GRANTED: August 25, 1993 GSBCA 11974-C(11921-P) INTEGRATED SYSTEMS GROUP, INC., Protester, v. DEPARTMENT OF COMMERCE, Respondent. Shelton H. Skolnick, Derwood, MD, counsel for Protester. Jerry A. Walz, Mark Langstein, and Kenneth A. Lechter, Office of the Assistant General Counsel for Finance and Litigation, Department of Commerce, Washington, D.C., counsel for Respondent. Before Board Judges BORWICK, HYATT, and WILLIAMS. HYATT, Board Judge. Pursuant to Rule 35, protester, Integrated Systems Group, Inc. (ISG), filed a timely motion for the recovery of its costs of pursuing the underlying protest. Respondent, the Department of Commerce (DOC), argues that protester should not be awarded its protest costs because the agency promptly settled with protester once it realized that the agency procurement office had misread the protester's response to its Commerce Business Daily (CBD) synopsis. We disagree with respondent, and award ISG protest costs in the amount of $2,155. Background On July 7, 1992, ISG filed a protest at the Board challenging the award of a contract to Sylvest from the Sun Microsystems GSA Schedule. A pre-hearing conference was held on July 13, 1992. On July 14, 1992, protester's counsel visited respondent's offices in order to review the procurement file. At this time, it was discovered that the agency procurement office had misread protester's response to its CBD notice and that protester's was lower than the schedule price. Respondent promptly agreed to cancel the award and solicit competitively. Respondent's Response to Motion for Costs at 2; Protester's Reply to Respondent's Response at 1-2. On July 16, 1992, the parties filed a joint stipulation with the Board asking that the protest be granted. In accordance with the stipulation, the Board granted the protest. Integrated Systems Group, Inc. v. Department of Commerce, GSBCA 11921-P, 1992 BPD 197 (July 24, 1992). As provided under the settlement agreement of the parties, the issue of protest costs was to be determined pursuant to the procedures provided by Board Rule 35.[foot #] 1 On August 17, 1992, protester filed a motion to recover $1,255 in costs related to this protest. On September 21, 1992, protester amended its claim to total $2,155, reflecting additional attorney fees of $900 expended in replying to respondent's opposition to protester's cost motion. Discussion Respondent, quite correctly, points out that it acted quickly and efficiently to correct its error and resolve this protest.[foot #] 2 Accordingly, instead of awarding ISG its protest costs, respondent urges that the Board should take the opportunity to announce its intention to follow the practice of the General Accounting Office (GAO), which routinely holds that the award of protest costs is appropriate only where agencies unduly delay taking corrective action in the face of a clearly meritorious protest. Respondent points out that under GAO precedent, the eight days required to resolve this protest would not constitute "undue delay" and that the agency's quick actions should be deemed to obviate the payment of protest costs.[foot #] 3 ----------- FOOTNOTE BEGINS --------- [foot #] 1 48 CFR 6101.35 (1992). [foot #] 2 Indeed, we have no doubt that respondent's quick action was largely contributory to the minimal amount of attorney fees that were incurred in the pursuit of this protest. [foot #] 3 Respondent also submits an affidavit of the contracting officer stating that had protester contacted her immediately after award she would have voluntarily taken corrective action without the need for the filing of a protest. We do not disbelieve the contracting officer; however, the pursuit of a voluntary resolution with the agency, although encouraged, is not, under our case law, a condition precedent to an award of fees for successful pursuit of a protest. There are many reasons, including the desire to obtain an immediate suspension of the procurement so as to preserve the opportunity (continued...) ----------- FOOTNOTE ENDS ----------- At the outset, it should be noted that we do not regard this protest as an instance in which protester succeeded in showing nothing more than a minor technical violation of procurement regulations. Protester's complaint was valid and resulted in achieving the full measure of success sought by protester -- the opportunity to compete for the award. The fees claimed are reasonable and are sufficiently documented. We fully agree that the agency acted with commendable celerity in rectifying the mistake that led to the protest. The GAO cases respondent cites are based on regulations not applicable to our proceedings, however.