_______________________________ GRANTED IN PART: March 14, 1994 _______________________________ GSBCA 11743-C(11521-P/11549-P/11567-P) PSI INTERNATIONAL, INC., Protester, v. DEPARTMENT OF ENERGY, Respondent. Ronald K. Henry, Stephen L. Teichler, John B. Veach, III, and John B. McDaniel of Baker & Botts, Washington, DC, counsel for Protester. Denise M. O'Brien, Julia L. White, Samuel Teitelman, David R. Dickey, and Elizabeth J. Arnold, Federal Energy Regulatory Commission, Washington, DC, counsel for Respondent. Before Board Judges NEILL, HYATT, and VERGILIO. VERGILIO, Board Judge. On February 27, 1992, PSI International, Inc. filed a motion requesting the award of its costs incurred in proposal preparation and in filing and pursuing three protests, GSBCA 11521-P, 11549-P, and 11567-P. As supplemented, the protester seeks to recover $286,019.74, as its costs of filing and pursuing the protests, and $168,760.51, as its costs of proposal preparation. The agency objects to reimbursing the protester for any of the requested proposal preparation costs, claiming that the protester has failed to demonstrate that agency improprieties caused it to waste effort--the protester unsuccessfully competed in the agency's resolicitation to satisfy the underlying requirements. Further, the agency requests that the Board deny those requested costs associated with protester's unsuccessful protest, GSBCA 11567-P, and its unsuccessful motion for reconsideration of that decision. Moreover, the agency seeks to reduce other requested costs as excessive, duplicative, or inaccurate. The Board denies the requested costs of proposal preparation. The protester has failed to factually demonstrate that it wasted efforts, in whole or in part, because of the agency improprieties. The Board awards $255,863.29--a reduced amount of the requested costs of filing and pursuing the two protests. The reduction reflects attorney efforts (hours and disbursements) associated solely with the denied protest, the related motion for reconsideration, and the unsubstantiated request for proposal preparation costs, as well as other efforts and expenses which are not related to filing and pursuing the protests or are not sufficiently documented to demonstrate the connection to the protests. Findings of Fact 1. By opinion dated January 31, 1992, the Board granted two (GSBCA 11521-P, 11549-P) and denied one (GSBCA 11567-P) of three consolidated protests; phase-in of the protested contract having been completed, the Board revised the procurement authority of the agency to prohibit it from exercising any option to extend the protested contract beyond the base year of performance. PSI International, Inc. v. Department of Energy, GSBCA 11521-P, et al., 92-2 BCA 24,775, 1992 BPD 35. In granting the two protests, the Board determined that the agency had interpreted and applied solicitation provisions in an unreasonable and inconsistent manner when it awarded a contract and permitted a wholesale substitution of core personnel, looking only for compliance with minimum requirements. The Board concluded that one issue of protest (alleging that the agency failed to conduct meaningful discussions with the protester) was untimely. Also, the Board denied bases of protest alleging that the agency's technical evaluation of protester's proposal was defective. The denied protest contended that the awardee's resumed individuals were unacceptable. 2. On February 10, the agency filed a motion for a stay of and a request for reconsideration and relief from the judgment entered in the two granted protests. The protester opposed the actions. The Board denied the stay and request. PSI International, Inc. v. Department of Energy, GSBCA 11521-P-R, et al., 92-2 BCA 24,941, 1992 BPD 99. The protester filed a motion for "reconsideration of the Board's failure to grant relief" in GSBCA 11567-P. The Board denied the motion. Id. 3. Through its initial cost motion, filed February 27, 1992, the protester seeks $254,499.93 which it characterizes as attorney fees (totalling $228,106.00) and disbursements (totalling $26,393.93) incurred in filing and pursuing the three protests (GSBCA 11521-P, 11549-P, 11567-P). Motion (Feb. 27, 1992) at 6, Exhibit A at 1. In an amendment to this motion, the protester recognizes that a portion of the requested costs (for certain hours and a transcript) were not related to filing and pursuing the protests. The protester deletes $1,273.05 from its claim ($522.00 in hourly fees; $751.05 in disbursements). However, in all supplements to its motion, the protester seeks the original amount of its claim, $254,499.93, as well as specific additional amounts as supplemented. Protester's Supplemental Motion (Apr. 8, 1992) at 3; Protester's Second Supplemental Motion (July 15, 1992) at 2; Protester's Third Supplemental Motion (Sept. 2, 1992) at 2. 4. Through its initial cost motion, the protester also seeks to recover $168,760.51 in proposal preparation costs. An exhibit to the motion contains a "certificate of accuracy" from the protester's Vice President of Finance, stating in full: "This Exhibit contains an accurate itemization of the bid and proposal preparation costs expended by PSI International, Inc. in preparing, submitting and supporting its response to Department of Energy, Federal Regulatory Commission Solicitation No. DE- RF39-90RC00019." Motion (Feb. 27, 1992), Exhibit B. No factual statement from this individual or any other suggests that any or all of the requested costs were wasted because of agency improprieties. 