BNUMBER:  B-260945.6 
DATE:  December 15, 1997
TITLE: Main Building Maintenance, Inc.--Costs, B-260945.6, December
15, 1997
**********************************************************************

Matter of:Main Building Maintenance, Inc.--Costs

File:     B-260945.6

Date:December 15, 1997

Garreth E. Shaw, Esq., for the protester.
Kathryn M. Burke, Esq., Department of the Air Force, for the agency.
John Van Schaik, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Attorney's fees need not be allocated between sustained and denied 
protest issues where all of the issues raised by the protester were 
related to the same core protest allegation which was sustained, and 
denied issues were not distinct and severable from issue sustained.

2.  Successful protester should be reimbursed company costs incurred 
in pursuing protest to the extent that such costs are sufficiently 
documented and are reasonable.

DECISION

Main Building Maintenance, Inc. requests reimbursement in the amount 
of $26,513.83, as its costs of filing and pursuing its protest, which 
we sustained in our decision, Main Bldg. Maintenance, Inc., 
B-260945.4, Sept. 29, 1995, 95-2 CPD
 para.  214. 

We recommend that Main be reimbursed $23,570.83.

BACKGROUND

In a series of protests, Main raised numerous allegations concerning 
the Department of the Air Force's evaluation of proposals, conduct of 
discussions, and award of a contract to DGR Associates, Inc. under 
request for proposals (RFP)                   No. F08637-94-R-7011, 
for military family housing maintenance services.  We sustained the 
protest because the written source selection decision indicated that 
the source selection authority (SSA) awarded the contract to DGR based 
on a mistaken understanding of the differences between the DGR and 
Main proposals.  In particular, we agreed with Main that a number of 
"value added strengths" which the SSA attributed exclusively to DGR's 
proposal also were present in Main's proposal.

We also considered and denied allegations by Main that DGR should not 
have been given credit in the evaluation and source selection for 
proposing to respond to service calls in a specified number of days; 
that the evaluators deviated from the evaluation criteria in the RFP 
by giving DGR credit for needing no phase-in period; that the ratings 
assigned to its own and DGR's proposal were erroneous; that the agency 
conducted unequal discussions; and that the agency improperly 
permitted DGR to amend its proposal. 

Since we denied these allegations, we stated that there was no need to 
reopen discussions.  Rather, we recommended that the SSA reassess 
whether DGR's proposal offered the best value to the government.  
Finally, we recommended that the Air Force should reimburse Main for 
its reasonable costs of filing and pursuing its protest, including 
reasonable attorney's fees.  4 C.F.R.  sec.  21.6(d)(1) (1995).

Main initially claimed reimbursement of $24,691.33, including 
$23,232.67 in attorney's fees and costs, $1,432.91 for the time spent 
by Main's employees on the protest, and $25.75 for Federal Express 
charges.  Main's claim included a "Statement of Professional Services 
and Costs" which was prepared by the firm's attorney and which 
indicated that the attorney had spent 169.50 hours on the protest at a 
total cost of $22,882.50.  That statement also included a detailed 
breakdown by date of the time spent by the attorney, brief notations 
of how the time was spent, and a statement that the attorney had 
incurred $350.17 in costs in pursuit of the protest.  The attorney 
certified that he had performed the listed work on the protest at an 
hourly rate of $135 and that the work had been billed to the client.  
Main also submitted a billing statement for its company personnel 
time, including hourly rates for three employees and the hours worked 
and total charges for each employee.  The claim also included a copy 
of a Federal Express bill for $25.75.  Subsequently, Main amended its 
claim to include an additional 13.5 hours, at $135 per hour, for a 
total of $1,822.50, for time spent by its attorney pursuing the claim 
before this Office.

The Air Force has offered to reimburse Main only $1,355.58 for 
attorney's fees and costs and company personnel costs.  The Air Force 
has challenged most of the costs for the attorney's hours, all of the 
other costs claimed for Main's attorney, and all of the company's 
personnel costs claimed by Main.  The following is a breakdown of the 
amounts claimed by Main and the amounts which the Air Force has 
offered to pay:

                     Claimed by Main      Offered by Air Force

Attorney's fees for 
pursuing the protest $22,882.50           $1,329.83

Attorney's costs     $   350.17           $    0.0

Company personnel
costs                $ 1,432.91           $    0.0

Company costs        $     25.75          $     25.75

Attorney's fees for
pursuing the claim
before GAO           $ 1,822.50            $    0.0

Total                $26,513.83           $1,355.58
ATTORNEY'S FEES

As explained above, Main claimed reimbursement for $22,882.50 for 
attorney's fees for pursuit of the protest and the Air Force has 
offered to pay only $1,329.83 of that amount.  The Air Force has no 
objection to the $135 hourly rate charged by Main's attorney.  Rather, 
the agency argues that Main is entitled to reimbursement only for the 
time spent by the firm's attorney on the single contention sustained 
in the protest--that the SSA based the selection decision between DGR 
and Main on his erroneous belief that only DGR's proposal included six 
"value added strengths." 

