United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: A1 Procurement, JVG--Costs

File: B-404618.2

Date: April 4, 2012

Derrick Storms, Esq., for the protester.

Tracy Downing, Esq., Department of Veterans Affairs, for the agency.

Paula J. Haurilesko, Esq., and Guy R. Pietrovito, Esq., Office of the General 

Counsel, GAO, participated in the preparation of the decision.

DIGEST

Where GAO has recommended the reimbursement of protest costs, the appropriate 

rate for reimbursement of time incurred pursuing the protest by the protester’s chief 

executive officer (CEO), who is also an attorney, should be based upon the CEO’s 

salary and not a billing rate for outside legal counsel.

DECISION

A1 Procurement, JVG, of Miami, Florida, requests that our Office determine the rate 

at which the protester can be reimbursed for the time incurred by the protester’s 

chief executive officer (CEO), Mr. Storms, who is also an attorney, in pursuing its 

protest in A1 Procurement, JVG, B-404618, Mar. 14, 2011, 2011 CPD ¶ 53. 

With respect to the underlying protest, the Department of Veterans Affairs (VA)

issued request for proposals (RFP) No. VA-786-10-RP-0329 as a set-aside for 

service-disabled, veteran-owned small business (SDVOSB) concerns for ground 

maintenance services at the Golden Gate National Cemetery in San Bruno, 

California. A1 Procurement, JVG, a joint venture between A1 Procurement, LLC, 

and Greencarpet Landscaping & Maintenance, Inc., submitted a proposal. The VA 

rejected the joint venture’s proposal because its proposed price was significantly 

below the government cost estimate and the prices of the other offerors. 
Page 2 B-404618.2 

On December 8, 2010, Mr. Storms, in his capacity as CEO of A1 Procurement, 

JVG, protested to our Office.1

 On January 10, 2011, Mr. Storms submitted 

comments to the agency report in which he identified himself as an attorney with the 

law firm of Storms and Associates, P.A. The protester’s comments indicated that 

the law firm was located at the same address and had the same telephone number 

as the protester. Subsequently, we sustained the protest and recommended that 

the protester be reimbursed its reasonable costs of filing and pursuing the protest. 

See A1 Procurement, JVG, supra, at 4.

A1 Procurement, JVG, timely submitted a certified claim to the VA for its protest 

costs, in which the protester sought reimbursement for the time incurred by 

Mr. Storms in pursuing the protest. The parties disagree as to the appropriate rate 

to be applied to Mr. Storms’ time. This is the sole issue before us.

A1 Procurement, JVG, argues that Mr. Storms acted as outside legal counsel during 

the protest and therefore the protester is entitled to be reimbursed for his time 

based on the billing rate charged by outside counsel rather than be reimbursed 

based on his salary as the protester firm’s CEO. A1 Procurement makes numerous 

arguments essentially asserting that the two organizations are separate legal 

entities. In this regard, the protester contends that the retainer agreement dated 

December 3, 2010 evidences this separation and that Storms and Associates 

represented A1 Procurement during the protest. A1 Procurement Claim for Costs 

at 8.

The VA responds that Mr. Storms is an employee of the protester and cannot be 

considered to be outside legal counsel. In this respect, the VA disputes that the 

protester and Mr. Storms’ law firm are separate entities. The VA contends that the 

appropriate rate for reimbursement of Mr. Storms’ time should be based upon his 

salary as an employee of the protester.

A recommendation that an agency pay a protester’s costs is intended to relieve 

protesters with valid complaints regarding a procurement of the burden of 

vindicating the public interest which Congress seeks to promote through the bid 

protest process. It is not intended as a reward to prevailing protesters or as a 

penalty imposed upon the government. W.S. Spotswood & Sons, Inc--Claim for 

Costs, B-236713.3, July 19, 1990, 90-2 CPD ¶ 50 at 3. In this regard, a protester 

may not recover profit on its own employees’ time in filing and pursuing its protest or 

preparing its proposal. Id.; see also Spectrum Leasing Corp. v. General Servs. 

Admin., GSBCA No. 10902-C, July 27, 1992, 93-1 BCA ¶ 25,317.

 1 Mr. Storms signed the protest letter in his capacity as CEO of the joint venture; his 

transmittal email identified him as the CEO of A1 Procurement, LLC.
Page 3 B-404618.2 

We agree with the agency that the appropriate rate -- for calculating the amount for 

which the protester should be reimbursed for the time incurred by Mr. Storms in 

pursuing the protest -- should be based upon Mr. Storms’ salary as an employee of 

the protester. In this regard, although we accept that Mr. Storms is also an 

attorney, this does not establish that the time incurred by Mr. Storms in pursuing the 

protest should be reimbursed at a billing rate for outside legal counsel, which 

obviously includes profit. Rather, the record, including the “retainer agreement” 

signed by Mr. Storms both as CEO of the protester and as legal counsel, 

demonstrates that the relationship between the protester and Mr. Storms was not 

one where outside legal counsel is representing a client as an agent. 

Representation by outside legal counsel would reflect an arms-length, agency 

relationship that is not reflected in the agreement presented here, where 

Mr. Storms, as CEO of the protester, allegedly engaged himself as outside legal 

counsel. Our conclusions in this regard are consistent with that of the United States 

Supreme Court and other federal courts that have held that a pro se litigant that is 

also an attorney may not be awarded attorney’s fees under other fee-shifting 

statutes. See Kay v. Ehrler, 499 U.S. 432 (1991) (The Civil Rights Attorney’s Fees 

Awards Act of 1976); Kooritzky v. Herman, 178 F.3d 1315 (D.C. Cir. 1999) (Equal 

Access to Justice Act).

In short, the amount for which the protester should be reimbursed for the time 

incurred by Mr. Storms in pursuing the protest should be calculated based upon his 

actual rate of compensation as the protester’s CEO, and not as outside legal 

counsel.

Lynn H. Gibson

General Counsel