5. In its first supplement, filed on April 8, 1992, the protester seeks an additional $23,092.46--$21,700.50 in attorney fees and $1,391.96 in disbursements. 6. On May 26, 1992, the agency filed an opposition to the initial motion and supplement. Specifically, the agency objected to reimbursement of proposal preparation costs--in the entirety, and, alternatively, in part--and of various of the requested costs of filing and pursuing the protests. 7. On June 5, the protester filed a response to the agency opposition. Despite the agency contentions that the protester did not waste any or all of its requested proposal preparation costs, and agency assertions (supported in part by a declaration of a director of the procuring activity) that it issued a revised solicitation shortly after the protest matter was resolved and awarded a contract on July 17, 1992, the protester has failed to develop the factual record in response to demonstrate that any or all of its efforts were wasted. The response consists of legal discussion, but no factual information from the protester addressing the agency's objection to reimbursement of proposal preparation costs. 8. In its second supplement, filed on July 15, 1992, the protester seeks an additional $5,141.90 for responding to the agency's opposition to its motion--$4,933.50 in attorney fees and $208.40 in disbursements. 9. In its third supplement, filed on September 2, 1992, the protester seeks an additional $3,285.45 for responding to the agency's opposition to its motion--$3,148.50 in attorney fees and $136.95 in disbursements. 10. A review of the supporting documentation included with the initial motion and supplements reveals that certain hours were devoted solely to pursuing the unsuccessful protest and reconsideration thereof and to compiling and finalizing the portion of the cost motion relating to proposal preparation costs. The record suggests that other efforts and disbursements were not devoted to filing and pursuing the successful protests. In total, $30,156.45 of the requested costs were not related to the successful protests, derived from each motion as follows: motion atty fees disb'ts initial $20,167.50 $751.05 first 3,760.50 - second 4,686.00 207.20 third 483.00 101.20 TOTAL $29,097.00 $1,059.45 The record supports the remaining amounts billed as relating to the successful protests. The hours expended and the disbursements made were for matters this Board has found to be reimbursable. Aspect Telecommunications v. Department of 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. Discussion Before authorizing payment of costs of filing and pursuing a protest and of bid and proposal preparation, the Board must find an agency violation of statute or regulation, and determine that the costs are reasonable and appropriate. Sterling Federal Systems, Inc. v. Goldin, No. 92-1552 (Fed. Cir. Jan. 28, 1994); 40 U.S.C. 759(f)(5)(C) (1988). Proposal preparation costs The protester requests reimbursement of $168,760.51 in proposal preparation costs. The agency urges the Board to deny all requested proposal preparation costs, noting that the protester "has been able to continue its attempt to win the subject contract." Respondent's Response (May 22, 1992) at 4. In order to recover proposal preparation costs, the burden is on the protester to demonstrate that agency improprieties caused the protester to waste efforts. Communications Technology Applications, Inc., GSBCA 10172-C(9978-P), 90-3 BCA 23,261, 1990 BPD 207. The protester has failed to demonstrate how any or all of the efforts associated with these costs were wasted in light of the subsequently issued solicitation and contract award to satisfy the agency requirements underlying the protested contract. Accordingly, even if efforts were wasted, the protester has failed to demonstrate entitlement to any portion of the requested costs. Thus, the Board denies the requested reimbursement of proposal preparation costs. Attorney fees and disbursements As supplemented, the protester seeks through its cost motion to recover $286,019.74, as its costs of filing and pursuing the protests. The agency opposes the request for attorney fees for pursuing the unsuccessful claims (i.e., the third protest and the protester's motion for reconsideration), and objects to the reimbursement of other amounts as excessive, duplicative, or inaccurate. Respondent's Response (May 22, 1992) at 4. Of the requested costs, $30,256.45 were expended solely on filing and pursuing the unsuccessful protest or the recovery of proposal preparation costs. The remainder of the requested costs, $255,863.29, was expended in filing and pursuing the successful protests. The amount is reasonable and appropriate for reimbursement. The agency's assertions that the protester utilized too many attorneys or unnecessarily duplicated efforts are not borne out by the issues involved in the protest, the time frame within which discovery occurred, and the records submitted with the cost motion, as supplemented. Decision The Board GRANTS IN PART the protester's motion to recover costs. Specifically, the Board grants in the amount of $255,863.29 the request for costs of filing and pursuing the protests. The Board denies the request for the remainder of those costs and the costs of proposal preparation. The awarded amount is to be paid in accordance with statute. 40 U.S.C. 759(f)(5)(C) (1988); 31 U.S.C. 1304 (1988). _________________________ JOSEPH A. VERGILIO Board Judge We concur: _________________________ _________________________ EDWIN B. NEILL CATHERINE B. HYATT Board Judge Board Judge