In support of this approach, the Air Force asserts that the initial 
protest filed by Main on March 29, 1995, included three grounds of 
protest:  (1) the Air Force failed to follow the evaluation criteria 
in the solicitation; (2) the Air Force failed to conduct meaningful 
discussions; and (3) the Air Force improperly evaluated the technical 
proposals of the protester and the awardee.  The agency argues that no 
costs should be paid for the initial protest because all of these 
issues were unsuccessful and are severable from the issue that was 
sustained.  For example, the Air Force argues that the third issue, 
challenging the evaluation of proposals, is distinct and severable 
from the sustained issue because the sustained issue focused on a 
different stage of the source selection process and presented 
different questions of fact and law.  According to the Air Force, 
since Main raised its only successful issue in its supplemental 
protest, and since all the grounds for protest raised in the initial 
protest were denied, Main should be denied the costs of bringing the 
initial protest.  

Main filed a second protest on May 18, 1995.  The Air Force argues 
that Main should be reimbursed for only one-seventeenth of the 
attorney's fees for that protest submission because the second protest 
contained seventeen separate and distinct bases of protest, sixteen of 
which were dismissed or denied.  Thus, the Air Force argues that Main 
is entitled to only $142.94 (18 hours at $135 per hour divided by 17).  
The Air Force takes a similar position on each of the other 
submissions made by Main's attorney in pursuit of the protest.  On May 
24, Main's attorney filed comments on the Air Force's initial agency 
report.  According to the Air Force, only one-and-a-half pages, or 
one-twelfth, of that eighteen page document related to the issue which 
was sustained.  As a result, the agency argues that Main is entitled 
to only $157.50 (14 hours at $135 per hour divided by 12=$157.50) for 
the preparation of that document.  Similarly, the Air Force argues 
that Main's comments on the agency's second report were 19 pages long 
with only one-and-a-half pages, again approximately one-twelfth, 
devoted to the sustained issue.  Again using its page allocation 
method, the agency argues that Main is entitled to only $286.87 for 
this document (25.5 hours at $135 per hour divided by 12=$286.87).

In response, Main argues that the Air Force's position is 
unreasonable.  According to Main, since the prevailing issue concerned 
the propriety of the agency's evaluation of proposals and the 
reporting of the evaluation results to the source selection authority, 
it was necessary for its attorney to review all facts and documents 
surrounding the evaluation and reporting process.  Specifically, 
according to Main, its counsel was required to review DGR's proposal, 
Main's proposal, the solicitation, source selection procedures, the 
technical evaluation and revised evaluation for each proposal, each 
offeror's best and final offer, all documents in the agency reports 
and the agency's responses to Main's comments.  Main asserts that this 
review--all of which would have been necessary in order to pursue the 
single issue on which the protester prevailed, even if no other issues 
had been raised--was followed by several hours of research, drafting 
and revising to produce the attorney's final work products.  In 
addition, Main states that the attorney's fees and costs claimed are 
only for work necessary for the protest ground that was sustained and 
all of the attorney's fees and costs related to work on the allegation 
that the agency failed to conduct meaningful discussions were 
segregated and not included in the firm's claim.

The underlying purpose of the provisions in the Competition in 
Contracting Act of 1984 (CICA) relating to the entitlement to bid 
protest costs is to relieve protesters of the financial burden of 
vindicating the public interest as defined by Congress in the Act.  
Department of the Navy--Request for Recon. and for Modification of 
Remedy, B-246784.4, Feb. 17, 1993, 93-1 CPD  para.  147 at 6.  In this 
regard, the bid protest process, as mandated by CICA, "was meant to 
compel greater use of fair, competitive bidding procedures 'by shining 
the light of publicity on the procurement process, and by creating 
mechanisms by which Congress can remain informed of the way current 
procurement legislation is (or is not) operating.'"  Lear Siegler, 
Inc., Energy Prods. Div. v. Lehman, 842 F.2d 1102, 1104 (9th Cir. 
1988), quoting
Ameron v. U.S. Army Corps of Eng'rs, 809 F.2d 979, 984 (3d Cir. 1986).  
Congress believed that the prospect of successful protesters being 
reimbursed their bid protest costs was necessary to enhance the 
effectiveness of the bid protest process.  See H.R. Rep. No. 98-1157, 
98th Cong., 2nd Sess. 24-25 (1984).

