Decided: February 28, 2022
Agency: Department of the Army
Disposition: Request Granted
This case provides unique insight into Alternative Dispute Resolution, as well as the mechanics of cost reimbursement. GAO may use ADR procedures during a protest at the request of one of the parties, or on its own initiative, where the GAO deems appropriate. Not every matter before GAO warrants a substantive decision on the merits, and ADR can be appropriate, especially where the issues at hand are not legally complex or new.
Companies should thoroughly evaluate the potential for success with any protest situation. The time, expense, and negative consequences associated with challenging your Government customer warrants a strategic evaluation between your executive leadership, capture, proposal, and legal teams. General Counsel has the experience and drive to assist clients with assessing award decisions, developing legal courses of action, filing either as an unsuccessful bid protestor or the awardee intervenor, litigating the protest, participating in ADR, and developing post-decision lessons learned for more effective future business development practices.
Summary of Facts
WorldWide Language Resources, Inc. (WorldWide) protested the issuance of a task order by the Army to Valiant Government Services LLC, under request for task order proposals No. W911W4-18-R-AFR3, issued for linguist services in support of the United States Africa Command. At the agency’s request, GAO conducted an outcome prediction alternative dispute resolution (ADR).
In outcome prediction ADR, the GAO attorney handling a protest convenes the parties and explains what he or she believes the likely outcome will be, and the reasons for that belief. A GAO attorney will inform the parties that a protest is likely to be sustained only if he or she has a high degree of confidence regarding the outcome. A willingness to indicate a protest is likely to be sustained is generally an indication that the protest is viewed as clearly meritorious, and satisfies the “clearly meritorious” requirement for recommending reimbursement of protest costs.
Here, GAO informed the parties that the likely outcome was that the protest would be sustained and recommended the Army take corrective action and making a new award decision. WorldWide subsequently filed a claim for protest costs with the agency, which included a request for reimbursement of attorneys’ fees at a rate higher than the statutory maximum rate of $150 per hour.
Basis of Protest
WorldWide, with the concurrence of the Army, requests that GAO recommend that WorldWide be reimbursed attorneys’ fees at a rate higher than the $150 per hour statutory rate limit. The Army advised GAO that the request is fully substantiated and that it has no objection.
GAO explained that 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 limited to $150 per hour, except where the protester is a small business concern. However, GAO noted that 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.”
GAO has previously found that the justification for an upward departure from the $150 limit is self-evident if the claimant asserts that the cost of living has increased, as measured by the Department of Labor’s (DOL) Consumer Price Index (CPI). Here, WorldWide provided the agency a detailed explanation of its calculation of the enhanced attorney fee rate of $269.93 to $272.09 per hour (depending on the month of billing) using DOL’s U.S. City Average CPI and the agency does not object. Use of DOL’s U.S. City Average CPI is consistent with GAO’s prior decisions. Because the Army does not object, GAO recommended reimbursement at the claimed higher rates.
Our Government Contracts Practice Group has extensive experience in government contract law, helping clients solve their government contract problems relating to the award or performance of a federal government contract, including bid protests, contract claims, small business concerns, and teaming and subcontractor relations. If you need more guidance or information, contact Craig Lawless, Senior Counsel in our Government Contracts practice area at General Counsel, P.C., 703-266-1865.