________________________________________________ MODIFIED ON RECONSIDERATION: January 25, 1994 ________________________________________________ GSBCA 11893-C-R(11734-P) RMTC SYSTEMS, INC., Protester, v. NUCLEAR REGULATORY COMMISSION, Respondent. Michael D. Hays and Stephen C. Crampton of Dow, Lohnes & Albertson, Washington, DC, counsel for Protester. Dennis C. Dambly, Catherine M. Holzle and Brian T. Kildee, Office of General Counsel, Nuclear Regulatory Commission, Rockville, MD, counsel for Respondent. Before Board Judges LABELLA, HYATT, and WILLIAMS. HYATT, Board Judge. On August 5, 1993, the Board issued a decision granting in part protester's application for an award of protest costs. RMTC Systems, Inc. v. Nuclear Regulatory Commission, GSBCA 11893-C (11734-P), 93-3 BCA 26,147, 1993 BPD 216. Protester's counsel, on August 8, 1993, brought to the Board's attention the failure to mention a supplemental submission that protester had filed on September 8, 1992. This filing documented additional attorney fees and disbursements incurred in pursuit of the costs application. Upon reviewing its files, the Board was unable to locate a copy of that document or of any response filed by the Government to the supplemental filing. On August 9, 1993, protester furnished a Board-stamped copy of the supplemental filing, proving that the filing had occurred on September 8, 1992. Concluding that protester's supplemental submission had been misplaced, the Board treated protester's inquiry as a motion to reopen the record and to reconsider its decision for the limited purpose of determining if the amount awarded should be increased and, if so, by how much. Respondent submitted a brief opposing an increase in the award; protester filed a reply to that brief. Protester's supplemental filing did not present new legal arguments; it simply revised protester's cost motion to include additional attorney fees and disbursements incurred in the preparation and defense of the application for protest costs.[foot #] 1 On September 13, 1993, respondent filed a detailed response, opposing any modification of the award. Respondent argued that protester was not entitled to additional costs incurred in pursuing the cost motion because it had been compensated for these efforts already and because the costs requested were excessive and unreasonable. Protester responded with a brief dated October 14, 1993. Also on October 14, protester filed a third amended costs motion to request the attorney fees and disbursements incurred since August 9, 1993, when its motion for reconsideration was filed. After considering the documentation provided by protester, and the arguments of the parties, we conclude that protester's award should be increased by the amount of $13,052.92. Background In the supplemental motion filed on September 8, 1992, protester documented an additional $579.82 in out-of-pocket disbursements[foot #] 2 and 128.16 hours of attorney and law clerk time attributable to researching and writing the motion for costs and the response to the Government's opposition. On October 14, 1993, protester filed a third amended motion for costs. This motion seeks additional attorney fees in the amount of $2,711.50 and documents disbursements in the amount of $92.10. These additional costs were incurred by protester in responding to the Government's opposition to its recovery of the costs documented in the second submission seeking to recoup costs of preparing and defending its application. In the decision issued on August 5, we granted $9,780.50 in attorney fees for pursuing the underlying protest. We do not here reexamine the 15.9 hours of attorney fees for the cost motion that we previously granted, but rather address solely the ----------- FOOTNOTE BEGINS --------- [foot #] 1 The decision issued on August 5 did grant some fees attributable to preparation of the cost application. Protester's initial motion had documented 15.9 hours of attorney time for pursuing the cost motion, totalling $2,079.50. These fees were awarded in full. [foot #] 2 Out-of-pocket expenses included such items as photocopying reproduction costs, courier services, long-distance telephone calls, on-line legal data base charges, and postage costs. ----------- FOOTNOTE ENDS ----------- recoupment of fees charged for counsel's efforts from August 4, 1992 through October 14, 1993. Discussion An appropriate prevailing party is entitled to recover the expenses incurred in preparing, filing, and defending a cost motion before the Board. Grumman Data Systems Corp. v. Department of the Air Force, GSBCA 11799-C(11635-P), 93-2 BCA 75,773, 1993 BPD 16. Moreover, the Board does not automatically reduce the amount of such expenses to be awarded solely because protester did not recover a full award of fees in connection with the underlying protest. See International Data Products Corp. v. Department of Justice, GSBCA 10403-C(10302-P), 93-2 BCA 25,606, 1992 BPD 328; Digital Equipment Corp., GSBCA 9285-C (9131-P), 89-3 BCA 22,181, 1989 BPD 248. Rather, the test is whether the hours expended by protester are reasonable and not redundant, excessive, or otherwise unnecessary. See Aspect Telecommunications v. Department of the Treasury, GSBCA 11399-C(11250-P), 93-1 BCA 25,423, 1992 BPD 245. In this case, we must conclude that much of the effort devoted to defense of the cost application as documented in the second and third amended filings was necessitated by respondent's vigorous opposition to protester's cost application, both with respect to entitlement and amounts claimed. An examination of the record does reveal a somewhat excessive number of hours charged for research efforts of a summer associate, however. In this connection, we note that the summer associate billed approximately 62 hours, for the total amount of $5,270, for researching and drafting arguments with respect to basic protest cost issues. Since the associate responsible for drafting and filing this motion also charged about the same amount of time to research the relevant case law and prepare a response to the agency's opposition, we regard the summer associate's efforts as likely to have been excessive, and possibly duplicative, in the context of this case. We therefore reduce the amount billed by the summer associate by one-half, to $2,635. See Aspect Telecommunications; PacifiCorp Capital, Inc. v. Department of the Army, Corps of Engineers, GSBCA 10830-C(10714-P), 92-3 BCA 25,117, 1992 BPD 145. We decline to reduce the fees billed by the attorney working on the case, however. Although this individual also devoted considerable time to this endeavor, we are persuaded that it was necessary in order to respond effectively to the various arguments advanced by respondent. Accordingly, we grant those fees, totalling $7,032.50, in full. Protester's supplement also documents $579.82 in additional disbursements for the time period after August 4, 1992. This amount, reflecting such items as photocopying expenses, telephone charges, courier costs, and legal data base charges, is reasonable and properly documented, and we award it in full. In support of its third cost submission, documenting a total of $2,803.60 in additional fees and expenses incurred in pursuing the cost motion, protester argues that the respondent's overly zealous objection[foot #] 3 to its amended motion for costs required protester to expend these additional costs. We agree that the efforts were justified under the circumstances -- respondent's reply brief did require some response by protester. The hours expended in this endeavor were reasonable. We therefore grant the amount requested, $2,711.50, in attorney fees. In addition, we award $92.10 in disbursements requested by protester in its third amended motion, since these expenses are properly documented and reasonable. Decision For the reasons stated above, the decision issued on August 5, 1993 is hereby MODIFIED to incorporate additional attorney fees incurred in preparing the cost application. Protester is awarded the amount of $13,867.21 (granted in initial decision) plus $13,050.92 (granted in this decision), for a total of $26,918.13. This award may 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). ___________________________ CATHERINE B. HYATT Board Judge We concur: _______________________ __________________________ VINCENT A. LABELLA MARY ELLEN COSTER WILLIAMS Board Judge Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 3 Protester points out that in response to protester's two- page motion for reconsideration, which asked only that the Board consider its entitlement to the additional amounts documented in the misplaced pleading, respondent submitted a seventeen-page brief.