TITLE:   A-1 Movers of America, Inc. et al.--Costs, B-277241.31, August 2, 1999
BNUMBER:  B-277241.31
DATE:  August 2, 1999
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A-1 Movers of America, Inc. et al.--Costs, B-277241.31, August 2, 1999

Decision

Matter of: A-1 Movers of America, Inc. et al.--Costs

File: B-277241.31

Date: August 2, 1999

Thomas M. Auchincloss, Jr., Esq., and Brian L. Troiano, Esq., Rea, Cross &
Auchincloss, for the protester.
Ramon Morales, Esq., Department of the Army, for the agency.
Adam Vodraska, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protesters' request for recommendation that they be reimbursed for protest
costs is denied where the protesters' attorneys fail to adequately document
that the claimed attorneys' fees and expenses are costs of the protesters.

DECISION

A-1 Movers of America, Inc. and 38 other firms request that we recommend the
amount they should be reimbursed by the Military Traffic Management Command
(MTMC), Department of the Army, for filing and pursuing their protests in
Aalco Forwarding, Inc., et al., B-277241.16, Mar. 11, 1998, 98-1 CPD para. 75.
[1] In that decision, we sustained the protests by these and other
protesters against the partial small business set-aside of request for
proposals (RFP) No. DAMT01-97-R-3001. [2]

We deny the request.

The RFP is for a pilot program that reengineers the Department of Defense's
current interstate and international program for shipping and storing the
personal property of its military service members and civilian employees. As
amended, the solicitation sought proposals to service 53 designated traffic
channels (origin state-to-destination region), 27 of which were partially
set-aside for exclusive small business participation (amounting to 12
percent of the traffic volume).

The solicitation, as issued, was the subject of numerous protests by these
and other protesters, as were subsequent amendments to the RFP. Among the
protest allegations was the contention that the RFP's partial set-aside was
not an economic production run or reasonable lot, as required, and that the
solicitation was not properly divided into set-aside and non-set-aside
portions and was otherwise ambiguous in this regard.

On March 11, 1998, we sustained the protests of the RFP's partial set-aside.
We found that the partial set-aside did not ensure an economic production
run or reasonable lot of shipments for small business concerns, as required
by Federal Acquisition Regulation (FAR) sect. 19.502-3(b). Specifically, the
set-aside did not meaningfully consider the impact of the relatively small
number of shipments available on many of the set-aside channels or the
significant obligations, such as committed daily capacity, imposed on small
business contractors by the solicitation. We recommended that the agency
reexamine its partial set-aside under the criteria of FAR sect. 19.502-3, and
make the appropriate determinations and adjustments. In sustaining the
protests, we further recommended that the protesters be reimbursed the
reasonable costs of filing and pursuing their protests, including reasonable
attorneys' fees, allocable to the partial set-aside issue. [3]

On May 7, 1998, within 60 days of receipt of our decision, the protesters'
attorneys submitted a certified claim to MTMC seeking reimbursement of
$69,828.14 in attorneys' fees and $3,550.21 in expenses. To support the
claimed fees and expenses, the protesters' attorneys submitted an "abstract"
for each pleading or document that involved the sustained issue. The
abstract identified the issues addressed by the pleading or document; the
date on which the work was performed; the attorneys involved; a brief
description of the work; the number of hours expended; and the total amount
of attorney time. Where a pleading or document involved issues other than
the partial set-aside, the attorneys allocated the amount of their fees and
expenses to the sustained protest issue on the basis of the percentage of
pages of each submission devoted to the partial small business set-aside
issue. Each abstract also identified out-of-pocket expenses (such as
duplicating, messenger, telephone, express delivery, and postage expenses)
incurred in connection with the particular pleading or document, although
these expenses were not allocated proportionally to the sustained protest
issue. The protesters' attorneys did not provide any other supporting
information, such as copies of their actual bills to the protesters.

The contracting officer denied the claim on November 23 for the reason that
the request was not properly substantiated. The protesters' attorneys then
asked that the contracting officer provide additional information regarding
the denial of the claim. On January 12, 1999, the contracting officer
reiterated her earlier denial of the claim. The contracting officer noted,
among other things, the failure of the protesters' attorneys to substantiate
the time they expended and their out-of-pocket expenses by providing copies
of paid client billings, memorandums of telephone conversations, invoices,
minutes and memorandums of meetings, copies of paid invoices, or receipts of
bills paid. The contracting officer also found that the attorneys failed to
submit a copy of the retainer agreement with each protester with which she
could evaluate and verify whether some of the claimed expenses were properly
the responsibility of the protesters.

On January 28, the protesters requested that our Office determine the amount
they should be reimbursed.

