_________________________________________________ MOTION FOR RECONSIDERATION DENIED: July 14, 1994 _________________________________________________ GSBCA 11552-C-R(11334-P) ICF SEVERN, INC., Protester, v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Respondent. Richard J. Conway, William M. Rosen, and John Linarelli, of Dickstein, Shapiro & Morin, Vienna, VA, counsel for Protester. David P. Forbes, Pierre M. Hartman, and Sumara Thompson- King, Office of the General Counsel, National Aeronautics and Space Administration, Washington, DC, counsel for Respondent. HENDLEY, Board Judge.[foot #] 1 ----------- FOOTNOTE BEGINS --------- [foot #] 1 Judges Hendley, Suchanek and LaBella comprised the original panel. However, Judge Suchanek has resigned from the Board and Judge LaBella is deceased, thus leaving Judge Hendley, the panel chairman, as the only remaining member of the original panel. Our appellate court has suggested that when a case is being reconsidered, a change in the decision cannot result from a change in the composition of the panel. Universal Restoration, Inc. v. United States, 798 F.2d 1400, 1406 ____________________________________________ n.9 (Fed. Cir. 1986). This Board has consistently followed this suggestion. Integrated Systems Analysts, Inc. v. Department of ____________________________________________________ the Navy, GSBCA 10750-P-R, 94-1 BCA 26,257, at 132,196 n.1, _________ 1993 BPD 319, at 1 n.1; Unit Data Service Corp. v. Department ______________________________________ of Veterans Affairs, GSBCA 10775-P-R, 93-3 BCA 25,964, at _____________________ 129,126 n.1, 1993 BPD 110, at 1 n.1. Consequently, were two other Board Judges to be added to the panel, it would be impermissible for them to change the holding in the decision. See Universal, 798 F.2d at 1406 n.9. Thus, assigning two ___ _________ additional panel members who could not change the holding in the decision would be pointless. Although new panel members have not been assigned to this (continued...) ----------- FOOTNOTE ENDS ----------- This matter is before us on the protester's, ICF Severn, Inc. (Severn), motion for reconsideration of our earlier decision denying its motion for an award by this Board of its protest costs in the amount of $265,000. The motion for reconsideration is grounded upon certain assumptions concerning our decision which are not altogether accurate. In order to more clearly understand our position, it is important to understand what our earlier decision did and did not do. First, we did not deny that the protester had a valid settlement claim for $265,000 against the respondent. While we did not directly rule on the issue, it is clear from our decision that we recognized that a prima facia settlement agreement had been entered into between the parties, e.g., "But the parties have struck an agreement." ICF Severn, Inc. v. National Aeronautics and Space Administration, 92-1 BCA 24,736, at 123,443, 1992 BPD 21, at 5. Second, what we held was that we would not authorize payment from the permanent indefinite judgment fund pursuant to 31 U.S.C. 1304 (1988). That holding does not preclude the protester being paid the $265,000 under the settlement. Our decision does deny the protester an award by this Board that can be paid from the permanent indefinite judgment fund. Nonetheless, the protester has a settlement agreement, albeit not one for which we will grant an award payable from the judgment fund. Is the protester without a means to enforce the settlement should the respondent fail to honor its agreement by making payment from its own appropriations? Presumably, the protester has a valid settlement agreement; however, it is not a contract over which this Board has jurisdiction to resolve disputes. If it were such an agreement, and we had jurisdiction under the Contract Disputes Act of 1978, any award we might grant could be paid from the permanent judgment fund but the fund would be required to be reimbursed by the respondent. The protester takes umbrage with portions of our decision which the protester deems unfairly characterize it as having engaged in "Fedmail," a term the protester considers pejorative. We consider Fedmail to be an agreement by a government agency to ----------- FOOTNOTE BEGINS --------- [foot #] 1 (...continued) case, consideration of this matter by the full Board, pursuant to Rule 30 of the Board's Rules of Procedure, would not be precluded under the Federal Circuit's decision in Universal, 798 F.2d at _________ 1400 n.9. Nevertheless, as Rule 30 notes, A request for full Board consideration is not favored. Ordinarily, full Board consideration will be ordered only when (1) it is necessary to secure or maintain uniformity of Board decisions, or (2) the matter to be referred is one of exceptional importance. ----------- FOOTNOTE ENDS ----------- pay a protester in consideration of the protester leaving the contest without having secured any relief. In the instant case, the protester's agreement to abandon out of further participation in the procurement was not something which it would seek to make a part of any settlement agreement. It agreed to withdraw from the procurement only because the respondent wanted it to do so. The protester had no need to so agree, it could easily drop further participation in the procurement without the agreement of the respondent. Hence, we concluded that the protester agreed to drop out of the procurement only because the respondent sought that end. Our decision clearly states that we were of the opinion that the protester had no motive to withdraw from further participation in the procurement, and every motive not to do so. We did not view the protester's case as one brought only to be bought off. As requested by the parties in their settlement agreement, we dismissed the protest with prejudice on September 25, 1991. We could