TITLE:  Department of the Army--Modification of Remedy, B-292768.5, March 25, 2004
BNUMBER:  B-292768.5
DATE:  March 25, 2004
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Department of the Army--Modification of Remedy, B-292768.5, March 25, 2004

   Decision
    
    
Matter of:   Department of the Army--Modification of Remedy
    
File:            B-292768.5
    
Date:              March 25, 2004
    
Richard B. Oliver, Esq., and Gregory M. Murphy, Esq., McKenna Long &
Aldridge, for the protester.
Capt. Tami L. Dillahunt, Army Materiel Command, for the agency.
Louis A. Chiarella, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Protest costs, including attorneys* fees, need not be allocated between
protest issue that was sustained and issues that were not addressed or
denied in decision where all issues were related to the same core
allegation, which was sustained; since issues not addressed or denied were
not distinct and severable from the sustained issue, attorneys* fees
relating to those issues are reimbursable.
DECISION
    

   The Department of the Army requests that our Office modify our decision,
Continental RPVs, B-292768.2, B-292768.3, Dec. 11, 2003, 2004 CPD P: __ ,
insofar as that decision recommended that the protester be reimbursed the
costs of filing and pursing its protests, including reasonable attorneys'
fees. The agency contends that it should not be required to pay attorneys*
fees concerning protest issues on which the protester was unsuccessful.
    

   We affirm our decision.
    
Continental protested the award of a contract to Griffon Aerospace, Inc.
under request for proposals (RFP) No. DAAH01-02-R-0158, issued by the Army
Aviation and Missile Command (AMCOM), Department of the Army, for the
acquisition of an aerial remotely piloted vehicle target (RPVT) system and
services.  Continental argued that AMCOM*s evaluation of proposals,
including the evaluation of Griffon*s past performance, was unreasonable
and that the resulting award decision was improper. 
    
We denied Continental*s protest in part and sustained it in part. 
Specifically, we found that while AMCOM*s evaluation of the offerors*
technical proposals was reasonable and consistent with the solicitation*s
evaluation factors, the agency*s evaluation of Griffon*s past performance
was not reasonable.[1]  In light of our determination that the agency*s
evaluation of Griffon*s past performance was unreasonable, and that a new
evaluation and source selection decision were necessary, our decision did
not address Continental*s protest to the extent it claimed that AMCOM*s
best value determination was also flawed.  We recommended that the agency
reevaluate Griffon*s past performance, make a new source selection
decision in accordance with the terms of the RFP if necessary, and that
Continental be reimbursed its costs of filing and pursuing its protest,
including reasonable attorneys* fees.
    
The agency now requests that we modify our recommendation with respect to
the award of protest costs.  Specifically, the Army argues that
Continental is not entitled to reimbursement of all of its protest costs,
and Continental should recover only those reasonable costs relating to the
protest issue that was sustained.
    
Under the Competition in Contracting Act of 1984 (CICA), as amended, 31
U.S.C. S: 3554(c)(1)(2000), our Office may recommend that the protester be
reimbursed the costs of filing and pursuing the protest, including
reasonable attorneys* fees, where we find that a solicitation or the award
of a contract does not comply with a statute or regulation.  This is to
relieve parties with valid claims of the burden of vindicating the public
interests that Congress seeks to promote.  TRS Research--Costs,
B-290644.2, June 10, 2003, 2003 CPD P: 112 at 3; Parmatic Filter
Corp.--Costs,
B-285288.5, Aug. 27, 2001, 2001 CPD P: 148 at 3.
    
