,984 for library/on-line research charges Id. at 15-16, n.6, Attachment 1. On December 7, 1992, protester filed a supplement to its motion for costs stating that the Board's holding in Lockheed Missiles & Space Co. v. Department of the Treasury, GSBCA 11604-C(11362-P), 1992 BPD 276 (Sept. 30, 1992) (TMAC I), governs the outcome of this case. The Board granted respondent leave to respond to this supplement, and on December 17, 1992, respondent did so, complaining that the Board should not have permitted protester's "tardy" supplement, that counsel for protester had failed to produce their time slips, that the legal work on the various discrete issues had not been sufficiently segregated, and that the Board's decision in Sterling Federal Systems, Inc. v. National Aeronautics and Space Administration, GSBCA 10000- C(9835-P), 92-3 BCA 25,118, 1992 BPD 141, precludes recovery of consultant's fees. Protester, by letter dated December 17, 1992, replied that its June 1, 1992, filing had contained individual daily time breakouts of attorney hours billed and task descriptions transcribed from the time slips with only minor corrections or privilege redactions. By letter dated December 18, 1992, respondent reiterated its dissatisfaction with protester's failure to produce the time slips themselves and the insufficient segregation of issues. ----------- FOOTNOTE BEGINS --------- [foot #] 6 (...continued) legal theories, drafting discovery requests, responding to discovery requests, conferring with expert consultants, preparation for and taking of depositions, and preparing briefs. Protester's Response at 12-14. ----------- FOOTNOTE ENDS ----------- Discussion By statute, the Board is empowered to award protest costs, including reasonable attorney fees, and bid or proposal costs to an appropriate prevailing party. 40 U.S.C. 759(f)(5)(C) (1988). Recently, in TMAC I, 1992 BPD 276, the Board considered whether a partially successful protester was entitled to recover all of the costs incurred in pursuing its protest or whether it was entitled to only partial recovery of costs. In TMAC I, as in the present protest, protester challenged the manner in which the Government conducted a cost/technical tradeoff. The Board found the protester's claim that the Government did not properly conduct a cost/technical tradeoff very broad in scope and concluded that the non-successful issues involving the technical evaluations and method of scoring at least provided background information that was relevant to the successful claim. Id. at 4. Additionally, the Board has previously held that only where the unsuccessful claim is significant and readily severable from the issues on which the protester did prevail will we reduce an award of costs to account for the unsuccessful pursuit of collateral issues. See Planning Research Corp., GSBCA 10905-C(10694-P), et al., 91-3 BCA 24,159, 1991 BPD 147; Rocky Mountain Trading Co., GSBCA 9750-C(9569-P), 90-3 BCA 23,040, 1990 BPD 147. Moreover, "a reasonable rationale must exist for severing the costs associated with the pursuit of the unsuccessful issue from those incurred in pursuing the protest as a whole." Rocky Mountain Trading Co., 90-3 BCA at 115,675, 1990 BPD 147, at 2. Following the guidance of the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 435 (1983), where the Court found that rejection of, or failure to reach, certain grounds is not sufficient reason for reducing a fee, the Board is reluctant to view every argument raised in a protest as a distinct claim in considering whether to award costs. Planning Research Corp., 91-3 BCA at 120,880, 1991 BPD 147, at 4. The Board granted Grumman's protest based on a finding that the Air Force "violated the statutory mandate in 10 U.S.C. 2305(b)(4)(D) as well as the terms of the [request for proposals] by failing to consider price adequately, and in particular whether the price premium . . . was warranted." Grumman Data Systems Corp., 1992 BPD 100, at 41. With regard to the other three issues raised by protester, while we did not grant relief as to them, we are persuaded that they "at least provided background information that was relevant to the successful claim." TMAC I, 1992 BPD 276, at 4. Protester's presentation of the allegation that Contel failed to meet a mandatory requirement was directly related to the alleged failure of the Air Force to conduct a cost/technical tradeoff; it was a technical area where Grumman's proposal surpassed Contel's. Additionally, the successful and non-successful claims are not readily