________________________________ GRANTED IN PART: November 3, 1992 ________________________________ GSBCA 10403-C(10302-P) INTERNATIONAL DATA PRODUCTS CORPORATION, Protester, v. DEPARTMENT OF JUSTICE, Respondent. Gerard F. Doyle and Steven W. DeGeorge of Doyle & Savit, Washington, DC, counsel for Protester. Katherine Schulze, Office of the General Counsel, Department of Justice, Immigration & Naturalization Service, Washington, DC, counsel for Respondent. Before Board Judges BORWICK, NEILL, and VERGILIO. VERGILIO, Board Judge. On November 21, 1989, protester, International Data Products Corporation, filed a motion to recover its costs of filing and pursuing two protests and of bid preparation. Protester seeks to recover both fees and expenses incurred through retained counsel, as well as internal expenses it associates with filing and pursuing the protests or bid preparation. The respondent, the Department of Justice, objects to reimbursement of amounts incurred relating to the second protest or to bid preparation. Specifically, the agency maintains that protester did not prevail in the second protest. It also contends that no inappropriate agency actions or inactions resulted in protester's expending resources on bid preparation. It would also reduce the requested costs attributable to preparing the cost motion by an amount proportionate to the disallowed costs. The Board concludes that protester is entitled to recover amounts relating to filing or pursuing the initial protest which are either taxable costs or attorney fees. Sterling Federal Systems, Inc. v. National Aeronautics & Space Administration, GSBCA 10000-C(9835-P), 1992 BPD 141 (May 22, 1992), appeal filed, No. 92-1552 (Fed. Cir. Sept. 21, 1992). Based upon Sterling, protester is not entitled to recover its other costs associated with the first protest. Protester did not prevail in its second protest; accordingly, it may not recover any costs associated therewith. Protester has not demonstrated entitlement to bid preparation costs--improper agency actions did not induce protester to expend costs of bid preparation. Protester is entitled to recover the full amount requested as costs incurred related to this cost motion; all such requested costs were reasonably and appropriately incurred. Findings of Fact 1. On August 28, 1989, protester filed a post-award protest with the Board, GSBCA 10241-P, alleging that the agency improperly made the award to a non-responsive bidder, and that protester was the proper awardee. Before the Board reached the merits of that and consolidated protests, the agency agreed to terminate for convenience the protested award and to continue the evaluation process. At the request of the parties, the Board dismissed the protest without prejudice, the dismissal to become one with prejudice "ten working days following the notification of the parties that either award of a contract under this acquisition has occurred or the solicitation has been canceled." Consys Corp, GSBCA 10229-P, et al., 1989 BPD 269 (Sept. 11, 1989). 2. Thereafter, the agency canceled the procurement. Protester filed a protest with the Board on September 25, 1989, GSBCA 10302-P(10241-P), which it characterized as reinstating the earlier protest. Protester alleged that the cancellation of the solicitation breached the prior settlement agreement and violated applicable law governing cancellation of sealed bid solicitations. 3. On October 13, 1989, protester and the agency filed a joint motion to dismiss the protest, GSBCA 10302-P(10241-P), with prejudice. The joint motion states in part: Protester and Respondent agree that Protester shall be deemed a prevailing party for purposes of submitting a claim pursuant to Board Rule 35 for the award of protest costs incurred in connection with GSBCA No. 10241-P, such claim to be submitted within 30 days of dismissal. The parties base this agreement upon Respondent's having terminated the protested award for nonresponsiveness. The Respondent's finding of nonresponsiveness was based in part upon the grounds raised in [protester]'s Protest Complaint, GSBCA No. 10241-P (i.e., that the Solicitation called for a bid of ProComm Plus and Sysorex supplied ProComm 2.3.2). International Data Products Group, Inc., GSBCA 10302-P(10241-P), 1989 BPD 327 (Oct. 23, 1989). In dismissing the protest with prejudice, the Board stated: Here, the parties have agreed to a dismissal of this protest with prejudice. Accordingly, the protest is so dismissed. The parties also state that they deem protester to have prevailed on the merits for purposes of recovery of costs pursuant to Rule 35. It is simply noted that such an agreement does not bind the Board; the Board is to make its own determination regarding the award of costs pursuant to statute, 40 U.S.C. 759(f)(5)(C) (Supp. V 1987). If a claim is filed pursuant to Rule 35, the Board will review the record of this protest, the parties' submissions under Rule 35, and the records in the related Compuline and Consys protests in deciding whether protester has prevailed. Id. (citations omitted). In those related protests, the Board concluded that the record failed to establish that the agency violated statute or regulation in canceling the procurement, and that the agency did not breach its settlement agreement which obligated it to proceed in accordance with the terms of the solicitation. Compuline International, Inc., GSBCA 10293-P (10237-P), et al., 90-1 BCA 22,494, 1989 BPD 369. 4. On November 21, 1989, protester filed a motion to recover its costs of filing and pursuing the protests and of bid preparation. 5. Protester incurred costs of retained counsel in the form of hourly charges and expenses. The hourly charges for four individuals segregated between the two protests and this cost matter are well documented and reasonable. The expenses incurred, which also are well documented and reasonable, are of the variety reimbursed by the Board as costs or legal expenses. Sterling. matter hourly amts "expenses" total GSBCA 10241-P $4,242.50 $43.37 $4,285.87 GSBCA 10302-P $2,132.50 $30.61 $2,163.11 cost motion $1,268.75 -- $1,268.75 TOTAL $7,643.75 $73.98 $7,717.73 Protester Motion, Exhibits A and B. Fewer than nine hours were expended in preparing and perfecting the cost motion. Given the motion and its attachments, it appears that there would not have been a substantial reduction in the legal time spent in preparation of a motion not requesting recovery of costs incurred relating to the second protest or bid preparation. 