_____________________________ GRANTED IN PART: May 23, 1994 _____________________________ GSBCA 11054-C(10894-P) ROCKY MOUNTAIN TRADING COMPANY-- SYSTEMS DIVISION, Protester, v. DEPARTMENT OF THE INTERIOR, Respondent. Leslie H. Wiesenfelder of Dow, Lohnes & Albertson, Washington, DC, counsel for Protester. Alton E. Woods, Office of the Solicitor, Department of the Interior, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), BORWICK, and VERGILIO. VERGILIO, Board Judge. On January 14, 1991, Rocky Mountain Trading Company--Systems Division filed its initial request to recover its costs of filing and pursuing the underlying protest. In its twice-amended request, the protester seeks to recover $15,546.98. This figure includes amounts for retained counsel (hourly efforts and disbursements) and in-house costs (hourly non-attorney efforts and disbursements). The respondent, the Department of the Interior, United States Geological Survey, opposes the request. It maintains that the protester is not an appropriate party entitled to any of the requested costs. Additionally, it specifically objects to recovery of the costs attributable to in-house efforts as unsupported and unreasonable. The Board concludes that the protester is an appropriate interested party which significantly prevailed in the underlying protest. The requested recovery for costs of retained counsel and in-house disbursements are reasonable and justified; the requested recovery for costs of in-house efforts are not. Accordingly, the Board deems the protester entitled to recover $11,468.69 of the requested amount. Findings of Fact 1. By decision dated December 4, 1990, the Board granted the protest underlying this request for costs of filing and pursuing the protest. The Board determined that the contracting officer had misevaluated offers in the application of a Buy American Act differential; a proper evaluation resulted in the protester being the lowest-priced offeror. Rocky Mountain Trading Co., GSBCA 10894-P, 91-1 BCA 23,619, 1990 BPD 430, motion for reconsideration denied, 91-2 BCA 23,679, 1991 BPD 1. 2. On January 14, 1991, the protester filed a motion to recover its costs of filing and pursuing the protest. Through the twice-amended request, the protester seeks $15,546.98. The protester seeks to recover its costs for retained counsel ($10,810 for hourly fees and $593.72 for disbursements) and for its in-house (non-attorney) efforts ($4,078.29 for hourly fees and $64.97 for disbursements). Motion for Award of Costs (Jan. 14, 1991); Supplement (Feb. 22, 1991); Second Supplement (Mar. 10, 1991). 3. The attorney fees are calculated on an hourly basis at hourly rates, with documentation supporting the time expended and amount requested. Motion, Exhibits 1, 3; Supplement, Exhibits 1, 3; Second Supplement, Exhibits 1, 2. The disbursements are itemized in supporting documentation. Each item (e.g., courier services, photocopying, telecopier use, postage, and telephone) is of a variety previously reimbursed by this Board. Aspect Telecommunications v. Department of the Treasury, GSBCA 11399-C (11250-P), 93-1 BCA 25,423, 1992 BPD 245; NCR Comten, Inc., GSBCA 8229[-C](8091-P), 86-2 BCA 18,822, 1986 BPD 24. The Board finds the requested amounts to be reasonable and related to reimbursable matters. 4. The protester seeks to recover for in-house, non- attorney efforts of three individuals: its president (29.2 hours), its bid coordinator who supplied a one page affidavit (2 hours) and did "paper filing" on one day (2 hours), and another employee whose efforts on January 7, 1991 (1 hour) are described as "cost data." Motion, Exhibit 4; Protester's Reply (Mar. 18, 1991), Attachment. The protester states that it is a sole proprietorship owned by its president. It calculates an hourly rate for the president utilizing its federal tax returns (Schedule C) from calendar year 1988. It determines the hourly rate by dividing the net income for the company by 1,960 hours. Case law involving this protester establishes the unacceptability of the protester's approach which fails to distinguish between "return to labor" and "return to income." Rocky Mountain Trading Co., GSBCA 10047-C(10027-P), 91-2 BCA 23,796, 1991 BPD 40, motion for reconsideration denied, 91-2 BCA 23,885, 1991 BPD 78. The record justifies neither the methodology nor the use of 1988 data for efforts expended in 1990 and 1991 as reliable indicators of costs associated with the time of the protester's president. The record contains no basis for calculating the actual cost to the protester for the efforts of its president. 