GRANTED IN PART: April 18, 1995 GSBCA 10601-C(10381-P) STERLING FEDERAL SYSTEMS, INC., Protester, v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Respondent. Alan I. Saltman and Kevin R. Garden of Saltman & Stevens, P.C., Washington, DC, counsel for Protester. David P. Forbes and Sumara M. Thompson-King, Office of General Counsel, National Aeronautics and Space Administration, Washington, DC; and Rosamond M. French, NASA-Ames Research Center, Moffett Field, CA, counsel for Respondent. Before Board Judges DANIELS (Chairman), PARKER, and DeGRAFF. DANIELS, Board Judge. On October 20, 1994, the Board granted to Sterling Federal Systems, Inc. (Sterling), some of its costs of filing and pursuing a successful protest against the award of a contract by the National Aeronautics and Space Administration (NASA). At that time, we considered only the attorney fees and disbursements (other than consultant fees and expenses) incurred by the protester. Sterling Federal Systems, Inc. v. National Aeronautics & Space Administration, GSBCA 10601-C(10381-P), 94-3 BCA 27,267, 1994 BPD 233. In this opinion, we complete our review of Sterling's cost application by addressing the request for reimbursement of the other two elements of Sterling's claims -- consultant fees and expenses and employee salaries and expenses. In addition, we consider Sterling's request for reimbursement of attorney fees incurred during 1994 in pursuit of the application. Discussion In our interlocutory decision, we concluded that Sterling, as the prevailing party in the underlying protest, Sterling Federal Systems, Inc., GSBCA 10381-P, 90-2 BCA 22,802, 1990 BPD 70, was an appropriate interested party to recover its costs under the provisions of the Brooks Automatic Data Processing Act, 40 U.S.C. 759(f)(5)(C) (1988). Sterling demonstrated, by a preponderance of the evidence, that NASA violated requirements of statute and regulation by awarding the contract to a firm which misrepresented the salaries of certain of its key personnel, thereby distorting the competition, and which consequently should have been disqualified from the procurement. In another recent decision regarding an application for costs filed by Sterling subsequent to its having succeeded in a related protest, we held that under the Brooks Act, a prevailing party may be awarded consultant fees and expenses, and employee salaries and expenses, where those costs were reasonably and necessarily incurred in pursuit of the protest. Sterling Federal Systems, Inc. v. National Aeronautics & Space Administration, GSBCA 10000-C-REM (9835-P), 1995 BPD 65 (Mar. 10, 1995). In the instant case, Sterling asks that we grant it reimbursement of $233,950.76 in consultant fees and expenses, and $187,572.40 (reduced from the previously-claimed amount of $188,319.56) in employee salaries and expenses. In addition, on November 16, 1994, Sterling requested award of an additional $16,068.66 to cover attorney fees and disbursements incurred from March 11 to November 16, 1994. (The previous award covered attorney fees and disbursements incurred through March 10, 1994.) As we explained in the interlocutory decision, the underlying protest was an extraordinarily unusual case, unique in the annals of Board protests: The hearing in this case lasted twenty-three days. For a good portion of this time, Sterling was required to defend itself against unproven allegations by NASA and CSC [Computer Sciences Corporation, the awardee] that Sterling was the offeror which was guilty of misrepresentations to the Government during the procurement in question. Because of the length of the proceedings, Sterling's costs were high. Sterling Federal v. NASA, 94-3 BCA at 135,866, 1994 BPD 233, at 1-2. NASA initially objected as a matter of law to the Board's reimbursing Sterling for any of the consultant fees and expenses, and employee salaries and expenses, it incurred in pursuing the protest. Motions to Dismiss (Feb. 10, 1992). NASA reserved the right to object to any particular costs claimed, in the event that entitlement to these classes of costs was found. Letter to Board (Feb. 10, 1992). Subsequently, the Board convened a hearing at which witnesses presented by Sterling testified to the nature and extent of the work the firm's consultant and employees performed on the case. Sterling's counsel stated that the consultant was invaluable in analyzing proposals (especially CSC's, to which Sterling employees had no access) and performing cost analyses, and in helping the lawyers understand the hearing testimony of NASA witnesses on these matters. Transcript at 82-83 (Hearing of Mar. 2, 1992). Sterling's president stated that the employees devoted great