TITLE:  TRS Research--Costs, B-290644.2, June 10, 2003
BNUMBER:  B-290644.2
DATE:  June 10, 2003
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TRS Research--Costs, B-290644.2, June 10, 2003

   Decision
    
    
Matter of:    TRS Research--Costs
    
File:B-290644.2
    
Date:              June 10, 2003
    
Robert G. Fryling, Esq., Blank Rome Comisky & McCauley, for the protester.
Capt. Gregory A. Moritz, Department of the Army, for the agency.
Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Protester's request for recommendation that it be reimbursed costs of
pursuing protest is denied where protester fails to document the
reasonableness of hourly rate claimed for attorney's services and fails to
provide any evidence that it is obligated to pay the legal fees claimed
regardless of whether they are recovered from the government.
DECISION
    
TRS Research requests that we recommend that the Department of the Army,
Military Traffic Management Command (MTMC), reimburse the firm $17,425 for
its costs of filing and pursuing its protest under request for proposals
(RFP) No. DAMT01-02-R-0028, for the lease of intermodal container
equipment and provision of related program management services.
    

   We deny the request.
    
This claim arises from a protest filed by TRS Research alleging that the
agency had improperly bundled its requirements.  By decision of
September 13, 2002, we sustained the protest, finding that the agency had
bundled the procurement without complying with the requirements of the
Small Business Act, at 15 U.S.C. S: 632(o)(2) (2000), and its implementing
regulations, at 13 C.F.R. S: 125.2(d) (2002). 
    
We recommended that the agency conduct the required statutory and
regulatory reviews to determine whether the bundling of requirements was
justified, revise the RFP, if appropriate, and request new proposals.  We
also recommended that the protester be reimbursed the costs of filing and
pursuing the protest, including attorneys' fees.  The protester was
advised to submit to the contracting agency, within 60 days of receiving
our decision, its detailed claim of the time expended
and costs incurred in pursuing its protests.  See Bid Protest Regulations,
4 C.F.R. S: 21.8(f) (2003).
    
TRS submitted its claim to the agency on October 2, seeking reimbursement
of legal expenses associated with pursuit of the protest.  The claim
briefly set out information regarding the time expended by the attorney,
the type of work performed, and the dollar amount claimed for the work. 
The legal fees were calculated by multiplying the identified time by a
claimed hourly rate of $425. 
The claim sought a total of $17,722.50 in protest costs.
    
By letter of November 12, the contracting officer notified protester's
counsel that the agency believed that the claim contained charges for work
unrelated to the protest or otherwise unallowable, and was based on what
appeared to be an unreasonably high hourly rate.  Although she did not
question the overall amount, the contracting officer expressed concern
that all of the legal work performed was charged at a rate of $425 for a
senior attorney.  In her opinion, it would have been more reasonable to
charge the work at a lower associate attorney rate, with a limited amount
of work charged at the higher supervisory attorney rate.  Based upon her
research of claims decisions issued by our Office, the contracting officer
concluded that a rate of $425 seemed excessive.  For purposes of settling
the matter, MTMC offered payment of TRS's protest costs at an hourly rate
of $350, for a total payment of $13,125.
    
On November 15, TRS refused the agency's offered payment amount and
rejected the suggested hourly rate of $350.  Counsel for TRS explained
that he was the sole attorney on the protest, so all of the legal services
performed are charged at his senior attorney hourly rate of $425.  After
deleting some charges that TRS counsel acknowledged were erroneously
included in the initial claim, TRS submitted a revised claim for $17,425
in protest costs.
    
In her response of November 21, the contracting officer explained that, in
order for her to assess the reasonableness of the claimed hourly rate of
$425, the protester needed to provide proof that the claimed rate is the
one customarily charged for his services and that it is within the bounds
of rates charged by senior attorneys for similar work in the Philadelphia
area, where counsel for TRS works.  She also requested proof that TRS had
a firm obligation to pay for the claimed legal services at the claimed
hourly rate, regardless of whether payment was recovered from the agency;
in this regard, the contracting officer suggested that the firm submit a
copy of paid invoices for the claimed services.
    