5. The record does not justify the reasonableness of the recovery of the requested two hours of effort for preparation of the affidavit of the bid coordinator. Rocky Mountain Trading Co., GSBCA 10894-P, 91-1 BCA 23,619, 1990 BPD 430 (Finding 9). The affidavit was prepared in support of a distinct basis of protest which the Board denied. Similarly, the record does not justify the reasonableness of the recovery of the requested two hours of effort for "paper filing" by the individual. Given the failures of proof regarding the efforts of the president and bid coordinator, the record does not justify the reasonableness of the recovery of the requested one hour of effort expended by the remaining employee in developing cost data. 6. The protester seeks to recover $64.97 as its direct expenses incurred "in preparing and pursuing the protest, including reproduction, travel, courier charges, notarization, fax, and postage." Motion, Exhibits 4, 5. The Board finds the requested amount to be reasonable and related to reimbursable matters. Discussion 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 party appropriate. 40 U.S.C. 759(f)(5)(C) (1988); Sterling Federal Systems, Inc. v. Goldin, 16 F.3d 1177, 1187 (Fed. Cir. 1994). In opposing the protester's request, the agency maintains that, even without the protest, the contracting officer would have terminated for default the underlying contract if the awardee delivered goods that did not conform to the Buy American Act certification. "Moreover, it was not the Government that violated statute, regulation, or delegation of authority, but rather, the intervenor. The Board did imply otherwise: 'The reasonable reliance or not of the contracting officer on the certification does not affect the correctness or incorrectness of the evaluation.'" Agency Response at 5-6 (citation omitted). The protester significantly prevailed in its underlying protest. The agency had made an award contrary to the requirements of statute and regulation. The protester utilized the protest process to bring to light the violation; the Board revised the agency's procurement authority. The protester was placed again in a position to obtain the award under the protested procurement. The view of the agency minimalizes the protest process. The protester raised and pursued a protest issue as a contract formation matter. It is irrelevant to the protest process that, in the course of contract administration, the agency may take corrective action. If, as the agency maintains, the contracting officer were to terminate for default the protested contract, the protester would not be in a similar position to obtain the award under the solicitation. Moreover, despite the record developed, the agency failed to take or propose any corrective action on its own. It was the pursuit of the matter by the protester and the Board imposed relief that caused the altered agency conduct. Thus, the protester is an appropriate party to recover its reasonable and reimbursable costs of filing and pursuing the protest. The requested costs for retained counsel (hourly fees and disbursements) and for in-house disbursements are reasonable and recoverable. Findings 3, 6. The Board need not here resolve the broad question of the reimbursability, or not, of costs of in-house efforts expended in filing and pursuing a protest. See Sterling, 16 F.3d at 1188-89. The Board may assume, without deciding, that in-house costs are reimbursable. The record supports no recovery for the protester because the costs and efforts are not here reasonable or justified. Findings 4, 5. It is not reasonable to reimburse this protester for the efforts of its bid coordinator and the other employee. Lacking a basis in the record to formulate recoverable costs for the president, the Board denies the request for costs associated with his efforts. Rocky Mountain Trading Co., GSBCA 8943-C (8845-P), 89-3 BCA 22,110, at 111,214, 1989 BPD 219, at 4 ("Without a basis to determine the reasonableness of the hourly rate claimed by the president, we deny recovery with respect to all amounts for his efforts."). Decision The Board GRANTS IN PART the protester's motion for recovery of its costs of filing and pursuing the protest. The awarded amount, $11,468.69, is to be paid in accordance with statute. 40 U.S.C. 759(f)(5)(C) (1988); 31 U.S.C. 1304 (1988). The Board does not award $4,078.29, the remainder of the protester- requested amount. _________________________ JOSEPH A. VERGILIO Board Judge We concur: _________________________ _________________________ STEPHEN M. DANIELS ANTHONY S. BORWICK Board Judge Board Judge