BNUMBER:  B-258322.8 
DATE:  November 3, 1998
TITLE: TRESP Associates, Inc.--Costs, B-258322.8, November 3, 1998
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Matter of:TRESP Associates, Inc.--Costs

File:     B-258322.8

Date:November 3, 1998

Timothy B. Mills, Esq., Christy L. Gherlein, Esq., Patton Boggs, for 
the protester.
Richard S. Blakely, Esq., Department of Energy, for the agency.
Sylvia Schatz, Esq., David A. Ashen, Esq., and John M. Melody, Esq., 
Office of the General Counsel, GAO, participated in the preparation of 
the decision.

DIGEST

1.  Attorneys' fees need not be allocated between protest issue that 
was sustained and issues that were not addressed in decision where all 
issues were related to the same core allegation, which was sustained; 
since issues not addressed were not distinct and severable from the 
sustained issue, attorneys' fees related to those issues are 
reimbursable.

2.  Costs of filing and pursuing a bid protest do not include costs 
associated with pursuing claim with contracting agency.

3.  Costs of pursuing claim at General Accounting Office are not 
reimbursable where record shows that agency proceeded expeditiously 
and reasonably in responding to claim.

4.  Out-of-pocket expenses are reimbursable (except for meal expense) 
in full, since they relate to pursuit of protest as a whole, rather 
than to specific issues.

DECISION

TRESP Associates, Inc. requests reimbursement in the amount of 
$58,346.83, as its costs of filing and pursuing its protest, which we 
sustained in our decision, TRESP Assocs., Inc.; Advanced Data 
Concepts, Inc., B-258322.5, B-258322.6, Mar. 9, 1995, 96-1 CPD  para.  8.  

We recommend that TRESP be reimbursed $39,755.26.

We sustained TRESP's protest challenging the Department of Energy's 
(DOE) award of a contract to Chew & Associates, Inc. (CAI) under 
request for proposals (RFP) No. DE-RP03-93SF19686, for technical and 
management services, on the basis that the agency had failed to 
recognize that TRESP had addressed and eliminated in its best and 
final offer (BAFO) many of the weaknesses identified by DOE during 
discussions, and that the evaluation therefore was unreasonable.  
However, we denied TRESP's protest that DOE's award to CAI gave rise 
to an actual or apparent conflict of interest, and we did not address 
several other protest grounds related to the evaluation (since we 
already had sustained the protest on the first ground).  We 
recommended corrective action and reimbursement of TRESP's protest 
costs.  TRESP has been unable to reach agreement with DOE on the 
claim, and asks that we recommend the amount of protest costs which 
should be reimbursed by DOE.  

PRE-DECISION ATTORNEYS' FEES

TRESP claims reimbursement for $34,801.08 (236.19 hours) in attorneys' 
fees incurred prior to issuance of our decision and with respect to 
issues other than the conflict of interest issue.  TRESP Letter of 
June 27, 1996 at 2; TRESP Letter of May 29, 1995 at 10 and Exhibits 
2-7.  TRESP argues that its reimbursement should include fees related 
to the evaluation issues not addressed in our decision, since they 
arose out of the same common core of facts and law as the sustained 
issue--the flawed evaluation process.  DOE argues that TRESP is 
entitled to reimbursement only for the time spent by the firm's 
attorneys on the single contention sustained in the protest--that the 
evaluation was unreasonable as DOE failed to recognize that TRESP had 
addressed and eliminated in its BAFO many of the weaknesses identified 
by the agency during discussions.[1]  Based on DOE's review of the 
billing records submitted by TRESP's counsel, DOE determined that only 
24 percent of the hours claimed was spent on the sustained issue.  DOE 
Report of March 7, 1996 at 10. 

