GRANTED IN PART: January 14, 1993 GSBCA 11033-C(10879-P) ROCKY MOUNTAIN TRADING COMPANY, Protester, v. DEPARTMENT OF THE ARMY, Respondent. Jeff Stollman, President of Rocky Mountain Trading Company, Boulder, CO, appearing for Protester. Craig R. Schmauder and Brian "D" Henretty, Office of the Chief Counsel, U.S. Army Corps of Engineers, Washington, DC, counsel for Respondent. Before Board Judges LaBELLA, NEILL, and WILLIAMS. WILLIAMS, Board Judge. On December 27, 1990, protester, Rocky Mountain Trading Company (RMTC), filed a motion for award of costs incurred pursuing its protest concerning the rejection of its bid by the U.S. Army Corps of Engineers under solicitation number DACA31-90- B-0106 for automatic data processing equipment.[foot #] 1 As a result of the original protest, respondent reevaluated protester's bid, determined it to be responsive, terminated the contract for convenience, and awarded the contract to protester. On November 27, 1990, the Board issued an order dismissing the protest with prejudice. ----------- FOOTNOTE BEGINS --------- [foot #] 1 On April 12, 1991, protester filed a motion to amend its claim for cost reimbursement to include costs for filing its Supplemental Information in Support of Protester's Motion for Cost Reimbursement (Supplemental Information) with its accompanying cost methodology developed by an economic consultant. The Board accepted this amendment. ----------- FOOTNOTE ENDS ----------- Rocky Mountain Trading Company, GSBCA 10879-P, 1990 BPD 404 (Nov. 27, 1990). In its amended motion for costs, protester seeks reimbursement of protest costs in the amount of $2,857.23. Protester avers that $2,090.96 represents compensation for the time spent by the president of RMTC pursuing the protest and cost claim, $20.25 for work by other RMTC personnel, $720 in expert consultant fees (nine hours at $80 per hour), and $26.02 in out- of-pocket expenses for photocopying, telephone calls, and facsimile transmissions.[foot #] 2 With regard to the appropriate measure of remuneration of RMTC's president, protester's expert consultant, a professor in economics, opined that, "gross income minus all expenses is an appropriate measure . . . (when nominal salary is paid to him)." Protester's Supplemental Information, Letter from Protester's Expert to the Board dated April 11, 1991, at 1. Protester's expert concluded that, "an appropriate but very conservative figure" for protester's president's labor per hour is $76.31. Id. at 3. Discussion By statute, the Board is empowered to award protest costs, including reasonable attorney's fees, and bid or proposal costs to an appropriate interested party. 40 U.S.C. 759(f)(5)(C) (1988). In Sterling Federal Systems, Inc. v. National Aeronautics and Space Administration, GSBCA 10000-C(9835-P), 92-3 BCA 25,118, 1992 BPD 141, appeal docketed, No. 92-1552 (Fed. Cir. Sept. 28, 1992), a case which was considered by the full Board, a majority of Board members held that the United States Supreme Court's ruling in West Virginia University Hospitals, Inc. v. Casey, 111 S.Ct. 1138 (1991), precludes the Board from awarding expert consultant fees and in-house costs. We have applied the holding in Sterling retroactively, and Sterling governs this case. See Lockheed Missiles and Space Co., v. Department of the Treasury, GSBCA 11604-C(11362-P), 1992 BPD 276 (Sept. 30, 1992). In Sysorex Information Systems, Inc. v. Department of the Treasury, GSBCA 10781-C(10642-P)-REIN, 1992 BPD 235 (Sept. 8, 1992), at 4, the Board held that while 28 U.S.C. 1821(b) (Supp. ----------- FOOTNOTE BEGINS --------- [foot #] 2 Protester's claimed in-house labor costs are based on the following calculations: RMTC's president: 27.4 hours x $41.93/hour x $1.82/hour in overhead Employee #1: 1.5 hours x $6.00/hour x $1.82/hour in overhead Employee #2: .25 hours x $8.50/hour x $1.82/hour in overhead ----------- FOOTNOTE ENDS ----------- 1992) provides certain reimbursement and per diem allowances for witnesses, including expert witnesses, fees charged by expert consultants for non-testimonial services are not compensable under the Brooks Act. Accordingly, protester's claim for $720 for expert consultant fees is denied. Protester also seeks to recover $2,137.23 for in-house labor and out-of-pocket expenses expended pursuing its protest. Of those costs, $2,090.96 is attributed to time spent by the president of RMTC, $20.25 for work done by two other RMTC employees, and $26.02 for photocopying, telephone calls, and facsimile transmissions. In Sterling, protester sought recovery of in-house labor expenses, including "direct labor costs," "fringe cost of direct labor," "travel expenses of its employees," and "miscellaneous expenses," but the Board denied protester's request for in-house costs in its entirety. Id. at 9, 10. The majority stated: "Given the narrow holding of West Virginia, absent a straightforward legislative indication that expert fees and in-house costs may be recovered, we believe we are not authorized to make such an award." Id. at 11. Applying Sterling, we deny protester its in-house labor costs. However, we award protester's out-of-pocket expenses for photocopying, telephone calls, and facsimile transmissions incurred pursuing its protest in the amount of $26.02. 40 U.S.C. 759(f)(5)(c) (1988). Decision For the reasons stated above, we GRANT IN PART protester's motion for costs and award protester $26.02. ____________________________ MARY ELLEN COSTER WILLIAMS Board Judge We concur: ____________________________ ____________________________ VINCENT A. LaBELLA EDWIN B. NEILL Board Judge Board Judge