do little else. See Federal Data Corp. v. SMS Data Products Group, 819 F.2d 277 (Fed. Cir. 1987). Under the terms of the settlement, the protester withdrew its proposal, which was tantamount to withdrawing from further participation in the procurement. Severn filed its motion for costs to which the respondent did not object. Discussion The issue before us is whether the protester is an appropriate party for recovery of protest costs from the permanent indefinite judgment fund. Under 40 U.S.C. 759(f)(5)(C) (1988), "if the Board determines that a challenged agency action violates a statute or regulation or the conditions of any delegation of procurement authority, the Board may . . . further declare an appropriate interested party to be entitled to the costs of -- (i) filing and pursuing the protest, including reasonable attorney's fees . . . ." It is the protester's statutory claim for protest costs which the parties attempted to decide by a settlement agreement. We did not find the protester to be an appropriate prevailing party to which we would grant costs under 40 U.S.C. 759(f)(5)(C) (1988), although the parties did. We concluded that although they had settled the case and agreed that the protester was deemed to be a prevailing party, the protester was in fact no such thing. We concluded that [w]hat we have before us is an agreement whereby the respondent, by agreeing to pay the protester's costs of pursuing the protest, has achieved the elimination of the protester from the procurement, with the consequent result that the proposed award to Federal Data Corporation using Mesa software may proceed without challenge. In actuality, by agreeing to pay $265,000, the respondent was completely successful in the protest, achieving essentially all that it sought, i.e., the award to Federal Data Corporation. By the terms of the agreement, the taxpayers got nothing but a bill. An improper award was not halted; the protester was not back "in the running" in any subsequent continuation of the procurement process. In short, no purpose envisioned by the protest statute has been advanced under any concept of a suit by a "private attorney general," i.e., no corrective or beneficial action has been or will be taken as a result of the protest. We do not view the undisturbed continuation of a contested procurement, without more, to be a beneficial action entitling the protester to an award of costs under the Brooks Act, or more precisely, a determination by the Board to permit the payment of "Fedmail" from the judgment fund. ICF Severn, 92-1 BCA at 123,442, 1992 BPD 21, at 4. In short, we concluded that Severn was not an appropriate prevailing party for the purpose of our awarding protest costs which are to be paid from the permanent indefinite judgment fund under 40 U.S.C. 759(f)(5)(C) (1988). We held that we would not direct that any future payment be made from that fund because the case and its settlement had achieved nothing beneficial to the procurement process. The agency itself may pay the protester directly without any involvement of this Board. An agency does not need either our approval or imprimatur to pay a protester its costs. In its cost motion, the protester did not request that payment be made pursuant to 31 U.S.C. 1304 (1988), i.e., from the permanent indefinite judgment fund, albeit the stipulation envisions that any payment itself shall eventually be made from that fund. Under the Brooks Act, 40 U.S.C. 759 (1988), payment of awards of the cost of filing and pursuing protests may be paid from the permanent indefinite judgment fund pursuant to 31 U.S.C. 1304 (1988), only upon a determination of entitlement by the Board. 40 U.S.C. 759(f)(5)(C) (1988). We decline to make such a determination. Since the parties do not need our approval or participation in order for the respondent to pay the protester the agreed upon $265,000 in costs, why is this case here? As was noted in Bedford Computer Corp., GSBCA 9837-C(9742-P), 89-2 BCA 21,827, at 109,815, 1989 BPD 121, at 10-11, (Hendley, J., dissenting), But why is this case here at all? We are well-aware that the parties do not need this Board to approve their settlement. The respondent need only pay the amount, $75,000, and the parties could file a joint motion to dismiss the case as settled. Such a motion is nothing more than a courtesy to us in informing us that the case is over and we can remove it from our docket. But the parties did not do that, and for good reason. We are certain that the respondent is here to have the settlement reduced to an award and, under a subsequent motion, have that award certified by this Board for payment from the permanent indefinite judgment fund, without the respondent reimbursing that fund. Thus, the only reason we have this case before us is that the agencies have discovered a pipeline to the mint, i.e., the settlement amount, $75,000 is ultimately to be paid from the permanent indefinite judgment fund and the respondent need not reimburse that fund from its appropriations. We view this as an intolerable situation. We perceive the circumstances as one in which the respondent is buying off the protester with the appropriated funds of another entity, the permanent indefinite judgment fund. We will not allow ourselves to be made a party to such a scheme. We note that the protester is not harmed by our decision in this case. The protester cannot be heard to complain if it receives payment from the respondent's account rather than from the permanent indefinite judgment fund. United States v. Julie Research Laboratories, Inc., 881 F.2d 1067 (Fed. Cir. 1989). The protester appears to have an agreement with NASA to end the litigation. We do not have jurisdiction, per se, over such an agreement. Others may. Decision The motion for reconsideration is DENIED. _____________________________ JAMES W. HENDLEY Board Judge