As a general rule, we consider a successful protester should be 
reimbursed the costs incurred with respect to all issues pursued, not 
merely those upon which it prevails.  Price Waterhouse--Claim for 
Costs, B-254492.3, July 20, 1995, 95-2 CPD  para.  38 at 3.  In our view, 
limiting recovery of protest costs in all cases to only those issues 
on which the protester prevailed would be inconsistent with the broad, 
remedial congressional purpose behind the cost reimbursement 
provisions of the Competition in Contracting Act of 1984.  31 U.S.C.  sec.  
3554(c)(1)(A) (1994).  On the other hand, we have limited the award of 
protest costs to successful protesters where a part of their costs is 
allocable to a protest issue which is so clearly severable as to 
essentially constitute a separate protest.  Interface Flooring Sys. 
Inc.--Claim for Attorneys' Fees, B-225439.5, July 29, 1987, 87-2 CPD  para.  
106 at 2-3.

In this case, TRESP raised several significant issues concerning the 
conduct of discussions, evaluation of proposals, and resulting source 
selection decision.  The protester established that the source 
selection was unreasonable because DOE failed to recognize that TRESP 
had addressed and eliminated in its BAFO many of the weaknesses 
identified by the agency during discussions.  In our view, the fact 
that TRESP did not prevail on every allegation related to its basic 
assertions that the evaluation and source selection were unreasonable 
makes reimbursement of costs no less appropriate; rather, since the 
successful and unsuccessful contentions share a common core of facts 
and are based on related legal theories, they cannot reasonably be 
viewed as a series of discrete claims.  Accordingly, since the issue 
upon which we sustained the protest is not readily severable from 
those we did not address, we conclude that TRESP is entitled to 
protest costs of $34,801.08 in attorneys' fees incurred prior to 
issuance of our decision.  Main Bldg. Maintenance, Inc.--Costs, 
B-260945.6, Dec. 15, 1997, 97-2 CPD 163 at 5.
 
POST-DECISION ATTORNEYS' FEES

DOE also disputes TRESP's claim of $11,327.50 for attorneys' fees 
incurred after issuance of our decision on March 9 (but not in 
connection with pursuing its claim at our Office).  TRESP Letter of 
June 27, 1996 at 3-4.  Of the 76 hours of post-decision attorneys' 
time claimed, DOE disallowed costs for 67.25 hours--59 hours were 
disallowed (DOE disallowed $8,932.50, but TRESP's bills show that the 
actual total for this item is only $8,667.50; our calculations thus 
are based on this amount) as relating to pursuit of the claim with the 
agency, not the protest; DOE has not addressed the remaining 8.25 
disallowed hours.  DOE allowed costs for 8.75 hours ($1,345).  DOE 
Report of March 7, 1996 at 12-14; TRESP Letter of June 27, 1996 at 
3-4; TRESP Letter of February 6, 1996 at Exhibit I; TRESP Letter of 
May 29, 1995 at Exhibits 7-9.

We conclude that DOE properly disallowed payment for 62.75 of the 76 
hours claimed.  The 59 attorney hours properly were disallowed, since 
costs associated with pursuing a cost claim with the contracting 
agency are not recoverable as protest costs.  Komatsu Dresser 
Co.--Claim for Costs, B-246121.2, Aug. 23, 1993, 93-2 CPD  para.  112 at 7.  
Regarding the 8.25 hours that the agency does not address, only a 
portion was properly disallowed.  The record shows that 3 hours ($600) 
were spent by a partner on March 10 reviewing the GAO decision, 
discussing the decision with the client and an associate, and 
commencing preparation of the cost claim.  TRESP Letter of May 29, 
1995 at Exhibit 7.  In addition, the record shows that .75 hours 
($150) were spent by the partner on May 10 reviewing DOE 
correspondence on the destruction of protected documents in accordance 
with our protective order and discussing with DOE the next round of 
BAFOs on the procurement.  Id. at Exhibit 9.  As a general rule, where 
a protester has aggregated allowable and unallowable costs in a single 
claim, such that we cannot tell from the record before us what portion 
is unallowable, the entire amount must be disallowed
even though some portion of the claim may be properly payable.  Armour 
of Am., Inc.--Claim for Costs, B-237690.2, Mar. 4, 1992, 92-1 CPD  para.  
257 at 8.  TRESP has not delineated, and the record does not show, 
what portion of the 3 hours was spent reviewing our decision 
(allowable), and what portion was spent commencing preparation of its 
cost claim with the agency (not allowable).  Similarly, there is no 
indication of the portion of the .75 hours spent reviewing DOE's 
correspondence on the destruction of documents (allowable as relating 
to the administration of our protective order) and the portion spent 
discussing the next round of BAFOs (not allowable, since not related 
to pursuit of the protest).  As we cannot determine what portion of 
these costs is allowable, we find that the agency properly disallowed 
the claimed costs for the 3.75 hours ($750).  However, we find no 
basis for disallowing the remaining 4.5 (of the 8.25 unexplained) 
hours.  