We will not consider requests for a recommendation for reimbursement of
costs where the protester fails to document its claim to the contracting
agency. See Custom Prod. Mfg., Inc.--Recon., B-235431.8, July 21, 1995, 95-2
CPD para. 40 at 3. Where, as here, attorneys' fees are sought to be recovered,
evidence from the attorneys involved must be submitted, including, for
instance, copies of bills from the attorneys listing the dates the services
were performed and the hours billed to the protester. Custom Prod. Mfg.,
Inc.--Costs, B-235431.7, May 9, 1995, 95-1 CPD para. 236 at 3. We have reviewed
the documentation submitted by the protesters' attorneys here, which
consists of the abstracts of attorneys' fees and expenses for each pleading
or document that dealt with the partial set-aside issue, and we find this
evidence insufficient to support the protesters' claim.

While the attorneys' fees and expenses claimed may have been incurred in
"representing the interests of the small business protesters," Statement of
Thomas M. Auchincloss, Jr., Esq., May 7, 1998, at 2, there is no evidence
that these fees and expenses were ever actually billed to the protesters.
[4] In this regard, the protesters have not responded to the agency's
contention that an industry trade association, the American Moving and
Storage Association (formerly the American Movers Conference), actually
sponsored the protests; on the contrary, the record is devoid of any
unequivocal statement by the attorneys that their costs were billed to or
paid by the actual protesters. In light of this unrebutted contention, and
in the absence of any written retainer agreements or other evidence that the
protesters were obligated in any way to pay the firm for the costs incurred
in pursuing the protest, the failure of the protesters' attorneys to
disclose their billings and any financing arrangement that may have existed
prevents us from determining whether the costs in question are properly
considered those of the protesters. Without such evidence, we cannot rule
out the possibility that the protesters might recover costs they did not
incur.

Accordingly, we deny the request that our Office recommend that the
protesters recover the costs claimed here.

Comptroller General
of the United States

Notes

1. The firms requesting costs are: A-1 Movers of America, Inc.; A-1 Moving &
Storage, Inc.; Able Forwarders, Inc.; A. Arnold & Son Transfer & Storage
Co., Inc.; Art and Paul Moving and Storage; Associated Forwarding, Inc.;
Associated Storage & Van, Inc.; Carlyle Van Lines, Inc.; Carrier Transport
Int'l, Inc.; Coastal Moving Co., Inc.; Conrad Group, Inc.; Davidson Transfer
& Storage Co., Inc.; Denoyer Bros. Moving & Storage Co.; Door to Door Moving
& Storage Co.; Exhibit Transport, Inc.; Ferriss Warehouse & Storage; Fogarty
Van Lines, Inc.; Horne Storage Co., Inc.; Lynn Moving & Storage, Inc.; A.D.
McMullen, Inc.; Mid-State Moving & Storage, Inc.; Movers Unlimited, Inc.;
Nilson Van & Storage; Northwest Consolidators, Inc.; Ogden Transfer and
Storage Co.; OK Transfer & Storage, Inc.; Pan American Van Lines, Inc.;
Riverbend Moving & Storage, Inc.; Royal Forwarding, Inc.; Sells Service,
Inc.; South Hills Movers, Inc.; Stanley's Transfer Co., Inc.; Starck Van
Lines, Inc.; StarTrans Int'l, Inc.; Stearns Forwarders, Inc.; Stearns Moving
& Storage of Kokomo, Inc.; Von der Ahe Van Lines, Inc.; Wainwright Transfer
Co. of Fayetteville, Inc.; and Weathers Bros.

2. The other protesters also requested that we recommend the amount they
should be reimbursed for filing and pursuing their protests of the partial
set-aside. We are addressing their cost claim separately.

3. In response to our decision, the agency decided to eliminate the previous
partial set-aside and to designate 17 of the high volume channels as
100-percent small business set-asides. The protesters then challenged this
revised set-aside, contending that MTMC failed to establish that all of the
set-aside channels constituted economic production runs or reasonable lots,
and that the set-aside decision lacked a reasonable basis. In Aalco
Forwarding, Inc., et al., B-277241.20, B-277241.21, July 1, 1998, 98-2 CPD para.
1, recon. denied, B-277241.26, Jan. 6, 1999, 99-1 CPD para. 1, we denied these
protests of the RFP's revised set-aside, finding that the new set-aside
determination was not a partial set-aside of the entire procurement under
the applicable regulation but a total set-aside of each restricted channel.
We concluded that the set-aside had a reasonable basis and was in accord
with the applicable regulation governing total set-asides, FAR sect. 19.502-2,
which does not require a total set-aside to constitute an economic
production run or reasonable lot.

4. The protesters' attorneys have not addressed the agency's position that
they failed to adequately document the claim with copies of client billings
but stated that, even if the agency had originally asked for such
information, "we would have advised that certain of the items are subject to
the attorney-client and attorney-work product privileges and would not have
been disclosed even if they existed." Claim for Costs at 8.