B-295352.5, Department of State--Costs, August 18, 2005
Decision
Matter of: Department of State--Costs
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
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,
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,
Anthony H. Gamboa
General Counsel
[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,