effort to establishing that NASA's allegations about the company were false. Id. at 117-20, 135-37, 141-50. NASA did not contest these statements. Letter to Board (Mar. 20, 1992). Instead, it contended that because the employees spent very little time on the matter of CSC's misrepresentations, no more than $16,000 of the costs attributable to their work should be reimbursed. Respondent's Motions in Opposition to Protester's Motion for Award of Protest Costs (Apr. 27, 1992) at 7. After the Court of Appeals for the Federal Circuit held that the Brooks Act may be read to permit the Board to award consultant fees and expenses, and employee salaries and expenses, Sterling Federal Systems, Inc. v. Goldin, 16 F.3d 1177 (Fed. Cir. 1994), NASA changed its position. It now has no objection to our awarding to Sterling all of the claimed employee costs. In addition, NASA has no objection to our awarding all of the attorney costs claimed for the period from March to November, 1994. Letters to Board (Sept. 23 and Dec. 2, 1994). NASA has not made clear whether it objects to reimbursement of any particular claimed consultant costs. The consultant fees and expenses claimed are all documented, and in light of the complexity and length of the proceedings, all but two components of them appear to have been reasonable and necessary. The two components for which we do not award reimbursement are an $11,000 payment for extending the consultant's agreement not to compete with CSC and a $75,000 bonus paid consequent to Sterling's victory in the protest. See Consultant's Invoice at 4 (Attachment to Motion for Award of Protest Costs and Attorneys' Fees (Apr. 19, 1990)); Consultant's Invoice in Exhibit 2 to Protester's Amendment to its Motion for Award of Protest Costs and Attorneys' Fees (Nov. 21, 1990); Transcript at 99. As we held in our ruling on Sterling's cost application in the related protest, the consultant's daily fee ($1,500) represents the established value of his services. The additional payment in exchange for the consultant's agreement not to compete with CSC is a cost which Sterling may rationally have incurred to have a particular individual assist in the case, but it was agreed to after the rate was established and was not reasonable or necessary to secure a qualified consultant's services. Sterling Federal v. NASA, 1995 BPD 65, at 13-14. We view the bonus in the same light. The Brooks Act allows reimbursement of costs necessarily incurred to pursue a protest, not of a company's expression of gratitude for the outcome. Of the $233,950.76 claimed as consultant fees and expenses, we allow reimbursement of $147,950.76. Because of the unusual way in which the case developed, Sterling's decision to devote a considerable amount of employee time to the protest was reasonable. Sterling has documented nearly all of the burdened salary cost it claims -- $105,294.84. Although the Board made repeated requests that Sterling provide complete documentation of its claim, the firm never supplied any proof that it actually spent $69,683.54 in travel expenses or $9,231.78 for miscellaneous (unidentified) items, as it alleges. A certification as to those expenditures by the company's controller, Exhibit 3 to Protester's Amendment to its Motion for Award of Protest Costs and Attorneys' Fees (Nov. 21, 1990), cannot take the place of business records. Sterling Federal v. NASA, 1995 BPD 65, at 15. We consider the total amount documented to have been appropriately spent. We thus award $105,294.84 of the $187,572.40 requested in employee salaries and expenses. Sterling's payment of $16,068.66 to cover attorney fees and disbursements incurred during 1994 in pursuit of the cost application was reasonable, given the course of the application. We award reimbursement of this amount as well. Decision We GRANT IN PART Sterling's motion and award to this firm the sum of $269,314.26, which reflects the consultant fees and expenses, employee salaries and expenses, and last portions of attorney fees and disbursements incurred in filing and pursuing the protest. This sum shall be paid, without interest, from the permanent indefinite judgment fund, 31 U.S.C. 1304 (1988). 40 U.S.C. 759(f)(5)(C) (1988). _________________________ STEPHEN M. DANIELS Board Judge I concur: _________________________ ROBERT W. PARKER Board Judge DeGRAFF, Board Judge, concurring in part and dissenting in part. I concur in part. I would not award Sterling its employee costs for the reasons expressed in my opinion in Sterling Federal Systems, Inc. v. National Aeronautics & Space Administration, GSBCA 10000-C-REM(9835-P), 1995 BPD 65 (Mar. 10, 1995). _________________________ MARTHA H. DeGRAFF Board Judge