__________________________________ GRANTED IN PART: February 15, 1996 __________________________________ GSBCA 13266-C(12999-P) COLUMBIA SERVICES GROUP, INC., Applicant, v. DEPARTMENT OF ENERGY, Respondent. John R. Tolle and William T. Welch of Barton, Mountain & Tolle, McLean, VA, counsel for Applicant. Mary D. Copeland, Wendy E. Ojeda, and Nicole Porter, Office of Chief Counsel, Department of Energy, Oak Ridge, TN, counsel for Respondent. Before Board Judges PARKER, VERGILIO, and GOODMAN. VERGILIO, Board Judge. On May 5, 1995, Columbia Services Group, Inc. filed an application to recover its costs of filing and pursuing its protest granted in part by the Board and of preparation and pursuit of this cost application. As amended, Columbia seeks to recover $82,110. The respondent, the Department of Energy, objects to various items in the request for recovery. The Board awards Columbia $41,899 and denies the remainder of the requested amount. The Board reduces the requested retained-counsel fees and expenses because of the numerous unsuccessful and segregable issues of protest pursued by the protester throughout the proceedings. The Board concludes that the record does not substantiate the requested hourly or burdened rates of in-house employees, such that those costs are denied. The record does not substantiate either the requested general and administrative (G&A) rate sought or its application to the charges of retained counsel, the burdened direct labor rates, transcription services (deposition and hearing transcripts) or travel-related expenses. The Board denies recovery of the mark- up amount. Findings of Fact 1. In an opinion issued on December 8, 1994, the Board granted in part the protest of Columbia. Columbia Services Group, Inc. v. Department of Energy, GSBCA 12999-P, 95-2 BCA 27,868, 1995 BPD 153 (1994). As detailed in the opinion, the Board granted one count (the agency improperly excluded Columbia from the competitive range) and portions of two counts (the agency-found weaknesses in one aspect of the protester's proposal departed from the solicitation; and the agency did not consistently evaluate particular aspects of the protester's proposal and that of an offeror within the competitive range in two of five evaluation criteria). The Board denied the remainder of the counts which were substantive, pursued through the hearing on the merits and subsequent briefing, and raised factual matters largely discrete from those issues on which Columbia prevailed. 2. As amended, Columbia seeks to recover $82,110 as its costs of filing and pursuing the protest and this cost application. Columbia breaks down its costs as follows: retained counsel $44,232 hourly fees $ 726 expenses $44,958 total[foot #] 1 in-house costs and expenses $ 8,285 in-house employee hourly rates for hours worked $10,349 stated overhead (inclusive of fringe) of 124.92% $ 1,578 travel-related expenses for depositions $ 4,321 transcription services (depositions and hearing) $44,958 retained counsel fees and expenses $69,491 total labor and other direct costs $12,619 G&A at 18.16% $82,110 TOTAL Applicant's Motion (May 5, 1995); Applicant's Corrected Billing and Summary of Costs (June 28, 1995). 3. The amount for hourly fees of retained counsel sought by Columbia is less than the total billed amount for filing and pursuing the protest (inclusive of the cost application). ----------- FOOTNOTE BEGINS --------- [foot #] 1 The request for this amount erroneously transcribes a figure from a bill. The supporting documentation sums to $44,978, the figure used by the Board for purposes of determining the appropriate recovery. ----------- FOOTNOTE ENDS ----------- Columbia states that costs associated with "allegations concerning the DPA [delegation of procurement authority--a ground of protest denied by the Board] are not included in this fee application as they are distinct and can be segregated from the claims upon which the protest was successful." Applicant's Motion at 7. Columbia recognizes that it has not attempted to segregate fees associated with a period of billed effort devoted to the DPA and other issues. "Even a cursory review of the entries [the agency] marked, shows that small amount of DPA time remaining is intermingled with other time that should be fully recovered." Applicant's Response at 4 (June 26, 1995). The amount requested includes costs for all other unsuccessful grounds of protest. 4. Based upon a review of the bills with daily logs of retained counsel efforts, as well as the submissions, transcripts, and other materials in the underlying protest and this cost application, the Board concludes that $36,000 represents a reasonable figure for reimbursement for the efforts of retained counsel relating, directly or indirectly, to the issues on which Columbia prevailed. 5. In support of the requested recovery, the President/CEO of Columbia certifies under oath that the Protest costs claimed in this application are made in good faith, are true and accurate to the best of my knowledge and belief and that the amount claimed accurately reflects the costs directly incurred in support of Columbia [in support of the filing and pursuing of the underlying protest]. Applicant's Motion, Exhibit 8. The record contains neither explanation nor support for the hourly rates of the four Columbia employees for whose effort Columbia seeks reimbursement. The record does not indicate if any or all of the individuals (legal counsel, the vice president of operations, a contract administrator, and administrative support) are salaried or hourly employees or how the rate was derived. 