_______________________________ GRANTED IN PART: April 23, 1996 _______________________________ GSBCA 13289-C(13170-P), 13290-C(13171-P) DYNAMIC DECISIONS, INC., Applicant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent. Paralee White, William F. Savarino, G. Brent Connor, and Russell J. Gaspar of Cohen & White, Washington, DC, counsel for Applicant (GSBCA 13289-C). Michael A. Hordell and Laura L. Hoffman of Gadsby & Hannah, Washington, DC, counsel for Applicant (GSBCA 13290-C). Barbara Robbins and Richard S. Brown, Office of the General Counsel, Department of Health and Human Services, Washington, DC, counsel for Respondent. Before Board Judges NEILL, VERGILIO, and GOODMAN. VERGILIO, Board Judge. Dynamic Decisions, Inc. filed applications to recover $80,251.60, as amended, and $59,918.96, as its costs of filing and pursuing the underlying protests and these cost applications in GSBCA 13289-C(13170-P) and GSBCA 13290-C(13171-P), respectively. The agency seeks to reduce the amount of the awards. It contends that the applicant unnecessarily duplicated efforts and costs by retaining separate law firms to pursue each protest. It also maintains that a reduction in the requested awards should be made for the segregable counts of protest which were denied. The Board grants in part each of the cost applications, so as to award a reasonable amount for the successful pursuit of each protest. The Board does not award the entire amount of the requested recovery because the applicant was not successful on significant and segregable bases of the protests. Findings of Fact 1. The applicant filed two protests, raising similar grounds of protest, each fact-specific to one of the two contracts proposed to be awarded under a single solicitation. The Board dismissed one ground of one protest. The Board granted in part each protest. The Board granted those grounds of protest which relate to the anticipated contract value and contention that a sole-source 8(a) award was improper. The Board denied the remaining counts. Some of the denied counts alleged a lack of a Walsh-Healey inspection and a lack of a determination that items cannot be manufactured by a small business. Also denied were the allegations that the proposed awards would be inconsistent with the procurement and those that relate to the eligibility status of the proposed awardees. Dynamic Decisions, Inc. v. Department of Health & Human Services, GSBCA 13170-P, 13171-P, 95-1 BCA 27,549, 1995 BPD 51 (motions to dismiss granted in part), and 95-2 BCA 27,732, 1995 BPD 102 (protests granted in part). 2. The applicant (protester) initially retained one law firm to pursue the two parallel protests. After learning the identity of the proposed awardee of one of the contracts, the law firm (Cohen & White) withdrew as counsel in GSBCA 13171-P. The applicant continued to be represented by Cohen & White in GSBCA 13170-P, and retained the law firm of Gadsby & Hannah for representation in GSBCA 13171-P. 3. The applicant has filed cost applications to recover its costs of filing and pursuing the two protests--that is, for charges from the law firms for hourly attorney and paralegal efforts, and for disbursements. 4. In GSBCA 13289-C, the request, as amended, is for a total of $80,251.60--$68,102.50 in hourly fees and $12,149.10 in disbursements in filing and pursuing GSBCA 13170-P. Attachments to the motion and supplement document and support the costs incurred, providing detail of the relevant daily efforts of the attorneys and paralegal. 5. In GSBCA 13290-C, the request is for a total of $59,918.96--$57,502.50 in hourly fees and $2,416.46 in disbursements in filing and pursuing GSBCA 13171-P. Attachments to the motion document and support the costs incurred, providing detail of the relevant daily efforts of the attorneys. 6. The applicant estimates that a total of $1,529.50 was expended by counsel to pursue the unsuccessful eligibility issues: $1,482.50 in GSBCA 13170-P and $47.00 in GSBCA 13171-P. Applicant's Response to Agency Opposition (Sept. 12, 1995). 7. Based upon a review of the record in the underlying protests and these cost applications, the Board concludes that reasonable attorney fees for the successful pursuit of the protests are $70,000 and $55,000, respectively. The reductions reflect an adjustment for the unsuccessful grounds of protests which were factually and legally segregable from the successful grounds. The Board concludes that the estimates provided by the applicant of hours and costs attributable to the unsuccessful issues, Finding 6, do not fully account for efforts expended in developing the evidentiary record and formal arguments on those issues. Discussion On two bases, the agency opposes the requests for recovery. The agency contends that the costs "are excessive because the protester retained two law firms to handle its consolidated protests, resulting in unnecessary duplication of effort." Also, "any award of costs should be substantially reduced because the protests contained several distinct, severable counts on which the protester did not prevail." Agency Opposition at 1 (June 26, 1995). The agency presupposes an economy of scale by the fortuitous circumstance that a single offeror protested agency actions involved in two proposed awards under a single solicitation. Had one offeror protested the agency's actions relating to one proposed award, and another offeror protested the agency's actions relating to the other proposed award, one would not expect the offerors to have retained the same law firm. In the circumstance of two protesters and two law firms, the agency would be liable for the reasonable costs of both prevailing parties. The agency presumes that the retention of two law firms was excessive and resulted in the unnecessary duplication of effort. A law firm withdrawing from representation because of a conflict of interest leaves a protester with little choice but to represent itself or obtain alternate representation. Nothing appears untoward in the applicant's retention of Cohen & White, its initially selected law firm, for representation in the protest where no conflict existed. Attorneys from each firm possess a professional obligation to properly represent their client. The agency has pointed to no specific duplication of effort. The Board dismissed one count and denied several counts of one protest and two counts of the other protest. Finding 1. Those bases of protest were significant and severable, Rocky Mountain Trading Co., GSBCA 9750-C(9569-P), 90-3 BCA 23,040, 1990 BPD 147, and the necessary discovery and development of the record was discrete and different for those counts of protest granted and those denied. The applicant estimates that it incurred costs of $1,482.50 and $47.00 by counsel for the two protests on the unsuccessful issues. Finding 6. The Board deems the amounts sought by the applicant for successfully pursuing the protests as slightly excessive; the applicant-estimated amounts for the unsuccessful issues are low given the efforts involved. Findings 6, 7. Accordingly, the Board reduces the awarded amounts to what it deems to be reasonable reimbursable costs incurred for successfully pursuing each protest--$70,000 and $55,000, respectively. Columbia Services Group v. Department of Energy, GSBCA 13266-C(12999-P), 1996 BPD 25 (Feb. 15, 1996). Decision The Board GRANTS IN PART the applications--awarding $70,000 in GSBCA 13289-C and $55,000 in GSBCA 13290-C while denying the remainder of the requested amounts. The agency is to pay the awarded amounts 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: _________________________ _________________________ EDWIN B. NEILL ALLAN H. GOODMAN Board Judge Board Judge