_______________________________________________ DISMISSED AS UNTIMELY IN PART; DENIED IN PART August 5, 1994 _______________________________________________ GSBCA 10537-C(10434-P) OPTICAL PUBLISHING, INC., Protester, v. LIBRARY OF CONGRESS, Respondent. Robert W. Tate, Seattle, WA, counsel for Protester. Robert A. Lincoln, Office of General Counsel, Library of Congress, Washington, DC, counsel for Respondent. Before Board Judges DEVINE, VERGILIO, and DeGRAFF. VERGILIO, Board Judge. On March 9, 1990, Optical Publishing, Inc., filed a motion to recover $37,545.79 as its costs of filing and pursuing two protests against the respondent, the Library of Congress. The request to recover costs associated with the first protest was untimely filed. The protester has failed to demonstrate that the agency violated any regulation or statute as alleged in the second protest. Accordingly, the Board denies the request for recovery. Findings of Fact 1. Optical filed an initial protest with this Board, concerning the FEDLINK program administered by the respondent agency. In particular, the protester characterized the protest as relating to contract awards by the Department of Defense under the program. The protester contended that awards under the program exceed the delegation of procurement authority and that actions circumvent statutory and regulatory requirements regarding notice and price competition. The parties settled the protest which the Board dismissed with prejudice; the Board did not reach the merits of the protest. The Board's dismissal states: "Additionally, the parties expressly acknowledge that protester's recovery of attorney fees remains an unresolved issue. Rule 35 instructs protester on how to seek an award of such fees." Optical Publishing, Inc., GSBCA 10333-P, 1989 BPD 350 (Nov. 1, 1989). 2. Rule 35(b) establishes the time frame for recovery of costs. The rule in effect stated: "Within 30 days after a decision sustaining a protest, an interested party may submit a motion, with supporting documentation and certification of accuracy, requesting the Board to issue an order requiring respondent to pay the costs described in paragraph (a) of this rule." The costs referenced in paragraph (a) are those described in statute, 40 U.S.C. 759(f)(5)(C) (1988). 3. No motion to recover costs incurred in filing and pursuing the protest, GSBCA 10333-P, was filed within the thirty- day period following the protester's receipt on November 1, 1989, of the order of dismissal. On December 11, 1989, the protester filed what it styles a "supplemental declaration in support of application for attorney's fees." In this submission, the protester states that pending before the Board is an application for attorney fees. No application was then pending. The protester notes that it "is seeking the return of Attorney's fees and costs which were incurred to prevent noncompetitive practices at the Library of Congress, and events have proven the validity of the original allegations set forth in [the] first protest." Accordingly, the protester contends that the Board should "award the fees and costs set forth in the original Protest, as the Protest was necessitated by the actions of the Library of Congress." Supplemental Declaration. However, no request for any particular amount, or any supporting documentation, or certification of accuracy, as required by Rule 35, had been filed. 4. On December 7, 1989, Optical filed a protest with the Board, GSBCA 10434-P, contending that the agency was violating statute and regulation and the terms and conditions of the settlement agreement reached between the parties in the earlier protest, GSBCA 10333-P, in continuing with certain procurement actions under the given program. The parties settled the matter; the Board did not reach the merits of the issues of the protest. The Board neither approved nor disapproved the terms of the settlement; an initial dismissal without prejudice became a dismissal with prejudice on March 1, 1990. Optical Publishing, Inc., GSBCA 10434-P, 1990 BPD 41 (Feb. 6, 1990). Under the settlement, the agency agreed to inform (by letter) users of the FEDLINK program of the vendors (including the protester) available through the program, and some of the parameters of purchasing (selecting a vendor) under the program. 5. On March 9, 1990, the protester filed an application to recover $37,545.79--its alleged attorney fees and expenses incurred in pursuing the two protests. In its motion, the protester says that the terms of the settlement agreements reached by the parties in the two underlying protests were intended to cure the multiple problems that had been created by the [agency] in order to simply allow [the protester] to effectively compete in this market place. The fact still remains, that as a result of having to initiate the protest, and by virtue of the fact that as of March, 1990 no order has been placed, it is apparent that the procedures and infrastructure of the [agency] were totally ineffective to establish a competitive market place for the services and supplies covered by this protest. The net result of the procedures which [the protester] negotiated with the [agency] is, in the judgement of [the protester], the most effective, within limited circumstances, sufficient to overturn multiple procurement decisions made by the executive branch concerning millions of dollars. Application at 5. Discussion Contending that the record fails to demonstrate that a challenged agency action violated statute, regulation, or the conditions of any delegation of procurement authority, the agency opposes the award of any of the requested costs of filing and pursuing the protests. Alternatively, the agency opposes the reasonableness of the hourly rate and a portion of the hours expended. Regarding the first protest, the agency states in its opposition that it "had already decided to award a contract to Optical at the time Optical filed its protest." The agreement simply provides assurances to the protester of what the agency was doing and would continue to do, and what the protester could do consistent with those actions. Agency Response (Apr. 6, 1990) at 4. As to the resolution of the second protest, the agency maintains that the purpose of the agreed-to letter was to ensure that all users properly considered the products and prices of the protester, as well as all other vendors, before making a selection. Id. at 5-6. The agency does not admit to having engaged in any improper action. Before authorizing payment of costs of filing and pursuing a protest, the Board must find an agency violation of statute or regulation, and determine that the costs are reasonable and the requesting party an appropriate one to be reimbursed. 40 U.S.C. 759(f)(5)(C) (1988); Sterling Federal Systems, Inc. v. Goldin, 16 F.3d 1177, 1187 (Fed. Cir. 1994). With respect to the costs allegedly incurred in filing and pursuing the initial protest, GSBCA 10333-P, the protester untimely pursued recovery before this Board. Subsequent to the dismissal of the underlying protest, no request for recovery was filed within the requisite thirty calendar days. Findings 2, 3. With respect to the costs allegedly incurred in filing and pursuing the second protest, GSBCA 10434-P, the protester has failed to demonstrate an agency violation. The agency maintains that it proceeded in accordance with statute and regulation prior to the protest being filed, and continued to do so thereafter. The agency has admitted to no violation. Further, the protester has pointed to nothing in the record demonstrating such a violation. In a cost proceeding, in order to recover under its motion, a party bears the burden of demonstrating its entitlement to recovery. The protester has not satisfied that burden. Given the record before the Board, it is not clear that the protester is an appropriate, prevailing party entitled to recover the requested costs. Decision The protester untimely filed its request to recover costs incurred in filing and pursuing the initial protest. The Board DISMISSES AS UNTIMELY FILED the request to recover costs associated with the initial protest. Regarding the second protest, the protester has failed to demonstrate a violation of statute or regulation in a challenged agency action. The Board DENIES the requested recovery associated with the second protest. _________________________ JOSEPH A. VERGILIO Board Judge We concur: __________________________ __________________________ DONALD W. DEVINE MARTHA H. DeGRAFF Board Judge Board Judge