MODIFIED ON RECONSIDERATION: July 5, 1995 GSBCA 10601-C-R(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 April 18, 1995, the Board issued an opinion dealing with an application by Sterling Federal Systems, Inc. (Sterling) for reimbursement of two types of costs -- consultant fees and expenses and employee salaries and expenses -- allegedly incurred in filing and pursuing a successful protest against the award of a contract by the National Aeronautics and Space Administration (NASA). Sterling Federal Systems, Inc. v. National Aeronautics & Space Administration, GSBCA 10601-C (10381-P), 1995 BPD 89 (Apr. 18, 1995). We concluded that "[b]ecause 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," and we awarded $105,294.84 in salary costs. With regard to the out-of- pocket employee expenses claimed, however, we stated, "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." 1995 BPD 89, at 4. We consequently denied any reimbursement for these costs. On April 27, Sterling moved for reconsideration of the portion of the opinion dealing with employee expenses. Sterling pointed out that it had indeed provided the documentation in question -- in 1991. It provided a duplicate copy and asked that the Board determine the appropriate amount of reimbursement pursuant to 40 U.S.C. 759(f)(5)(C) (1988). In response, NASA agreed that the documentation had been submitted earlier and said that it had no objection to our reconsidering the April 18 decision as to litigation-related expenses incurred by Sterling employees. NASA suggested, however, that some of the telephone calls for which reimbursement was sought may have pertained to business operations, rather than pursuit of the protest; the agency asked the applicant to identify clearly which calls were for which purpose. Sterling stated that it has no documentation as to the purpose of the telephone calls. It also noted that NASA had never previously challenged this element of the application; to the contrary, the agency had said that it did not object to our including in a cost award the amount claimed for the calls. Sterling asserted that if questions had been raised soon after the application had been filed, the firm could have made efforts to categorize the calls; at this late date, however, the firm cannot determine the specific purpose of any conversation. Sterling's best estimate is that "it is likely that a very high percentage of the calls, if not all, were related to Sterling's pursuit of the protest." Protester's Reply to Respondent's Response to Protester's Motion for Reconsideration at 3. At the same time that it responded to NASA's challenge to the telephone expenses claimed, Sterling amended its application to seek reimbursement of additional attorney fees and expenses. Sterling's lawyers devoted a few hours to discussing with the company whether to file the motion for reconsideration, and then filing the motion and discussing it with agency counsel and the Board. The lawyers spent a roughly equivalent amount of time reviewing NASA's response and, in conjunction with Sterling officials, replying to it. In all, they billed Sterling $3,263.50 for attorney fees and $71.44 for postage and photocopying of documents -- a total of $3,334.94. NASA informed us by telephone that it does not object to an award of these costs. The Board confesses error as to its recordkeeping in this case. The judge who heard the underlying protest, and who presided over this cost application for more than four years, has retired. When the case files were transferred to the panel which is deciding the application, the documentation of Sterling employee expenses submitted in 1991 was not included. Thus we initially concluded that it did not exist. Now that we have learned that the documentation does exist, and should have been in our possession for four years, we grant the motion for reconsideration and proceed to evaluate the appropriateness of awarding reimbursement of these costs. The documentation is in a format which is not entirely clear. Sterling has provided, for each of the seven employees who incurred expenses while they worked on the protest, for each week of involvement, copies of three items -- two summaries of expenses and a compilation of receipts. Sterling has not explained how either summary was derived, or the relationship between the totals and the receipts. As best as we can make out, one set of summaries appears to be keyed to actual expenses, most of which are substantiated by the receipts. It also includes a few entries whose meaning is not clear to us; they include "comp access," "bus conference," "disallowable," "emp welfare," "miscellaneous," and "other," and their total is shown as "other" in the table below. The second set of summaries does not appear to be keyed to the receipts; many of the figures for these summaries are smaller than the ones in the first group. The amounts are as follows: Category First summaries Second summaries Airfare $36,970.49 $28,398.00 Lodging 40,726.00 16,345.74 Meals 2,898.83 6,533.00 Local transportation 3,522.78 3,982.47 Telephone calls 1,804.35 871.77 Laundry 866.46 79.50 Other 4,856.38 346.27 Total $91,645.29 $56,556.75 Plainly, neither set of summaries of expenses represents the amount Sterling claims, $78,915.32. The receipts make clear that some items included in the first summaries are excessive. For example, the company frequently paid for first-class airfare, and it paid as much as $390 per night per hotel room. Why the amounts for some categories are larger in the second summaries than the first is a mystery to us, except for meals, where the second summary totals appear to include a per diem amount of $34 per day. At a hearing, Sterling's president made these statements regarding the cost application: A. . . . If it isn't coach travel per diem rates, that is what should be applied and that would be corrected accordingly. . . . Q. Mr. Tolari, is it your testimony to the extent [the documentation] is not based on coach or per diem allowance, this document will be revised to reflect that? A. Absolutely. The intention is that anything that is normally acceptable, auditable under the Government, is what we would charge. Transcript at 131. With this statement as our only guide to the meaning of the documents, we consider that the second summaries represent Sterling's limitations of its claim to coach airfares, per diem allowances, and lodging and other items at rates which it believes are normally acceptable to the Government. We consider appropriate for reimbursement the following amounts: -- Airfare: $25,895 (travel at coach rates) -- Lodging: $15,384.33 (for each night, for each traveler, actual costs as supported by receipts, with a limitation at the amount which Sterling appears to consider appropriate (usually $93 per night, but sometimes $87) -- Meals: $5,797 ($34 per diem rate claimed for all travelers, multiplied by number of days of travel) -- Local transportation: $2,775.36 (all amounts which are supported by receipts, plus each taxi fare claimed as being $25 or less) -- Telephone calls: no recovery (an explanation of the purpose of each call should have been documented when the calls were made; an inability to show the purpose, notwithstanding the lateness of the request, is fatal to recovery) -- Laundry: no recovery (these expenses should be covered by the per diem allowance) -- Other: no recovery (the descriptions do not appear to relate to any activities in support of litigation, and in any event, no receipts were provided) The total amount allowed for expenses incurred by Sterling employees in pursuit of the protest is $49,851.69. Of the additional $3,334.94 claimed as attorney fees incurred and disbursements made in pursuit of the motion for reconsideration, $1,516 of the fees and $71.44 in disbursements pertained to the filing of the motion, and $1,747.50 of the fees pertained to the reply to NASA's response. We consider that only the first portion of the costs was reasonably and necessarily expended; the reply was not persuasive in establishing a basis for recovery of the challenged expenses. Decision We GRANT Sterling's motion for reconsideration. We have reviewed the documentation of expenses incurred by Sterling employees in pursuit of the protest, and the additional attorney fees and disbursements claimed. Consequent to this review, we increase our award to Sterling for consultant fees and expenses, employee salaries and expenses, and the last portions of attorney fees and disbursements incurred in filing and pursuing the protest, by $51,439.13. Our decision of April 18, 1995, is AMENDED to provide that the total amount awarded for these categories is $320,753.39, rather than $269,314.26. 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 We concur: _________________________ _________________________ ROBERT W. PARKER MARTHA H. DeGRAFF Board Judge Board Judge