Link: GAO Opinion
Agency: Department of the Navy
Disposition: Request granted.
Request that GAO 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 claim filed with agency presented reasonable basis for adjustment.
General Counsel P.C. Highlight:
Core Tech International Corporation (CTIC), with the concurrence of the Department of the Navy, requests that GAO provide a recommendation as to whether attorneys’ fees should be paid at a rate higher than the $150 per hour statutory cap, in connection with CTIC’s request for reimbursement of its costs of pursuing a bid protest and cost claim. GAO recommends reimbursement at the higher rate.
GAO recommended reimbursement of CTIC’s costs of filing and pursuing its protest. GAO based its recommendation on the finding that a reasonable agency inquiry into the protest allegations would have shown that NAVFAC had failed to reasonably evaluate the awardee’s past performance and experience, and had conducted disparate, unequal discussions, but the agency unduly delayed taking corrective action. Under the Competition in Contracting Act of 1984, as amended, where the Comptroller General recommends that a successful protester’s costs, including reasonable attorneys’ fees, be reimbursed, those fees are capped at $150 per hour, except where the protester is a small business concern. However, this hourly rate may be increased where 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.
In Sodexho Mgmt., Inc.–Costs, B-289605.3, Aug. 6, 2003, GAO has also found that the statute contemplates an increase in the specified $150 per hour rate in order to offset any decrease in the value of the rate due to increases in the cost of living, and that it was proper to determine the appropriate cost-of-living increase with reference to the Department of Labor’s (DOL) Consumer Price Index (CPI). GAO has found that the justification for an upward departure from the $150 cap is self-evident if the claimant asserts that the cost of living has increased, as measured by DOL’s CPI. Where the claimant asserts such a claim, and the contracting agency does not articulate any objection, GAO will grant a request for a recommendation in favor of a cost-of-living adjustment to the fee cap.
Here, CTIC and NAVFAC have agreed upon the elements and overall amount of CTIC’s claim for the costs of pursuing the protest and claim, which are properly reimbursable. The only issue presented here is whether an enhanced attorney fee rate of $239.74 to $248.35 per hour (depending on the month of billing) should be applied to account for increases in the cost of living; if applied, the parties have agreed upon reimbursement in the amount of $28,863.77. In support of its claim for reimbursement at a higher rate, CTIC provides a detailed explanation of its calculation of the rates using DOL’s CPI-All Urban Consumers. Use of the All Urban Consumers CPI for a specific area is consistent with GAO’s decision in Sodexho and GAO has reviewed CTIC’s calculations in support of the higher requested fees and finds that they are properly supported and reasonable. Since NAVFAC does not object to CTIC’s calculations, GAO recommends that NAVFAC reimburse CTIC its attorneys’ fees at the claimed higher rate.