TITLE: B-310828.2, Burns and Roe Services Corporation--Costs, April 28, 2008
BNUMBER: B-310828.2
DATE: April 28, 2008
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B-310828.2, Burns and Roe Services Corporation--Costs, April 28, 2008

   Decision

   Matter of: Burns and Roe Services Corporation--Costs

   File: B-310828.2

   Date: April 28, 2008

   Gerald E. Wimberly, Esq., McGlinchey Stafford PLLC, for the protester.

   Sherry Kinland Kaswell, Esq., Department of the Interior, for the agency.

   Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   In recommending reimbursement of protest costs, GAO will not sever
   successful issues from unsuccessful issues--but rather recommends
   reimbursement for all issues raised--where issues are interconnected and
   based on common factual underpinnings.

   DECISION

   Burns and Roe Services Corporation (BRSC) requests that we recommend
   reimbursement of the costs of filing and pursuing its protest challenging
   the award of a contract to CH2M Hill Constructors, under Department of the
   Interior request for proposals (RFP) No.06SP340020, for support services
   for the Yuma Desalting Plant.

   We recommend that the agency reimburse BRSC the costs of filing and
   pursuing its protest.

   In its protest, filed on November 19, 2007, BRSC argued that the agency
   misevaluated its technical proposal and past performance, failed to hold
   meaningful discussions, and treated BRSC and CH2M disparately during the
   evaluation process. The agency submitted its report in response to the
   protest on December 21, and on January 4, 2008, BRSC submitted comments in
   response to the report. Thereafter, the GAO attorney handling the protest
   contacted the parties to assess their interest in "outcome prediction"
   alternate dispute resolution (ADR).[1] The parties agreed to participate
   in ADR, during which the GAO attorney informed the parties that she was
   specifically concerned with the protester's allegation that the agency had
   failed to hold meaningful discussions with respect to recruiting. In this
   regard, prior to the ADR the parties had submitted arguments on the issue.
   Based on the ADR, the agency agreed to take corrective action.
   Specifically, the agency agreed to reopen discussions and make a new award
   determination. Thereafter, we dismissed the protest as academic (B-310828,
   Feb. 13, 2008).

   On February 20, BRSC timely requested, pursuant to our Bid Protest
   Regulations, that it be reimbursed the costs of filing and pursuing its
   protest. 4 C.F.R. sect. 21.8(e) (2007). Interior acknowledges that BRSC is
   entitled to recover its protest costs.[2] The agency requests, however,
   that recovery be limited to only those reasonable costs relating to the
   protest issue about which the GAO attorney expressed concern during the
   ADR, that is, the agency's alleged failure to conduct meaningful
   discussions.

   As a general rule, we consider a successful protester entitled to be
   reimbursed 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 para. 100 at 9. 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 the Competition in
   Contracting Act of 1984, 31 U.S.C. sect. 3554 (c)(1)(a) (2006). AAR
   Aircraft Servs.--Costs, supra; TRESP Assocs., Inc.--Costs, B-258322.8,
   Nov. 3, 1998, 98-2 CPD para. 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 our recommendation for
   the award of protest costs where a part of those costs is allocable to an
   unsuccessful protest issue that is so clearly severable from the
   successful issues as to essentially constitute a separate protest. See,
   e.g., BAE Tech. Servs., Inc.--Costs, B-296699.3, Aug. 11, 2006, 2006 CPD
   para. 122 at 3; Interface Floorings Sys., Inc.--Claim for Attorneys' Fees,
   B-225439.5, July 29, 1987, 87-2 CPD para. 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 issues are interrelated or intertwined--i.e., the successful
   and unsuccessful arguments 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 para.136 at
   29.

   We previously have found that the three issue areas raised by BRSC in its
   protest--misevaluation of proposals, failure to hold meaningful
   discussions, and treating offerors unequally--involve the same core facts,
   and thus are intertwined for purposes of considering whether protest costs
   should be reimbursed. BAE Tech. Servs. Inc.--Costs, B-296699.3 Aug. 11,
   2006 , 2006 CPD para. 122 at 3. The agency has presented no argument or
   evidence that persuades us that our view in this regard should be changed
   under the facts of this case. Under these circumstances, we conclude that
   the evaluation, discussions, and equal treatment issues raised in BRSC's
   protest are not severable, and that BRSC therefore should be reimbursed
   its reasonable costs related to all of these issues. BRSC is not required
   to separate the costs associated with its arguments relating to the
   agency's failure to conduct meaningful discussions from the costs
   associated with the other arguments raised in its protest. BRSC should
   submit its claim to the agency.

   The request for protest costs is granted.

   Gary L. Kepplinger
   General Counsel

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

   [1] In outcome prediction ADR, the cognizant GAO attorney convenes the
   parties, at their request or at GAO's initiative, and explains what he or
   she believes the likely outcome will be and the reasons for that belief. A
   GAO attorney will engage in this form of ADR only if there is a high
   degree of confidence regarding the outcome. Where the party predicted to
   lose the protest takes action obviating the need for a written decision
   (either the agency taking corrective action or the protester withdrawing
   the protest), our Office closes the case. Although the outcome prediction
   reflects the view of the GAO attorney and, generally, that of a supervisor
   as well, it is not a decision of our Office, and it does not bind our
   Office should issuance of a written decision remain appropriate. See T
   Square Logistics Servs. Corp., B-297790.4, Apr. 26, 2006, 2006 CPD para.
   78 at 3 n.1.

   [2]Protest costs generally are awarded where an agency fails to take
   prompt corrective action in response to a clearly meritorious protest. See
   Pemco Aeroplex, Inc.--Recon. and Costs, B-275587.5, B-275587.6, Oct. 14,
   1997, 97-2 CPD para. 102 at 5. This standard is met where, after
   submitting its report, an agency takes corrective action on the protest,
   based upon outcome prediction ADR indicating that the protest would likely
   be sustained. See, e.g., National Opinion Research Ctr.--Costs,
   B-289044.3, Mar. 6, 2002, 2002 CPD para. 55 at 3; Millar Elevator Serv.
   Co.--Costs, B-284870.3, Aug. 3, 2000, 2000 CPD para. 126 at 3.