As a general rule, we consider a successful protester entitled to 
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 entitlement provisions of CICA.  
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, 66 Comp. Gen. 597, 599 (1987), 87-2 CPD  para.  106 at 
3.

This approach is consistent with the guidance provided by Supreme 
Court precedent with respect to other fee shifting statutes.  In 
Hensley v. Eckerhart,     461 U.S. 424 (1983), the Court defined the 
conditions under which a plaintiff who prevails on only some of its 
claims may recover attorney's fees under the Civil Rights Attorney's 
Fees Awards Act of 1976, 42 U.S.C.  sec.  1988 (1994).  With respect to 
lawsuits raising multiple issues, the Court noted that, "[l]itigants 
in good faith may raise alternative legal grounds for a desired 
outcome, and the court's rejection of or failure to reach certain 
grounds is not a sufficient reason for reducing a fee."  Id. at 435.  
More specifically, recovery should not be limited if the claims are 
interrelated--i.e., the successful and unsuccessful claims share a 
common core of facts or are based on related theories.  See id. at 
434-435; Department of the Navy--Request for Recon. and for 
Modification of Remedy, supra at 7.  

In this case, Main in good faith raised a number of significant issues 
concerning the evaluation of proposals and the selection decision 
which warranted further development and detailed review.  Most of 
those issues revolved to some degree around Main's basic assertion 
that the evaluation and selection were flawed.  The protester 
prevailed with respect to its allegation that the selection of DGR's 
proposal for award was based on the SSA's erroneous understanding of 
the differences between the various proposals and, in our view, the 
fact that Main did not prevail on every allegation related to its 
basic assertion that the evaluation and selection were flawed makes 
the protester no less entitled to full recovery.  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 protests.

The Air Force argues that the issue which was sustained--that the SSA 
based the selection decision on his erroneous belief that only DGR's 
proposal included six value added strengths--is distinct and severable 
from all of the other issues raised because the sustained issue 
focused on a different stage of the source selection process and 
presented different questions of fact and law.  In this respect, the 
Air Force states that we found that "all elements of the Air Force's 
evaluation of proposals were reasonable" and the single flaw that 
occurred in the process was in presenting the evaluation results to 
the SSA.   

We do not agree.  Contrary to the Air Force's position, it was not our 
view that there were no flaws in the evaluation process.  As explained 
above, the record showed that the SSA had a mistaken understanding of 
the differences between the various proposals.  In particular, 
contrary to the SSA's understanding, a number of significant strengths 
which were attributed exclusively to DGR's proposal also were present 
in Main's proposal.  Thus, the evaluation process was flawed because 
it failed to give the SSA an accurate understanding of the differences 
between the proposals.[1]

In addition, although the Air Force focuses on the time listed in the 
attorney's billing statement for drafting documents such as protest 
submissions and comments, this focus ignores other time noted in the 
billing statement for review of the extensive record in the protest 
(including proposals, the solicitation, multiple evaluation documents, 
best and final offers, and agency responses to the protests), 
research, and communication with the client.  Main argues, and we 
agree, that most if not all of this time would have been required 
simply to raise and pursue the single issue on which Main prevailed, 
regardless of whether the firm raised the other issues which were 
denied.

The Air Force also argues that Main should not be reimbursed for most 
of its attorney's fees incurred after the initial protest was filed 
but before the agency report was received by the attorney.  According 
to the Air Force, 13.5 hours spent by the attorney during this 
timeframe was not incurred in pursuit of the protest.  

The billing statement entries to which the Air Force objects concerned 
meetings and phone calls with the client concerning the status of the 
protest, review of client documents and research.  Protesters are 
entitled to recover costs attributable to hours spent if they were 
reasonably necessary to the protest effort.  Fritz Cos., 
Inc.--Claim for Costs, 73 Comp. Gen. 250, 253 (1994), 94-2 CPD  para.  58 at 
4.  Although the Air Force argues that all of the time spent by Main's 
attorney after the protest was filed but before the report is not 
reimbursable, we have recognized that some review of the protest file 
by an attorney may be necessary during the course of the protest to 
inform the client or generally to stay knowledgeable about the 
protest.  Id., 94-2 CPD  para.  58 at 6 n.4.  We conclude that the time 
spent by Main's attorney was necessary to the protest effort.