severable. See Planning Research Corp., 91-3 BCA at 120,879, 1991 BPD 147, at 4. The nature of protester's cost/technical tradeoff claim required a comprehensive review of the RFP requirements and how the parties offered to satisfy them, including the technical requirement which Contel allegedly failed to meet. In this case, therefore, it would not be appropriate to treat protester's successful and non-successful protest claims separately for purposes of an award of costs. Expert Consultant Fees The Board's holding in Sterling, 92-3 BCA 25,188, 1992 BPD 141, applies in this case and dictates that we may not award expert consultant fees. See Lockheed Missiles, 1992 BPD 276. In Sterling, a case considered by the full Board, a majority of Board members held that the Supreme Court's ruling in West Virginia University Hospitals, Inc. v. Casey, 111 S.Ct. 1138 (1991), precludes us from awarding protesters the costs incurred in retaining expert consultants. Fees charged by expert consultants for non-testimonial services are not compensable under the Brooks Act. Sysorex Information Systems, Inc. v. Department of the Treasury, GSBCA 10781-C(10642-P)-REIN, 1992 BPD 235 (Sept. 8, 1992). This being the case, protester's request for award of protest costs in the amount of $100,053 in expert consultant fees and expenses is denied. Reasonableness of Attorney Fees The hourly rate charged by protester's counsel, even as a unitary rate, is well within the range of hourly rates charged by law firms in the area in which the firm is located, Washington, D.C. See SMS Data Products Group, Inc. v. Department of the Treasury, GSBCA 10783-C(10644-P)-REIN, 1992 BPD 238 (Sept. 10, 1992); Sysorex, 1992 BPD 235, at 3; US Sprint Communications Co. Limited Partnership, Network Systems Division, GSBCA 10885-C(10684-P), 92-1 BCA 24,595, 1991 BPD 312. Respondent has not challenged the reasonableness of the hourly rate or the number of hours expended. Considering the complexity of issues involved in this protest, we do not find 1,260.5 hours to be unreasonable. Other Costs Paralegal and research assistant costs, secretarial overtime, facsimile transmission, local transportation, messenger service, computer research, photocopying, meals, postage, and delivery costs are properly considered within the rubric of attorney fees.[foot #] 7 Aspect Telecommunications v. Department of the Treasury, GSBCA 11399-C(11250-P), 1992 BPD 245 (Sept. 14, 1992); Sterling Federal Systems, 92-3 BCA ----------- FOOTNOTE BEGINS --------- [foot #] 7 Protester also sought recovery of "filing fees" in the amount of $550, but we assume this to be an error, since the Board does not charge filing fees; we have deducted this amount from our award. ----------- FOOTNOTE ENDS ----------- 25,118, 1992 BPD 141; US Sprint, 92-1 BCA 24,595, 1991 BPD 312. Moreover, "an award of attorney fees encompasses those reasonable and necessary out-of-pocket expenses of providing a lawyer's services that are not covered by the hourly rate because they cannot always be anticipated with any certainty in a given case." Aspect, 1992 BPD 245, at 3 (citing Bennett v. Department of the Navy, 699 F.2d 1140, 1145 (Fed. Cir. 1983)). These costs were incurred by counsel and billed separately to Grumman. Respondent has not challenged the reasonableness or the accuracy of "other costs" which protester seeks, and we find protester's "other costs" to be reasonable.[foot #] 8 Expense of Cost Motion It is well established that an appropriate prevailing party may recoup the expenses incurred in preparing, filing, and defending a cost motion before the Board. Aspect, 1992 BPD 245, at 8, 9. Protester seeks reimbursement for $24,192 in attorney fees for 115.2 hours expended on its fee application. The hours expended are reasonable and not excessive, redundant, or otherwise unnecessary. See Id. We grant them in full. Decision For the foregoing reasons, protester's motion for the award of costs is GRANTED IN PART. We grant protester's motion in the amount of $381,048.22, but deny its request for expert consultant fees in the amount of $100,053.94. ____________________________ MARY ELLEN COSTER WILLIAMS Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 8 Protester's request for reimbursement of facsimile transmission costs at a rate of $1.25 per page is an acceptable rate. See TMAC I, 1992 BPD 276; Aspect, 1992 BPD ___ ______ ______ 245. ----------- FOOTNOTE ENDS ----------- We concur: ____________________________ ____________________________ EDWIN B. NEILL CATHERINE B. HYATT Board Judge Board Judge