We conclude that TRESP should be reimbursed $1,910 for its 
post-decision legal fees not related to pursuing its claim at our 
Office.

ATTORNEYS' FEES RELATED TO PURSUING CLAIM AT GAO

TRESP requests reimbursement of $9,137.50 in attorneys' fees related 
to pursuit of its claim at our Office.  TRESP Letter of June 27, 1996 
at 4.  Under our Bid Protest Regulations as applicable to this matter, 
4 C.F.R.  sec.  21.6(f)(2) (1995), we may recommend that a protester be 
paid the costs of pursuing its claim before our Office; this provision 
is designed to encourage expeditious agreement between a successful 
protester and the contracting agency as to the quantum of recoverable 
costs.  American Imaging Servs., Inc.--Request for Declaration of 
Entitlement to Costs, B-246124.4, Dec. 30, 1992, 92-2 CPD  para.  449 at 2.  
As discussed above, we conclude that the agency's position during 
negotiations that a substantial portion of the claimed costs was not 
reimbursable was correct.  Since, in addition, there is no evidence of 
undue delay on the part of the agency, there is no basis for 
recommending reimbursement of these attorneys' fees.

OUT-OF-POCKET EXPENSES

TRESP claims $3,080.75 in legal expenses incurred for telephone calls, 
facsimile transmissions, meals/petty cash, photocopying, local 
transportation, travel-related expenses, postage and courier services, 
client travel, computer-assisted research, and secretarial overtime.  
TRESP Letter of June 27, 1996 at 3.  DOE maintains that, since TRESP 
failed to document whether the expenses were incurred on the sustained 
issue, TRESP should be allowed to recover only 24 percent of the 
unsegregated expenses--that is, the percentage of the attorneys' time 
spent on the sustained issue--after deduction of $36.57 in meal 
expenses and certain expenses DOE considers associated with the denied 
conflict of interest issue.  DOE Report of March 7, 1996 at 15-16.  

As noted by the agency, the cost of meals is not reimbursable.  ViON 
Corp.--Claim for Costs, B-256363.3, Apr. 25, 1995, 95-1 CPD  para.  219 at 
6; Princeton Gamma-Tech, Inc.--Claim for Costs, B-228052.5, Apr. 24, 
1989, 89-1 CPD  para.  401 at 4.  However, we find that the remainder of the 
claimed expenses is allowable, since the bills sent to TRESP show that 
the expenses were related to TRESP's protest.  In this regard, 
expenses--such as travel, courier expenses and postage--generally 
relate to pursuit of the protest as a whole.  ViON Corp.--Claim for 
Costs, supra, at 7.  For example, the cost of attorney and client 
travel to a hearing ordinarily would involve the same cost whether or 
not the hearing addressed ultimately unsuccessful protest grounds in 
addition to successful grounds.  We conclude that TRESP should be 
reimbursed $3,044.18 ($3,080.75 minus $36.57 in meal expenses) for 
out-of-pocket expenses.   

CONCLUSION

Of the claimed $58,346.83, we recommend that DOE reimburse TRESP 
$39,755.26 in protest costs.

Comptroller General
of the United States

1. TRESP also argued that (1) DOE's discussions with TRESP were 
inadequate because the agency failed to point out the weaknesses in 
its BAFO; (2) DOE improperly evaluated CAI's proposed BAFO cost; (3) 
DOE improperly downgraded TRESP's proposal on the basis of unstated 
evaluation factors; and (4) the source selection decision accorded 
more weight to the business proposal than was permitted under the 
evaluation factors set forth in the RFP, and was based on personal 
preference and not the stated evaluation factors.