By letter of November 26, TRS counsel certified that the amount claimed
had been billed to his client, but stated that the invoice had not yet
been paid.  No copy of an actual invoice sent to TRS, or any information
as to its delivery to or receipt by TRS, or any evidence of an agreement
with TRS to pay for legal services at the claimed $425 hourly rate, was
provided by the firm.  Despite MTMC's request for that information, TRS
counsel failed to definitively state whether the legal fees remained due
from TRS even if they were not recovered from MTMC.
    
As to his claimed hourly rate of $425, counsel explained that his law firm
set the rate to reflect his 30 years of experience, and that it resulted
from a market analysis by the firm of law firm fees.  No supporting
documentation was provided, however, to substantiate the claim, to show
the hourly rate was the one customarily charged by TRS counsel, or to
prove that similar rates are charged by attorneys for similar work in the
Philadelphia area.  As to the referenced market analysis purportedly
conducted by his firm, TRS counsel failed to provide the analysis, stating
only that he does not have access to it.  TRS counsel then urged the
contracting officer not to limit her review of the reasonableness of his
rate to a comparison of rates charged by attorneys in the Philadelphia
area; rather, he suggested that she consider the rates of government
contracts attorneys nationwide.  TRS counsel concluded his November 26
correspondence with an offer to resolve the matter by payment of a reduced
amount of $16,000.
    
TRS attempted to contact the contracting officer in late December to
inquire about payment of the firm's claim.  On January 2, 2003, the
contracting officer denied the protester's claim for costs as inadequately
supported, based on the firm's failure to demonstrate both the
reasonableness of the claimed hourly rate of $425 and any obligation to
pay the claimed legal fees even if they were not recovered from MTMC. 
This claim to our Office followed.  TRS requests that we resolve the
amount of legal fees to be recovered from the agency in pursuit of its
protest.[1]
    
Under the Competition in Contracting Act of 1984, as amended, 31 U.S.C.
S: 3554(c)(1) (2000), our Office may recommend that a protester be
reimbursed the costs of filing and pursuing a protest, including
reasonable attorneys' fees, where we find that a solicitation or the award
of a contract does not comply with statute or regulation.  This is to
relieve parties with valid claims of the burden of vindicating the public
interests that Congress seeks to promote.  Hydro Research Science,
Inc.--Costs, B-228501.3, June 19, 1989, 89-1 CPD P: 572 at 3.  A protester
seeking to recover the costs of pursuing its protest, however, must submit
sufficient evidence to support its monetary claim; the amount claimed may
be recovered to the extent that the claim is adequately documented and is
shown to be reasonable.  Berkshire Computer Prods., Inc.--Costs,
B-240327.3, Dec. 30, 1994, 95-1 CPD P: 6 at 2.  Although we recognize that
the requirement for documentation may sometimes entail certain practical
difficulties, we do not consider it unreasonable to require a protester
not only to document in some detail the amount and purpose of activities
associated with the claimed effort, but to establish that the claimed
hourly rates reflect the customary rates for similar work performed by
attorneys in their community. 
See Galen Med. Assocs., Inc.--Costs, B-288661.6, July 22, 2002, 2002 CPD
P: 114 at 4; Armour of Am., Inc.--Costs, B-237690.2, Mar. 4, 1992, 92-1
CPD P: 257 at 7.  Further, in order for a protester to recover costs,
there must be evidence to show that it has an obligation to pay the costs
regardless of whether they are recovered from the government; an
obligation to pay costs that is contingent upon recovery from the
government may not properly be reimbursed.  See Boines Constr. & Equip.
Co., Inc.--Costs, B-279575.4, Apr. 5, 2000, 2000 CPD P: 56 at 4-5.
    
Our review of the record confirms the reasonableness of the agency's
conclusion that the protester has not adequately documented its protest
costs.  Despite the passage of many months and several requests from the
agency to do so, the protester has not submitted any documentation to show
that the $425 hourly rate claimed by TRS counsel is representative of that
charged for similar services in the Philadelphia area, where he practices
law.
    