6. The record is devoid of explanation or support for the 124.92% overhead rate, said to include fringe benefits, applied to direct labor amounts. Moreover, the daily time sheets of the four employees principally, or exclusively, allocate the individual's hours between the protest, overhead and/or G&A. Applicant's Motion, Exhibit 8; Applicant's Response, Exhibits C, D, E, F. Because at least a portion of employee efforts appear to be allocated to overhead and it is unclear how the overhead rate was determined, the record does not permit the Board to make an affirmative determination that there is a consistency in the treatment of the protest efforts as direct costs and the application of the overhead rate to the direct labor hours. 7. The travel-related expenses and costs of transcripts are supported in the record by entries on a travel expense account form and bills from transcription services, respectively. Applicant's Motion, Exhibit 8. All of the requested expenses are reasonable and related to the protest. 8. The record is devoid of explanation or support for the 18.16% G&A rate or its application to any of the requested costs (that is, the charges of retained counsel, already-burdened direct labor, direct costs for travel-related expenses, and transcription services). As noted above, the daily time sheets of the four employees principally, or exclusively, allocate the individual's hours between the protest, overhead and/or G&A. Applicant's Motion, Exhibit 8; Applicant's Response, Exhibits C, D, E, F. The accounting practices of Columbia are unexplained in the record, such that the Board cannot make an affirmative determination that there is a consistency in the treatment of the protest efforts as direct costs and the application of the G&A rate to the direct labor hours or any of the other charges to which it is applied. Discussion The underlying protest was filed before the effective date of the provisions of the Federal Acquisition Streamlining Act; accordingly, those provisions do not apply to this application. 40 U.S.C. 759(f)(5)(C) (1994); Rules 1(a), 35 (May 1995). The agency seeks to reduce the requested recovery for effort relating to the challenge involving the delegation of procurement authority (in addition to that which Columbia excluded from its requested amount) and involving other unsuccessful protest grounds the agency asserts were severable. Additionally, the agency contends that the record is insufficient to support the requested in-house costs of direct labor--in terms of some of the hours of effort for which compensation is sought and of the rates and other costs. Further, noting that the proceedings largely involved protected information not reviewable by Columbia, the agency maintains that it is inappropriate to apply the G&A rate to various of the costs because little or no corporate support or effort was expended in the bulk of the activities generating the costs. The Board views the successful and unsuccessful issues of protest to have involved largely discrete and severable issues of fact and law and, therefore, the related efforts in filing and pursuing the issues of protest were not overlapping. Columbia pursued through decision matters on which it was unsuccessful and for which recovery for its costs would not be reasonable. The Board concludes that $36,000 represents a reasonable figure for reimbursement for the efforts (hourly fees and expenses) of retained counsel relating, directly or indirectly, to the issues on which Columbia prevailed. The travel-related costs and transcript expenses are supported in the record. The Board awards Columbia $5,899 for these costs as reasonable and related to filing and pursuing the protest. Neither the employee rates (whether hourly or salaried employees) nor direct labor burden rate of 124.92% is supported in the record as representing actual costs of Columbia. Similarly, the record does not support reimbursement as a cost of filing and pursuing the protest either the G&A rate of 18.16% or its application to the requested costs. Integrated Systems Group, Inc. v. Department of the Air Force, GSBCA 12256-C(12099- P), 95-2 BCA 27,738, 1995 BPD 107 (Board denied recovery of in-house costs where the record did not reveal what the hourly rate reflects, includes or excludes); CBIS Federal Inc. v. Department of the Treasury, GSBCA 11294-C(11206-P), 95-2 BCA 27,824, 1995 BPD 125 (in denying in-house employee costs, the Board stated that "the record does not demonstrate how the hourly rates or the fringe benefit rate were derived. A prerequisite to recovery of in-house costs requires support in the record: 'Without a basis to determine the reasonableness of the hourly rate claimed by the president, we deny recovery with respect to all amounts for his efforts.'") (citation omitted). Therefore, the Board denies these aspects of the requested relief. Decision The Board GRANTS IN PART the application--awarding $41,899 (= $36,000 + $1,578 + $4,321) and denying the remainder. This agency is to pay the awarded amount in accordance with statute. 40 U.S.C. 759(f)(5)(C) (1988); 31 U.S.C. 1304 (1988). _________________________ JOSEPH A. VERGILIO Board Judge We concur: ____________________________ ___________________________ ROBERT W. PARKER ALLAN H. GOODMAN Board Judge Board Judge