6. Protester also seeks to recover what it identifies as internal costs incurred in filing and pursuing the protest ($1,790) and in bid preparation ($47,163). Protester Motion, Exhibits C, D. Protester seeks to recover a total of $1,395 for hours expended by various employees. Protester also seeks to recover $32 as its costs of producing documents and materials for its counsel necessary to the pursuit of the initial protest. The amount as certified is $31.65. Protester also seeks reimbursement of $105 for shipping ($104.50 is certified) and of $52 for travel ($52.08 is certified), as well as $206 to cover general and administrative expenses (13% of the itemized amounts). These amounts are not attributable to any particular time period or activity. Id., Exhibit C. Discussion Statute permits a party to recover costs only if it has demonstrated an agency violation. Further, statute entrusts the Board with determining if a party is appropriate to recover amounts requested, and the reasonableness of the amount awarded. 40 U.S.C. 759(f)(5)(C) (1988); Sterling. The agency does not object to reimbursing protester its costs of filing and pursuing the initial protest; the agency maintains that it terminated the protested contract, having found the accepted bid to be non-responsive, in part, for reasons alleged by protester. However, the agency objects to paying protester its costs of filing and pursuing the subsequent protest and of bid preparation. In support of its position, the agency contends that there is no point upon which protester could be deemed to have prevailed in GSBCA 10302-P, and that protester achieved no benefit not already afforded by the prior events or agreement. NCR Comten, Inc., GSBCA 8299[-C](8091-P), 86-2 BCA 18,822, 1986 BPD 24; Computervision Corp., GSBCA 8838- C(8709-P), 87-2 BCA 19,918, 1987 BPD 70. The agency would also reduce the amount requested for preparation of the cost motion, because the agency contends protester is entitled to no costs associated with bid preparation. Costs associated with 10241-P In the first of the two protests underlying this cost motion, protester prevailed on a significant issue. The agency determined that it had violated statute and regulation in awarding the protested contract. Protester's bases of protest, in part, were valid; the agency agreed to take corrective action which terminated that contract. Protester could, once again, be considered for award. Findings 1, 3. The Board concludes that protester is an appropriate interested party to recover its reasonable costs incurred in filing and pursuing the first protest. All of the $4,285.87 protester incurred through retained counsel as hourly fees or expenses are reasonable and recoverable as taxable costs or attorney fees under Sterling. Further, the $31.65, Finding 6, is a "taxable cost" which would be recoverable under 28 U.S.C. 1920 (1988). Id. The Board awards these amounts. With the exception of $31.65, none of the requested internal costs of filing and pursuing the protest are recoverable before this Board. Sterling. Accordingly, the Board denies that requested recovery. Costs associated with 10302-P A necessary predicate to recovery of costs associated with pursuit of the second protest, is protester's ability to demonstrate an underlying agency violation. The Board concluded that none of the protested agency actions at issue in the second protest were improper. The Board found no impropriety when it dismissed protester's second protest and denied the parallel protests of other bidders. Given that the Board cannot find an underlying violation by the agency, protester is not entitled to recover any of its costs associated with filing and pursuing its second protest. 40 U.S.C. 759(f)(5)(A), (C). Costs of bid preparation Protester contends that the agency "canceled the procurement rather than continue and make award to [it] as the next low responsive bidder," and that this agency action "results in [protester]'s bid preparation costs to have been incurred needlessly." Protest Motion at 5. Protester has not elaborated upon any nexus between the agency violations and its allegedly wasted costs. Protester has not demonstrated a basis to recover its costs of bid preparation. The record permits the Board to conclude that the agency improperly awarded the contract; however, it does not permit the Board to conclude that the cancellation of the solicitation was improper, Compuline. Findings 1, 3-4. Protester has not demonstrated that any agency improprieties induced protester to unnecessarily expend efforts in bid preparation. The ultimate cancellation of the solicitation may have occurred absent any earlier agency violations, and reflect a possibility in any agency procurement. Thus, the Board denies the request for recovery of costs of bid preparation. Costs incurred with the cost motion Protester seeks to recover legal fees incurred in preparation of the cost motion. Finding 5. The agency, contending that protester is not entitled to costs incurred in filing and pursuing the second protest and in bid preparation, requests that the amount be reduced by two-thirds. A review of the cost motion suggests that protester is entitled to the full amount requested for its preparation. No substantial reduction in the time spent in its preparation would have occurred had the unsuccessful grounds for recovery been eliminated. Finding 5. The record does not show separately billed legal time expended in preparing the documentation to support the motion. Nor are there separate charges associated with the preparation of any specific element of the motion. The Board deems protester to be entitled to $1,268.75, the entire amount requested for legal costs incurred in preparation of the cost motion. Decision The Board GRANTS IN PART protester's motion, and deems protester to be entitled to $5,586.27 (= $4,285.87 + $1,268.75 + $31.65), to be paid in accordance with statute, 31 U.S.C. 1304 (1988). 40 U.S.C. 759(f)(5)(C) (1988). _________________________ JOSEPH A. VERGILIO Board Judge We concur: _________________________ _________________________ EDWIN B. NEILL ANTHONY S. BORWICK Board Judge Board Judge