Accordingly, we reject the Air Force's position that Main should be 
reimbursed only for the costs related to the issue which was 
sustained.  We conclude that numerous issues raised by Main concerning 
the evaluation of proposals and the selection decision shared a common 
core of facts and that the sustained issue was not so clearly 
severable from the issues on which Main did not prevail as to 
constitute a separate and distinct protest.

Nonetheless, Main is not entitled to reimbursement for all of the 
attorney hours which it has claimed.  For instance, we agree with the 
Air Force that Main is not entitled to recover for 12.6 hours of its 
attorney's time providing legal advice on the acquisition after the 
decision on the protest was issued; these costs were unrelated to the 
pursuit of the protest.[2]  Price Waterhouse--Claim for Costs, supra 
at 9.  Main also is not entitled to $13.50 for .10 of an hour spent by 
its attorney discussing settlement of the protest.  Id. at 8.  Main's 
attorney's billing statement also includes 6.1 hours for preparing the 
firm's claim to the Air Force for the costs of pursuing the protest.  
Our Bid Protest Regulations do not contemplate reimbursement of the 
cost of pursuing a claim before the contracting agency.  Manekin 
Corp.--Claim for Costs, B-249040.2, Dec. 12, 1994, 94-2 CPD  para.  237 at 
6.

Main also is not entitled to reimbursement for its attorney's fees for 
the preparation and submission of a letter to this Office on August 1, 
1995.  That letter was a response to an Air Force submission 
concerning whether Main was prejudiced by allegedly improper 
discussions conducted with the firm.  Consistent with Main's position 
that it is not claiming reimbursement for attorney's fees and costs 
related solely to the discussion issue, we conclude that Main is not 
entitled to reimbursement for 3 hours spent preparing the August 1 
letter.

After deducting 21.8 hours, or $2,943 (at $135 per hour) from Main's 
claim of 169.50 hours for attorney's fees ($22,882.50) for pursuing 
the protest, we conclude that Main should be reimbursed $19,939.50.

OUT-OF-POCKET EXPENSES

Main claims $350.17 for its attorney's out-of-pocket expenses.  This 
amount includes:

     (1) $220 for 2,200 pages of photocopies of the agency report, 
     client documents and GAO/agency correspondence at .10 per page;

     (2) $40.50 for three Federal Express packages at $13.50 each; 

     (3) $80.00 for faxing 160 pages of protest documents and 
     responses to GAO, the client and parties to the protest at .50 
     per page; and 

     (4) $9.67 for long distance telephone calls to GAO, the agency, 
     and opposing counsel regarding protest status and 
     information/comments submitted.

The Air Force argues that Main has not adequately documented how each 
expense was incurred and how the expense relates to the protest.  The 
Air Force particularly questions the photocopying charges.  The agency 
explains that Main was represented by a single attorney so sharing 
documents was not necessary and, in any event, under the protective 
order which applied to the protest, Main's attorney was not permitted 
to make copies of protected material without the permission of the Air 
Force--which permission was never granted.  

Claims for out-of pocket expenses must be supported by documentation 
which identifies the amount claimed, the purpose for which the expense 
was incurred, and how the expense relates to the bid protest.  Komatsu 
Dresser Co.--Claim for Costs,   B-246121.2, Aug. 23, 1993, 93-2 CPD  para.  
112 at 8.  Although the Air Force insists that Main has not adequately 
documented how each expense was incurred and how the expense relates 
to the protest, as set forth above, Main has provided a breakdown of 
the expenses and explained how each expense relates to the protest.  
For example, Main's attorney explains that it is his office policy to 
make working copies of documents to preserve original documents 
received by his office.  Although the Air Force complains that this 
practice is not necessary and that under the protective order Main's 
attorney was not permitted to make copies of protected materials, in 
our view it is a reasonable practice to make working copies of 
unprotected documents in order to preserve the originals and Main's 
attorney has explained that he made no copies of protected documents.  
In addition, although Main's submissions explain the number of Federal 
Express packages and fax pages and the total charges for long distance 
phone calls, the Air Force has not challenged that explanation by 
arguing that those expense are not consistent with the record, but has 
simply repeated its general assertion that the expenses are not 
adequately documented.  Under the circumstances, we have no reason to 
conclude that the claimed expenses were not reasonably related to the 
protest effort and we recommend that Main be reimbursed for all of its 
attorney's out-of- pocket expenses.  

