TITLE: B-296697.2, Intercon Associates, Inc.--Costs, June 14, 2006
BNUMBER: B-296697.2
DATE: June 14, 2006
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B-296697.2, Intercon Associates, Inc.--Costs, June 14, 2006

   Decision

   Matter of: Intercon Associates, Inc.--Costs

   File: B-296697.2

   Date: June 14, 2006

   Patrick K. O'Keefe, Esq., Sidley Austin LLP, for the protester.

   John E. Cornell, Esq., General Services Administration, for the agency.

   Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. GAO does not recommend reimbursement of costs incurred in filing and
   pursuing unsuccessful protest issue where issue is readily severable from
   successful issue, i.e., is based on different set of facts and legal
   theory.

   2. Agency's use of a "page counting" method, that is, counting pages in
   protest brief that discussed successful protest issue, is a reasonable
   approach to determining amount of protest costs to be reimbursed, in
   absence of more probative evidence.

   DECISION

   Intercon Associates, Inc. requests that we recommend reimbursement of its
   costs--in the amount of $76,014.06--of successfully pursuing its protest
   of the terms of request for proposals (RFP) No. GS00V05PDR0021, issued by
   the General Services Administration (GSA) for an electronic forms
   (e-forms) creation capability. GSA's position is that the reimbursement
   should be limited to $25,328.03.

   We deny the claim for the requested amount and recommend reimbursement in
   the amount calculated by the agency, $25,328.03.

   BACKGROUND

   In protesting the terms of the RFP, Intercon raised two allegations: the
   RFP was unduly restrictive because it unnecessarily precluded it from
   competing for the requirement, and the agency was biased in favor of
   another competitor, Formatta Corporation. We developed the record, and in
   the course of that effort, Intercon filed an objection to the agency's
   document production after receiving the agency report. The thrust of
   Intercon's objection was that the agency had not provided adequate
   discovery relating to its bias allegation. In response, the agency advised
   our Office that it had completed its evaluation of proposals during the
   pendency of Intercon's protest, that it had determined that an offeror
   other than Formatta was the apparent successful offeror, and that,
   accordingly, Intercon's bias argument and related discovery request were
   essentially academic. We agreed with the agency and did not call for
   further document production in connection with Intercon's bias allegation.

   Thereafter, we conducted an "outcome prediction" alternative dispute
   resolution (ADR) procedure, during which our attorney advised the agency
   that he believed that GAO would agree with the protester that the
   solicitation was unduly restrictive. He also noted that, because the
   record had been fully developed, he believed GAO would recommend that
   Intercon be reimbursed the costs associated with filing and pursuing its
   protest, should it be necessary to issue a decision. In the wake of the
   ADR procedure, the agency advised our Office that it intended to withdraw
   the statement of work included in the solicitation and issue a revised
   solicitation; the agency also stated that it would entertain Intercon's
   request for protest costs. In light of this, we dismissed Intercon's
   protest as academic. (B-296697, Sept. 27, 2006.)

   Intercon tendered a certified claim for its protest costs to the agency,
   requesting reimbursement of $76,014.06. After reviewing the claim, GSA
   offered to reimburse Intercon $25,328.03. The agency disallowed $1,818.75
   of the claimed amount on the basis that those costs were incurred in
   connection with "lobbying" activities engaged in by Intercon in an
   apparent effort by the firm to achieve settlement with the agency.
   Intercon concedes the propriety of disallowing this amount. Intercon
   Request for Costs, Feb. 8, 2006, at 3. The agency disallowed $48,867.28 of
   the claimed amount on the ground that this amount related to the bias
   allegation; because Intercon did not prevail on this issue, and because
   the issue was clearly severable from the unduly restrictive specification
   issue, the agency's view was that there was no basis for reimbursing these
   costs.

   SEVERABILITY OF PROTEST ISSUES

   Intercon takes issue with GSA's decision to disallow $48,867.28 of its
   claimed costs. According to the protester, both issues in its protest
   arose from the same core group of facts and legal theories, and were
   inextricably intertwined, such that there is no reasonable basis for the
   agency to disallow costs relating to the bias allegation.[1]

   While, as a general rule, we may find that a successful protester should
   recover the costs incurred with respect to all issues, not merely those
   upon which it prevailed, Sodexho Mgmt., Inc.--Costs, B-289605.3, Aug. 6,
   2003, 2003 CPD para. 136 at 29, we nonetheless will recommend that a
   protester's recovery of protest costs be limited to the issues on which
   the protest was sustained where the unsuccessful issues are so clearly
   severable as to essentially constitute a separate protest. Id. Issues are
   severable where they do not share a common core of facts and are not based
   upon related legal theories. Id.