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.  AAR Aircraft Servs.--Costs, B-291670.6, May 12, 2003, 2003
CPD P: 100 at 9; Price Waterhouse--Claim for Costs, B-254492.3, July 20,
1995, 95-2 CPD P: 38 at 3; Data Based Decisions, Inc.--Claim for Costs,
B-232663.3, Dec. 11, 1989, 89-2 CPD P: 538 at 4.  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 CICA.  AAR Aircraft
Servs.--Costs, supra; TRESP Assocs., Inc.--Costs, B-258322.8, Nov. 3,
1998, 98-2 CPD P: 108 at 2.  Nevertheless, failing to limit the recovery
of protest costs in all instances of partial or limited success by a
protester may also result in an unjust award determination.  Accordingly,
in appropriate cases we have limited the award of protest costs to
successful protesters where a part of their costs is allocable to a
protest issue that is so clearly severable as to essentially constitute a
separate protest.  See, e.g., Interface Floorings Sys., Inc.--Claim for
Attorneys* Fees,
B-225439.5, July 29, 1987, 87-2 CPD P: 106 at 2-3.  In determining whether
protest issues are so clearly severable as to essentially constitute
separate protests, we consider, among other things, the extent to which
the claims are interrelated or intertwined--i.e., the successful and
unsuccessful claims share a common core set of facts, are based on related
legal theories, or are otherwise not readily severable.  See Sodexho
Mgmt., Inc.--Costs, B-289605.3, Aug. 6, 2003, 2003 CPD P: 136 at 29;
Department of the Navy--Recon. and Modification of Remedy, B-246784.4,
Feb. 17, 1993, 93-1 CPD P: 147 at 6-7.
    
The Army argues that the one issue upon which Continental*s protest was
sustained--that the agency unreasonably evaluated the awardee*s past
performance--was so clearly severable from the other issues raised by the
protester as to essentially constitute a separate protest.  In support
thereof the agency points to the fact that the past performance factor was
separate from the technical, operational, management, and price factors
set forth in the RFP, that a separate group of agency employees performed
the past performance evaluation, and that Continental was able to address
each issue separately and distinctly in its protests.  The Army also
contends that Continental filed a supplemental protest and identified an
additional ground for protest (regarding the evaluation of the awardee*s
technical proposal), which was denied.  The Army argues that the agency
should not be required to reimburse Continental for all of its costs, when
the protester raised five separate issues in two different protests, and
only one of those issues was sustained. 
    
In this case, Continental raised several significant issues concerning the
evaluation of proposals under various evaluation factors and the resulting
source selection decision.  The protester established that the Army*s
evaluation of the awardee*s past performance was unreasonable and
inconsistent with the terms of the solicitation.  While our decision did
not need to address Continental*s protest that the award decision was also
unreasonable--in light of our determination that the Army*s evaluation of
the awardee*s past performance was unreasonable and that a new evaluation
and source selection decision were necessary--it is evident that the
agency*s decision here was improper because it was based on a flawed
evaluation. 
    
In our view, the successful and unsuccessful contentions raised by
Continental share a common core set of facts and are based on related
legal theories, and therefore cannot reasonably be viewed as a series of
discrete claims.  Accordingly, we conclude that the issues raised are
intertwined parts of Continental*s basic objection
that the Army misevaluated offerors* proposals, see AAR Aircraft
Servs.--Costs, supra, and we see no reason here to find Continental*s
various challenges to the agency*s evaluation of offerors* proposals to
essentially constitute separate protests.  Contrary to the Army*s
position, we view the fact that the agency utilized a separate evaluation
team and the fact that the protester discretely articulated and organized
its various protest issues as of little importance in our determination of
whether costs should be limited.  
    
In sum, the fact that Continental 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, see
TRESP Assocs., Inc.--Costs, supra, and we see no reason why Continental*s
recovery of protest costs should be limited to one or more particular
issues here.
    
We recommend that Continental be reimbursed the reasonable of costs of
filing and pursuing the protests, including those incurred here, i.e.,
responding to the agency*s modification of remedy request.  See AAR
Aircraft Servs.--Costs, supra.  The protester should submit its claim for
costs, detailing and certifying the time expended and costs incurred,
directly to the Army within 60 days of receipt of this decision.  4 C.F.R.
S: 21.8(f)(1) (2003).
    
Anthony H. Gamboa
General Counsel
    

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

   [1] The solicitation required offerors to submit information for prior
contracts performed which were the *same or similar* to the effort
required here.  The agency evaluated Continental (the incumbent
contractor) and Griffon as each being of low risk under this performance
evaluation factor, although the record contained no basis upon which the
Army could reasonably have determined that the awardee*s past performance
was in fact the *same or similar* in either size or scope to the
requirements here.