COMPANY COSTS

As explained above, Main claims $1,432.91 for 42.55 hours spent by 
company employees on the protest.  The company's billing statement 
includes hours worked and dates for each of three company employees, 
an hourly rate for each employee ($37.36 for the president of the 
company and $31.61 and $32.45 for the other two employees), and a 
brief description of how the time was spent.  The billing statement 
describes most of the work as telephone calls with the attorney, 
providing information to the attorney, meetings with the attorney, and 
review of information from the attorney.  The Air Force challenges 
these costs on the basis that Main has not explained how the phone 
calls or meetings related to the protest and has not demonstrated that 
the rates identified for each of the employees are consistent with the 
compensation these employees generally receive.  For those reasons, 
the Air Force argues that Main should not recover any of these costs.  
The agency, however, does concede that Main is entitled to recover 
$25.75 in Federal Express charges because the firm provided a copy of 
the Federal Express bill.  

In an affidavit, Main's president explains that the purpose of the 
work performed by himself and the other Main employees generally was 
to provide the firm's attorney with information or to obtain status 
updates on the protest.  He also explains that the specific purpose 
for a meeting or phone call on a particular day is listed in the 
billing statement of the firm's attorney and that the hourly rates 
listed on the firm's billing statement are actual rates of 
compensation, with a reasonable allowance for overhead.  

We conclude that Main is entitled to the company costs claimed.  
Although the Air Force argues that it cannot determine the time spent 
by each Main employee or how the work was related to the protest, by 
reviewing the firm's billing statement in conjunction with the 
attorney's billing statement, it is possible to determine what tasks 
were performed by particular company employees on particular days, the 
time spent, the hourly rate for a particular employee and the total 
charge for the task.  The Air Force does not challenge the company's 
billing statement by arguing that the statement is inconsistent with 
the attorney's billing statement or that the time spent or rates of 
compensation of the Main employees were unreasonable, and based on our 
examination of the record we find only incidental inconsistencies 
between the company's billing statement and the attorney's billings 
statement.  We conclude that the time spent and the rates of 
compensation of the Main employees were consistent with what a 
reasonable person would employ in pursuit of the protest.  

COSTS OF PURSUING THE CLAIM

Main also requests reimbursement for its attorney's fees for pursuing 
its claim for costs with this Office.  Main has claimed $1,822.50 for 
13.5 hours spent by its attorney researching, preparing and pursuing 
its claim for costs with this Office.  

Our Bid Protest Regulations, 4 C.F.R.  sec.  21.6(f)(2), provide that we 
may recommend reimbursement of the costs of pursuing a 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.  Komatsu Dresser Co.--Claim for 
Costs, supra at 8.  The costs of pursuing a claim before our Office 
are recoverable if by their nature and amount they do not exceed that 
which would be incurred by a prudent person in a similar pursuit.  
Commerce Land Title of San Antonio, Inc.--Claim for Costs, B-249969.2, 
Oct. 11, 1994, 94-2 CPD  para.  131 at 5 n.6.  Here, Main's attorney spent 
13.5 hours on research and preparation of its request for the costs of 
pursuing its claim before this Office and has certified that the time 
was spent on its claim for costs with this Office and that his $135 
per hour fee is in accordance with his agreement with Main.  The Air 
Force has articulated no basis for asserting that the fees are 
excessive.  Id. at 5.  Based upon our own examination of the claim and 
the supporting documentation, we believe that the amount of attorney's 
time spent was reasonable.  Accordingly, we recommend reimbursement of 
the claimed attorney's fees.

CONCLUSION

Of the total claimed costs of $26,513.83, we recommend that the Air 
Force reimburse Main $23,570.83.

Comptroller General
of the United States

1. The Air Force also argues that no attorney's fees should be 
reimbursed for the initial protest since the single issue sustained 
was raised in the supplemental protest, not the initial protest.  We 
do not agree.  In fact, as explained, the evaluation was flawed and, 
as the Air Force concedes, Main had argued in its initial protest that 
the evaluation was flawed.  

2. The Air Force concedes that Main is entitled to recover its costs 
for 3 hours of attorney time incurred reviewing the decision.