TITLE: B-295352.5, Department of State--Costs, August 18, 2005
BNUMBER: B-295352.5
DATE: August 18, 2005
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B-295352.5, Department of State--Costs, August 18, 2005

   Decision

   Matter of: Department of State--Costs

   File: B-295352.5

   Date: August 18, 2005

   Dennis J. Gallagher, Department of State, for the agency.

   David F. Innis, Esq., Rogers Joseph O'Donnell & Phillips, for Inter-Con
   Security Systems, Inc., the claimant.

   Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Request that Comptroller General recommend reimbursement of attorneys'
   fees at a rate higher than the statutory cap of $150 per hour based on
   increase in cost of living is granted where protester's claim filed with
   agency presented a reasonable basis for the adjustment.

   DECISION

   The Department of State (DOS) requests that our Office provide a
   recommendation as to whether an enhanced attorney fee rate should be paid
   in connection with a claim filed with the agency by Inter-Con Security
   Systems, Inc., for reimbursement of its costs of pursuing a bid protest
   and defending a request for reconsideration.

   Inter-Con protested the award of a contract to Wackenhut International,
   Inc. (WII) under solicitation No. S-IV100-2002-Q-0567, issued by DOS for
   guard services in Abidjan, Ivory Coast. We sustained Inter-Con's protest
   because we found that WII had provided insufficient information--and the
   agency lacked any other sufficient information--to establish that WII
   satisfied all requirements for application of a 10-percent evaluation
   preference to its proposal. Inter-Con Sec. Sys., Inc., B-295352,
   B-295352.2, Feb. 8, 2005, 2005 CPD para. 23. We recommended that DOS
   terminate WII's contract, make award to Inter-Con, and reimburse Inter-Con
   its reasonable costs of filing and pursuing the protest, including
   attorneys' fees.

   Both WII and DOS sought reconsideration of our decision. We affirmed our
   decision, but modified our recommendation to permit DOS to delay the
   termination of WII's contract and the new award to Inter-Con, and
   recommended, inter alia, that DOS reimburse Inter-Con both the reasonable
   costs of filing and pursuing its protest, including attorneys' fees, and
   the costs of responding to the agency's reconsideration request.
   Department of State; Wackenhut Int'l, Inc.--Recon. and Modification of
   Recommendation, B-295352.3, B-295352.4, Apr. 19, 2005, 2005 CPD para. 81.

   Under the Competition in Contracting Act of 1984, as amended, where, as
   here, the Comptroller General recommends that a successful protester's
   costs, including reasonable attorneys' fees, be reimbursed, those fees may
   not exceed $150 per hour "unless the agency determines, based on the
   recommendation of the Comptroller General on a case by case basis, that an
   increase in the cost of living or a special factor, such as the limited
   availability of qualified attorneys for the proceedings involved,
   justifies a higher fee." 31 U.S.C. sect. 3554(c)(2)(B) (2000).

   As part of its claim for costs filed with the agency, Inter-Con requested
   reimbursement of attorneys' fees at rates of $196.89 to $197.77 per hour.
   DOS has requested our recommendation as to whether these "enhanced" fees
   should be paid.[1]

   We have previously reasoned that the justification for an upward fee
   adjustment is self-evident if the claimant alleges that the cost of living
   has increased, as measured by the Department of Labor's Consumer Price
   Index (CPI). Sodexho Mgmt., Inc.--Costs, B-289605.3, Aug. 6, 2003, 2003
   CPD para. 136 at 41. In this regard, we have declined to impose a
   requirement that a claimant do more than request an adjustment and present
   a basis upon which the adjustment should be calculated. Id.; see Brickwood
   Contractors, Inc. v. United States, 49 Fed. Cl. 148, 164 (2001);
   California Marine Cleaning Servs., Inc. v. United States, 43 Fed. Cl. 724
   (1999). Where a claimant meets this standard, and an agency does not
   articulate any objection, we will grant a claimant's request for a
   recommendation in favor of a cost of living adjustment to the fee cap.
   Sodexho Mgmt., Inc.--Costs, supra.

   In support of its claim for attorneys' fees above the $150 level,
   Inter-Con provided a detailed explanation of its calculation of the rates
   and included a printout of the "All Urban Consumers" CPI for the San
   Francisco-Oakland-San Jose, California area. Inter-Con Claim Letters,
   dated April 8 and 26, 2005. Use of the "All Urban Consumers" CPI for a
   specific area is consistent with our decision in Sodexho. See Sodexho
   Mgmt., Inc.--Costs, supra, at 43 n.33. In requesting our recommendation,
   DOS agrees that the protester's "request appears to be consistent with the
   standards followed in [Sodexho]," and provides no specific objection to
   the higher fees. DOS Letter, June 3, 2005. We have reviewed Inter-Con's
   calculation in support of the higher requested fees, and find that they
   appear properly supported and reasonable. Accordingly, we recommend that
   DOS pay the higher attorneys' fees claimed.

   Anthony H. Gamboa

   General Counsel

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   [1] DOS apparently concedes the appropriateness of all other submitted
   claims. DOS has stated that, to the extent our Office concurred that the
   higher attorneys' fees should be paid, it intended to "pay the claims
   submitted for the protest costs of Inter-Con and for its costs of
   responding to the requests for reconsideration." DOS Letter, May 31, 2005,
   at 2.