__________________________________ GRANTED: March 20, 1996 __________________________________ GSBCA 11799-C-REM(11635-P) GRUMMAN DATA SYSTEMS CORPORATION, Applicant, v. DEPARTMENT OF THE AIR FORCE, Respondent. Peter L. Winik, David R. Hazelton, and James H. Barker of Latham & Watkins, Washington, DC, counsel for Applicant. Clarence D. Long, III and Joseph M. Goldstein, Office of the General Counsel, Department of the Air Force, Washington, DC, counsel for Respondent. Before Board Judges NEILL, HYATT, and WILLIAMS. WILLIAMS, Board Judge. On April 16, 1992, Grumman Data Systems Corporation (Grumman) filed a motion for costs incurred in pursuing a protest challenging the Department of the Air Force's (Air Force's) award of a contract to Contel Federal Systems, Inc. (Contel) for a network for the Joint Chiefs of Staff, known as the Joint Staff Automation for the Nineties (JSAN). Grumman claimed the award was illegal on four grounds: (1) the Air Force failed to make any meaningful cost-benefit analysis in awarding to a higher priced offeror; (2) the Air Force relied on a scheme of undisclosed technical evaluation criteria; (3) Contel's proposal failed to comply with a mandatory requirement in the request for proposals; and (4) the Air Force failed to conduct adequate discussions. The Board granted the protest in part, "finding that the Air Force did not sufficiently analyze whether the increased cost of Contel's proposal was justified." Grumman Data Systems Corp. v. Department of the Air Force, GSBCA 11635-P, 92-2 BCA 24,999, at 124,592, 1992 BPD 100, at 2. On January 11, 1993, the Board granted the cost motion in part, denying Grumman reimbursement for expert consultant fees in the amount of $100,053 based on the Board's decision in Sterling Federal Systems, Inc. v. National Aeronautics and Space Administration, GSBCA 10000-C(9835-P), 92-3 BCA 25,118, 1992 BPD 141. Grumman Data Systems Corp. v. Department of the Air Force, GSBCA 11799-C(11635-P), 93-2 BCA 25,773, 1993 BPD 16. Sterling held that the recent precedent in West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83 (1991), precluded the Board from awarding protesters "costs incurred in retaining expert consultants." Grumman Data Systems Corp., 93-2 BCA at 128,244, 1993 BPD 16, at 7. On January 28, 1994, the United States Court of Appeals for the Federal Circuit overturned Sterling, and held that the Board has the discretion to award the expert fees and costs incurred in filing and pursuing a protest. Sterling Federal Systems, Inc. v. Goldin, 16 F.3d 1177, 1188 (Fed. Cir. 1994). On remand from the Court of Appeals, the Board granted Sterling's motion for expert and consultant fees, returning to its prior practice of reimbursing such fees. Sterling, 95-1 BCA at 137,424, 1995 BPD 65, at 9. Grumman appealed our decision denying protester's entitlement to reimbursement for expert consultant fees incurred in filing and successfully pursuing its protest. The United States Court of Appeals for the Federal Circuit vacated our decision and remanded the case to this Board. Grumman Data Systems Corp.v. Widnall, No. 93-1346 (Fed. Cir. May 27, 1994). On June 1, 1994, the Board docketed the instant remanded cost case. On April 7, 1995, Grumman, as requested by the Board, submitted a supplemental brief regarding the recoverability of expert consultant fees and expenses in this case. Protester's Supplemental Brief on the Issue of Consultant Fees and Expenses at 1. On June 22, 1995, the Board requested additional documentation for consultant's expenses because Grumman had "requested a lump sum of $8,103.44 for meals, hotels, and airfare for its consultants, without allocating these expenses or providing receipts." Order Reopening Record (June 22, 1995). On July 20, 1995, Grumman submitted an additional declaration and further documentation. Protester's Response to Board's Order Regarding Consultant Expenses. Discussion To qualify for reimbursement under the Brooks Act, the costs in question must be necessary and reasonable. Sterling, 95-1 BCA at 137,422, 1995 BPD 65, at 5. Grumman has demonstrated both the necessity and reasonableness of its expert consultant costs here. Protester's Supplemental Submission in Support of Its Request for Expert Consultant Fees and Costs at 4-5. The protest involved complex technical issues in computer technology -- the capabilities of offerors' proposed systems as to user friendliness, systems architecture, transition, security, maintenance, and management. The consultants attended depositions, advised counsel on technical issues, analyzed thousands of technical documents, and one consultant acted as Grumman's technical representative at four days of hearing. Id. at 4. The Air Force contends that these expert costs are not reimbursable because the expert consultants did not testify. Government's Brief on the Issue of Expert Witness Fees in "JSAN I" at 4. We reject the Air Force's argument. This Board has previously awarded expert consultant costs to a prevailing protester in cases which were settled prior to trial, and the expert consultants never testified. E.g., Science Applications International Corp. v. Department of the Navy, GSBCA 12923-C(12834-P), 94-3 BCA 27,262, 1994 BPD 205, aff'd on reconsideration, 95-1 BCA 27,603, 1995 BPD 77; Dun's Marketing Services Inc., GSBCA 9875-C(9746-P), 89-1 BCA 21,565, 1989 BPD 43. The test for awarding expert consultant fees is not whether the expert testified at trial, but whether the expert's assistance was necessary for protester to pursue the protest. Here, because the Board's protective order prevented protester's employees from gaining access to proprietary information of other offerors and to procurement-sensitive information, protester was required to employ outside consultants and experts to pursue its case. Further, given the complex technical issues which went to the heart of the protest, technical assistance was clearly necessary. Having found the reimbursement of non-testifying expert consultant fees warranted here, the Board must "independently determine that reimbursement is appropriate." Volt/Alphanumeric Publication Systems v. Department of the Navy, GSBCA 13195-C(13137-P), slip op. at 2 (Jan. 26, 1996) (citing Sterling, 95-1 BCA at 137,425, 1995 BPD 65, at 10). In this case, we have examined Grumman's motion for costs and documentation, including supporting declarations, and have concluded that the requested costs should be awarded. The expert consultants' hourly rates and the number of hours expended are reasonable and reimbursable, as are the expenses incurred. Grumman is awarded $100,053.94 for the fees and expenses of its expert consultants in the instant protest. Decision Accordingly, we GRANT applicant's request for costs in the amount of $100,053.94. This award is to be paid, without interest, from the permanent indefinite judgment fund, 31 U.S.C. 1304 (1988). 40 U.S.C. 759(f)(5)(c) (1988). __________________________ MARY ELLEN COSTER WILLIAMS Board Judge We concur: ____________________________ ____________________________ EDWIN B. NEILL CATHERINE B. HYATT Board Judge Board Judge