__________________________________ GRANTED IN PART: March 4, 1993 __________________________________ GSBCA 10609-C(10389-P) SMS DATA PRODUCTS GROUP, INC., Intervenor, v. DEPARTMENT OF THE NAVY, Respondent. Mark J. Stechschulte of SMS Data Products Group, Inc., Reston, VA, counsel for Intervenor. Ellen D. Washington, Automatic Data Processing Selection Office, Washington, DC, counsel for Respondent. Before Board Judges LaBELLA, NEILL, and VERGILIO. VERGILIO, Board Judge. SMS Data Products Group, Inc., seeks to recover its costs of filing and pursuing, as an intervenor of right, the underlying protest of Government Technology Services, Inc., GSBCA 10389-P, 90-2 BCA 22,673, 1990 BPD 37, motion for reconsideration denied, 90-2 BCA 22,913, 1990 BPD 75 (GTSI). Through an initial motion filed on April 25, 1990, and subsequent amendments, SMS seeks to recover $100,830.21, an amount to which the respondent, the Department of the Navy, does not object. The Board concludes that SMS prevailed on significant issues in the underlying protest. The Board grants the motion for costs to the extent that the amount reflects taxable costs and attorney fees incurred in filing and pursuing the protest. That is, SMS recovers $93,351.39 through its motion. Findings of Fact 1. In the underlying post-award protest, as an intervenor of right, SMS joined, raised, and pursued protest issues which the Board sustained. The Board revised the agency's procurement authority to require it to terminate the protested contract and to make an award in accordance with statute and regulation. GTSI. 2. On April 25, 1990, SMS filed its request for recovery of protest and proposal preparation costs. That and subsequent submissions contain supporting affidavits and documentation for the requested costs. 3. The Board reopened the record in this cost case, on February 8, 1993, at the request of SMS, to permit SMS to supplement the evidentiary record in light of cost case opinions issued by this Board subsequent to the closing of the record, Sterling Federal Systems, Inc. v. National Aeronautics & Space Administration, GSBCA 10000-C(9835-P), 92-3 BCA 25,118, 1992 BPD 141, appeal docketed, No. 92-1552 (Fed. Cir. Sept. 21, 1992); Old Stone Leasing Corp. v. Department of the Army, GSBCA 10747-C (10613-P), 1992 BPD 331 (Nov. 4, 1992). 4. By a submission filed on February 10, 1993, SMS withdrew its request for proposal preparation expenses. Further, SMS provided additional information regarding the activities of in-house counsel for which recovery of costs for filing and pursuing the protest is sought. SMS also submitted information concerning the responsibilities and costs of various SMS employees involved in filing and pursuing the protest. 5. SMS seeks to recover $100,830.21. This amount consists of fees and disbursements of retained counsel, costs and disbursements associated directly with in-house counsel, daily deposition allowances, as well as costs and expenses of in-house personnel associated with filing and pursuing the protest. These latter non-attorney related, in-house costs and expenses total $7,336.42 (for in-house employee costs) and $142.42 (in-house non-attorney travel and telephone expenses which SMS does not contend are taxable costs). The record demonstrates that these $7,478.82 are not related to attorney fees or expenses, but rather simply reflect efforts of SMS employees in pursuing the protest. Although there exist minor variations (of a few cents) between and within submissions, the amount now requested is amply justified and supported in the record. 6. The agency does not object to any of the requested amounts of recovery. Joint Motion of SMS and the Navy (Sept. 3, 1991). Discussion At this time, after certain adjustments, SMS seeks to recover $100,830.21 as its costs of successfully filing and pursuing its intervention in the underlying protest. The Board granted the underlying protest, finding merits in some of the issues joined or raised by SMS. The Board concludes that, for purposes of recovering its requested costs, SMS is a prevailing party pursuant to statute, 40 U.S.C. 759(f)(5)(C) (1988) and Rule 35. The amounts requested are reasonable. However, the Board is limited to granting recovery of taxable costs and attorney fees. E.g., Sterling; Old Stone. The Board is not authorized to grant recovery for non-attorney related in- house efforts beyond taxable costs. Accordingly, the requested $7,478.82 is not recoverable under this motion. SMS objects to the retroactive application of Sterling, contending that such application is "inappropriate and a manifest injustice." SMS Brief at 2 (July 31, 1992). In Sterling the Board concluded that the Board's authority to require reimbursement of costs of filing and pursuing a protest is limited to taxable costs and reasonable attorney fees. Moreover, it concluded that the contrary prior practice at the Board was violative of statute--that is, the Board never had the authority to require reimbursement of particular costs and expenses. Given these conclusions, the Board is not in a position to grant recovery in a manner which the Board concludes is contrary to statute. In support of its "manifest injustice" contention, SMS notes that in Federal Computer Corp., GSBCA 10527-C(10389-P), 92-1 BCA 24,415, 1991 BPD 222, the Board granted a parallel motion for costs under the same protest in a decision issued prior to Sterling, thus rendered without regard to the Sterling limitations. However, SMS's cost motion must stand on its own. Because the Board in Sterling concluded that it does not now, and never did, have the authority to direct reimbursement of particular costs, the Board is not now in a position to award all of the costs SMS seeks. Decision The Board concludes that SMS is an appropriate interested party entitled to recover its costs, in the amount of $93,351.39, of filing and pursuing the protest as an intervenor. The Board denies recovery of $7,478.82 which represents neither attorney fees nor taxable costs. Accordingly, the Board GRANTS IN PART SMS's motion. The amount awarded is 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: _________________________ _________________________ VINCENT A. LaBELLA EDWIN B. NEILL Board Judge Board Judge