[foot #] 4 Although the Competition in Contracting Act (CICA) addresses protests at both the Board and GAO, the Act creates significant distinctions in the protest processes in these two forums. Compare 31 U.S.C. 3551-3556 (1988) with 40 U.S.C. 759(f) (1988). These distinctions relate, inter alia, to such matters as the time frames in which protests must be processed, the availability of a suspension of the procurement and the effect of the tribunal's decision. Although the wording of the sections relating to an award of costs is similar, the legislative history of CICA reveals a distinction in the Congressional intent for administration of this aspect of the legislation as well. In alluding to the Board's authority to award costs, the conference committee report accompanying CICA indicates simply that the Board may award costs when a protest is sustained. It is more explicit in discussing the authority of the Comptroller General, stating that "the Comptroller General will declare monetary awards only in cases where the agencies have unfairly excluded ----------- FOOTNOTE BEGINS --------- [foot #] 3 (...continued) for meaningful relief, which may motivate the protester to file a protest with the Board without first exploring resolution with the agency. [foot #] 4 Following the enactment of the Competition in Contracting Act of 1984 (CICA), GAO promulgated a regulation expressly providing that costs would not be awarded when an agency took corrective action prior to issuance of a ruling. Subsequently, GAO amended its regulation to provide that it "may" award costs, even if corrective action is taken by an agency prior to issuance of a ruling, if GAO finds that the agency delayed unduly. As the cases explain, GAO's cost regulation is intended generally to restrict protest cost awards when an agency acts promptly, while preserving the discretion to make such awards when the facts and circumstances suggest that it took an inordinate amount of time for voluntary corrective action to occur. 4 CFR 21.6(e) (1992); Marinette Marine Corp., B-245130.2, ______________________ 92-1 CPD 298; Oklahoma Indian Corp., B-243785.2, 91-1 CPD ______________________ 558. ----------- FOOTNOTE ENDS ----------- vendors from procurements, and not in cases involving minor technicalities."[foot #] 5 H.R. Rep. No. 861, 98th Cong., 2d Sess. 1431, 1437, reprinted in 1984 U.S.C.C.A.N. 2119, 2125. The Board has not promulgated rules that parallel those adopted by GAO with respect to awards of protest costs, nor has it adopted such a practice in its cases. In contrast, the Board routinely grants the costs of successful pursuit of a protest in similar situations. For example, in Communications Resource Group, Inc. v. General Services Administration, GSBCA 11038- C(10998-P), 92-2 BCA 24,769, 1992 BPD 29, the Board granted reasonable protest costs where a protest was dismissed eight days after being filed as a result of the agency's prompt initiation of corrective action. We are not persuaded by respondent's contention that an award of costs in this case would eviscerate the discretionary nature of the Board's authority to make cost awards to successful protesters. Because the Brooks Act provides that the Board "may" award protest costs, the Board has recognized that an award of attorney fees need not be automatic merely because protester has established a violation of regulation or statute. See, e.g., Computervision Corp., GSBCA 8838-C(8709-P), 87-2 BCA 19,818, 1987 BPD 70 (protester's motion for costs denied when it prevailed only on a threshold issue that allowed it to be heard on a substantive issue which it ultimately lost). The Board has, furthermore, construed this language to require it to consider both entitlement and amount even where a protester has prevailed. In the case at hand we are persuaded that it is appropriate to make an award and that the amount requested is reasonable and properly supported. Decision Protester's motion for costs is GRANTED. Protester is awarded $2,155. 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). ----------- FOOTNOTE BEGINS --------- [foot #] 5 Although the Board has not explicitly stated it will not award protest costs in "cases involving minor technicalities," as a practical matter the result is the same, since the Board will not grant a protest based on a showing of a de minimis error in the procurement or in the absence of a showing of prejudice to the complaining protester. See, e.g., US ___ ____ __ Sprint Communications Co. v. Department of Defense, 93-1 BCA ----------- FOOTNOTE BEGINS --------- 25,255, 1992 BPD 165, aff'd per curiam, No. 92-1470 (Fed. _________________ Cir. July 15, 1993) (table); Corporate Jets, Inc., GSBCA 11049-P, ____________________ 91-2 BCA 23,998, 1991 BPD 111; Andersen Consulting, GSBCA ___________________ 10833-P, 91-1 BCA 23,474, 1990 BPD 396, aff'd, 959 F.2d 929 _____ (Fed. Cir. 1992). ----------- FOOTNOTE ENDS ----------- ______________________________ CATHERINE B. HYATT Board Judge We concur: ___________________________ _____________________________ ANTHONY S. BORWICK MARY ELLEN COSTER WILLIAMS Board Judge Board Judge