   We agree with the agency that the issues here are severable. The core
   facts underlying the allegations are different. Intercon's bias allegation
   focused on the agency personnel involved in preparation of the
   solicitation; the timing of various changes to the solicitation; various
   prior acquisitions for the agency's e-forms capability; and another,
   apparently related, e-forms project performed by GSA on behalf of the
   Small Business Administration. Essentially, Intercon attempted to show
   that one faction of GSA personnel was biased in favor of Formatta's
   proposed e-forms solution, and that this faction gained control of the
   subject acquisition from another faction of GSA personnel and amended the
   solicitation at the eleventh hour in an attempt to have Formatta win the
   competition. In contrast, Intercon's restrictive specification assertion
   was based solely on facts relating to Intercon's capabilities as a
   provider of an e-forms solution and the terms of the RFP; Intercon was
   able to show that it could provide what the agency required (as expressly
   described in its solicitation), and that aspects of the specifications
   improperly dictated a solution that was inconsistent with Intercon's
   capabilities and proposed solution. The two assertions also were based on
   distinct legal theories: agencies are precluded from favoring one
   competitor over another, and restrictive specifications may only be used
   to the extent necessary to meet the agency's actual minimum requirements.
   An adequate evidentiary showing under one theory may be immaterial to
   success under the other. In view of these considerations, reimbursement of
   protest costs would be appropriate only with regard to the restrictive
   specification protest basis.

   CALCULATION OF THE ALLOWABLE AMOUNT

   As noted above, the agency has agreed to reimburse Intercon $25,328.03,
   which is GSA's estimate of the costs attributable to the restrictive
   specification issue. This estimate is based on the number of pages devoted
   to that issue in Intercon's comments, as compared to the number of pages
   devoted to Intercon's bias allegation in that same pleading. (The agency
   used Intercon's comments in this exercise because the ratio between the
   two issues in this pleading was more favorable to the firm than the ratio
   in its protest letter. GSA's Contracting Officer's Response to Intercon's
   Cost Request, Jan. 10, 2006, at 2.) GSA explains that it was forced to
   take this approach because the attorneys' bills Intercon presented in
   support of the claim were so heavily redacted that the agency was unable
   to determine what costs were attributable to each issue. (Intercon
   advanced the attorney-client privilege and attorney work product doctrine
   as the bases for redacting its billing statements.)

   A protester seeking to recover its protest costs must submit evidence
   sufficient to support its claim that those costs were incurred and are
   properly attributable to filing and pursuing the protest. Stocker & Yale,
   Inc.--Claim for Costs, B-242568.3, May 18, 1993, 93-1 CPD para. 387 at 4.
   In circumstances where information submitted to support a claim is not
   detailed enough to establish how much of the claimed amount was incurred
   in pursuit of the successful protest issues, we have recognized that using
   a page count method is a reasonable means of determining this amount. ViON
   Corp.--Costs, B-256363.3, Apr. 25, 1995, 95-1 CPD para. 219 at 3-6.
   Accordingly, given the absence of more probative evidence from Intercon,
   we find that it was reasonable for the agency to use a page count to
   determine the amount of the claimed costs attributable to Intercon's
   restrictive specification argument. It follows that we have no basis to
   question the $25,328.03 reimbursement proposed by the agency.

   COSTS ASSOCIATED WITH INTERCON'S GAO FILING

   Intercon also seeks reimbursement of an additional $4,105.65, the cost of
   filing this claim with our Office. While we may recommend the payment of
   such costs as a means of encouraging an agency's expeditious and
   reasonable consideration of a claim, 4 C.F.R. sect. 21.8(f)(2); Pulau
   Elec. Corp.--Costs, B-280048.11, July 31, 2000, 2000 CPD para. 122 at 11,
   there is no indication that the agency here unreasonably delayed
   consideration of Intercon's claim, nor has Intercon prevailed upon any of
   the arguments advanced before us. Under these circumstances, we decline to
   recommend reimbursement of these costs.

   In light of the foregoing discussion, we deny the claim for the requested
   amount and recommend that Intercon be reimbursed the amount proposed by
   GSA, $25,328.03.

   Anthony H. Gamboa

   General Counsel

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

   [1] Intercon seems to suggest that, since we did not expressly deny its
   bias allegation, it should be reimbursed for its costs of pursuing that
   issue. However, severability, not our failure to deny an issue on the
   merits, is determinative of whether we will recommend reimbursement of
   costs for a certain issue.