We have repeatedly held that, while higher rates may be considered for
attorneys with additional experience, the reasonableness of an attorney's
hourly rate must be documented as consistent with the customary fee
charged for similar work in the community by other attorneys.  See Armour
of Am., Inc.--Costs, supra.  Here, while TRS counsel has stated that he
has 30 years of experience, he has provided no information as to whether
similar attorneys' fees are customarily charged in his locale for similar
work.[2]  Clearly, TRS could have demonstrated the reasonableness of the
claimed hourly rate by providing, for example, a survey of local law
firms' rates.  See, e.g., Bay Tankers, Inc*Costs, B-238162.4, May 31,
1991, 91-1 CPD P: 524 at 3 (protester submitted attorneys' fees
information published in a local legal periodical as support for the
reasonableness of its claimed protest costs).   It is also conceivable
that the market analysis said to have been performed by TRS counsel's firm
could have provided the necessary comparative base for review of the
reasonableness of the claimed rate; TRS did not, however, submit to the
agency or our Office, either under the protective order issued in the
protest or otherwise, a copy of the analysis.  In short, the
reasonableness of the claimed hourly rate--although repeatedly questioned
by the agency, and despite several opportunities for TRS to submit the
requested supporting documentation--remains wholly unsubstantiated.
    
In addition to questioning the claimed hourly rate, the contracting
officer also asked TRS to provide evidence establishing that it was
obligated to pay the legal fees regardless of whether they were recovered
from the government.  In his response to the contracting officer's
request, TRS counsel *certified* that his firm *billed TRS* and that TRS
*owes the legal fees for pursuit of the protest . . . .*  Letter from TRS
Counsel, Nov. 26, 2002, at 2.  The sole documentary support for the claim
is a two-page document prepared by TRS counsel's law firm, whose name and
address appear at the top.  The document, dated September 30, 2002,
contains a list of dates, hours worked, and dollar amounts, along with a
brief description of the work performed.  At the bottom of the second
page, the words *Invoice Total* appear, followed by a dollar amount
representing the total of the individual charges listed.  There is nothing
in this document to show that it has ever been submitted to TRS for
payment, much less paid.[3]  There is no other evidence, such as a
retainer agreement, to establish TRS's obligation to pay the legal fees
claimed.  In view of TRS's failure to produce any such evidence, despite
specific requests to do so, we cannot conclude that TRS has made the
required showing that it is obligated to pay the legal fees regardless of
whether they are recovered from the government.
    
In these circumstances, we deny the request for a recommendation that TRS
be reimbursed its claimed protest costs.  It is the protester's obligation
to demonstrate the reasonableness of the claim and thus that payment of
the claim with government funds is justified.  TRS simply has not made the
requisite showing here.  While we recognize that TRS may have incurred
costs in pursuing its protest, claimed costs cannot be recovered where
they are not adequately documented.  Galen Med. Assocs., Inc.--Costs,
supra.
    
Anthony H. Gamboa
General Counsel
    

   ------------------------

   [1] The agency filed a report with our Office responding to the claim. 
TRS chose not to respond to that report.
[2]  While TRS counsel suggests that his hourly rate should instead be
compared to those of government contracts attorneys nationwide, the
reasonableness of an attorney's hourly rate is generally measured by
comparison to the rates charged for similar work in the particular
community where that attorney practices, not in other communities.  See
Galen Med. Assocs., Inc.--Costs, supra; Armour of Am. Inc.--Costs, supra. 
In any event, our review of the record shows that TRS did not provide any
documentation to support the general contention that the claimed hourly
rate is representative of that charged by government contract attorneys
nationwide.
[3]  In his November 26 letter, TRS counsel acknowledged that the bill had
not yet been paid as of that date, almost 6 months after the protest was
filed and more than 3 months after the decision on the protest was
issued.  There is no evidence in the record that the bill even now has
been paid.