GRANTED IN PART: April 1, 1993 GSBCA 12176-C(12075-P) INTEGRATED SYSTEMS GROUP, INC., Protester, v. DEPARTMENT OF ENERGY, Respondent. Shelton H. Skolnick, Derwood, MD, counsel for Protester. Elizabeth Arnold, Office of the General Counsel, Department of Energy, Washington, DC, counsel for Respondent. Before Board Judges LaBELLA, WILLIAMS, and VERGILIO. WILLIAMS, Board Judge. Background On November 17, 1992, protester, Integrated Systems Group, Inc. (ISG), filed a motion for award of costs incurred pursuing its protest concerning the Department of Energy's (DOE's) rejection of its bid as nonresponsive. As a result of mediation by the hearing judge, the alternative dispute resolution procedure agreed to by the parties, the hearing judge concluded that respondent violated statute and regulation in that protester's bid should not have been deemed nonresponsive. Pursuant to an agreement of the parties, the result was accepted by the parties, and the Board dismissed the protest with prejudice on October 23, 1992. In accordance with Rule 35, protester timely filed a motion to recover its costs of filing and pursuing the protest. Respondent has not filed any response to protester's motion for the award of protest costs. Discussion Statute empowers the Board to award costs whenever the Board makes a determination that a challenged agency action violates a statute or regulation or the conditions of any delegation of procurement authority. 40 U.S.C. 759(f)(5)(B), (C) (1988). As in prior cases, this protester asks the Board to award protest costs when the underlying protest was settled and then dismissed with prejudice. E.g., Syncsort, Inc. v. U.S. Nuclear Regulatory Commission, GSBCA 11819-C(11753-P), 93-1 BCA 25,413, 1992 BPD 247; Dun's Marketing Services, Inc., GSBCA 9875-C(9746-P), 89-1 BCA 21,565, 1989 BPD 43. Unlike earlier cost cases, where the record consisted principally of agency admissions or stipulations reached by the parties, and a defined course of conduct to be followed by the agency, the underlying record here also contains a determination by the presiding judge that the agency had improperly deemed protester's bid to be nonresponsive, Integrated Systems Group, Inc. v. Department of Energy, GSBCA 12075-P, slip op. at 5 (Oct. 23, 1992). These parties had requested that the assigned panel make no determination on the merits under Rule 1(e). Rather, the parties agreed to be bound by a determination of the presiding judge--whatever the result dictated by the presiding judge, the parties agreed to an alternative dispute resolution and that the protest would be dismissed with prejudice and the agency would act in accordance with any suggested revision of its procurement authority. Although the Board did not resolve the merits of the protest in this case, the protest was dismissed with prejudice, so as to operate as an adjudication on the merits. Rule 28(a). For purposes of resolving the pending cost motion, the existing record enables the Board to determine that an agency violation of statute and regulation occurred and to deem the protester the prevailing party in this protest for recovery of costs incurred in filing and pursuing the protest. The record reveals both that the agency improperly deemed protester's bid to be nonresponsive (as the agency implicitly admits through the determination of the presiding judge), and that the agency has taken corrective action in direct response to the protest, namely, the agency agreed to amend the solicitation to state its actual needs, and to proceed in accordance with statute and regulation. The agency violated statute and regulation; the protester obtained significant relief. Therefore, the protester may recover its reasonable costs of filing and pursuing the protest. Protester has claimed $2,254 as its cost of filing and pursuing the protest. This includes $1,275 representing 8.5 hours of outside counsel's time and $931 representing 3 hours of ISG's marketing representative's time for document preparation as well as 11 hours of ISG's vice president's time for preparation of the protest, conversations with outside counsel, and participation in the mediation proceeding, as well as preparation of the cost motion. Finally, protester has claimed $48 in expenses including parking and messenger services. The Board finds both the hours expended and the amount billed by outside counsel to be reasonable. The $48 in protester's expenses are also recoverable. However, as we have recognized, the Board is not authorized to award in-house, non- attorney costs in excess of taxable costs. Sterling Federal Systems, Inc. v. National Aeronautics & Space Administration, GSBCA 10000-C(9835-P), 92-3 BCA 25,118, 1992 BPD 141, appeal docketed, No. 92-1552 (Fed. Cir. Sept. 28, 1992); Integrated Systems Group, Inc. v. Department of the Navy, GSBCA 12236- C(12127-P), 1993 BPD 25 (Jan. 22, 1993); Rocky Mountain Trading Co. v. Department of the Army, GSBCA 11033-C(20879-P), 1993 BPD 20 (Jan. 14, 1993). Decision For reasons stated above, we GRANT IN PART protester's motion for costs and award protester the amount of $1,323 representing outside counsel's fees and expenses. We DENY protester's claims for in-house labor costs. __________________________ MARY ELLEN COSTER WILLIAMS Board Judge We concur: ____________________________ ____________________________ VINCENT A. LaBELLA JOSEPH A. VERGILIO Board Judge Board Judge