____________________________________________ GRANTED IN PART: April 13, 1993 ____________________________________________ GSBCA 12225-C(12023-P) VALIX FEDERAL PARTNERSHIP I, Protester, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent. Shelton H. Skolnick, Derwood, MD, counsel for Protester. Barbara Robbins, Office of the General Counsel, Department of Health and Human Services, Washington, DC, counsel for Respondent. Before Board Judges PARKER, BORWICK, and HYATT. BORWICK, Board Judge. Protester, a prevailing party in a protest, seeks an award of its costs of filing and pursuing the protest. On November 17, 1992, the Board granted the protest in part, finding the contracting officer had failed to consider the appropriate factors mandated by regulation in determining not to set aside for exclusive small business participation a procurement for advanced "486" personal computers. Valix Federal Partnership I v. Department of Health and Human Services, GSBCA 12023-P, 1992 BPD 357 (Nov. 17, 1992), reconsideration den., 1993 BPD 21 (Jan. 12, 1993). Protester has filed its timely Motion for Costs seeking $4,725 as the cost of filing and pursuing the protest, including attorney fees of $3,045 and employee (not attorney) costs of $1,680. The employee costs are based on the time spent by each employee in handling aspects of the protest multiplied by the employee's hourly rate. Respondent objects to the award of the $4,725, arguing that protester did not prevail on a significant issue or achieve the benefit it sought in bringing the litigation. We conclude that protester did succeed on a significant issue, and is entitled to an award of the attorney fee component of its request. Protester, however, is not entitled to the employee cost component of $1,680. The fee shifting provision of the Brooks Act, 40 U.S.C. 759 (f)(5)(C) (1988), provides for a Board award of those costs of filing and pursuing the protest, other than attorney fees, which are taxable costs as defined by 28 U.S.C. 1920. We grant the attorney fee portion of the request for a total award of $3,045. Background On September 18, 1992, Valix Federal Partnership protested the contracting officer's decision not to set this procurement aside for exclusive small business participation. The contracting officer's decision was based on her finding that, within the labor surplus area of Washington, DC, there were not two or more small businesses capable of offering the specified products. Protester also challenged the evaluation factors set forth in Section M of the solicitation as too restrictive. As relief, protester sought revision of the respondent's delegation of procurement authority that would "direct the Government to proceed according to statute and regulation." Complaint, GSBCA 12023-P. On November 17, 1992, the Board granted the underlying protest in part. The Board found the contracting officer did not consider the factors specified in regulation when she decided not to set aside the procurement for exclusive small business participation and that the contracting officer had violated those regulations, i.e., 48 CFR 19.502-2(a), 19.102(f)(1), and 13.121.906(b)(2)(1991). The Board revised respondent's delegation of procurement authority to require the contracting officer to make another set-aside determination, this time, considering all the factors specified in the applicable regulations. The Board also denied the protester's challenge to the evaluation factors set forth in Section M of the solicitation. Valix Federal Partnership I, 1992 BPD 357. On December 16, 1992, protester filed its timely motion for $4,725 as the cost of filing and pursuing this protest, including attorney fees of $3,045 and employee costs of $1,680. As an attachment to its motion, protester included an itemized list of its attorney fees associated with this protest and its costs for three corporate employees, Mr. Curcio, Mr. Mills and Mr. Jackson. Protester's Motion for Costs at 6-10. Discussion The Brooks Act provides that whenever this Board "determines that a challenged agency action violates a statute or regulation or the conditions of any delegation of procurement authority" from the General Services Administration, we may "further declare an appropriate interested party to be entitled to the costs of . . . filing and pursuing the protest, including reasonable attorney's fees." 40 U.S.C. 759(f)(5)(C)(i) (1988). Respondent objects to protester's cost motion on the ground that protester is not an appropriate interested party as it did not prevail on a significant issue or achieve the benefit it sought in bringing its protest. Respondent notes that after the resolution of the protest, respondent made a second determination and again determined not to set-aside the procurement for the exclusive participation of small business. Respondent argues that at best protester won a pyrrhic victory because the Government did not provide some benefit that materially altered protester's competitive position, citing Bedford Computer Corp., GSBCA 9837-P(9742-P), 89-2 BCA 21,827, 1989 BPD 121. Respondent's Opposition to Motion for Protest Costs at 1, 7-8. We have defined an "appropriate interested party" as: "one that has prevailed on any significant issue in the litigation that achieves some of the benefit sought in bringing the protest." Telos Field Engineering v. Department of the Army, GSBCA 9887-C(9735-P), et al., 90-3 BCA 23,184 at 116,380, 1990 BPD 194, at 3; see Lockheed Missiles & Space Co. v. Department of the Treasury, GSBCA 11604-C(11362-P), 1992 BPD 276, at 2 (Sept. 30, 1992), citing NCR Comten, Inc., GSBCA 8229-C(8091-P), 86-2 BCA 18,822, at 94,852, 1986 BPD 24, at 10 (appropriate interested party is a "prevailing party"). A "possibility" of a "further opportunity" to receive an award is sufficient benefit to qualify for award of costs and filing and pursuing the protest. Telos, 90-3 BCA at 116,380, 1990 BPD 194, at 5. We conclude that protester is an appropriate interested party. It is simply not so, as respondent maintains, that the small business set-aside was an insignificant issue; it was the focus of the protest, the issue to which protester devoted its time at the hearing and in the post-hearing briefs. Further, protester sought the relief that was granted, an order requiring respondent to proceed in accordance with regulation. Respondent's "no-benefit" argument and its reliance on Bedford is not persuasive. In Bedford, we did not construe the "appropriate interested party" provision of section 759(f)(5)(C)(i) of the Brooks Act as requiring that the protest relief must have resulted in a quantifiable economic benefit to the protester. We found that Bedford was not an appropriate interested party since Bedford had dropped its protest in exchange for a payment from the Government, a practice popularly known as "fedmail." Bedford. This protest was different. Here, protester successfully challenged one of fundamental terms of the procurement--the size of the competitive field. The Board required the Government to take a second look, which afforded protester the further opportunity of the narrowing of the competitive field. Had the procurement been limited to small businesses, protester would have been in a better competitive position. As in Telos, the possibility of altered terms of competition achieved "some of the benefit" protester sought in bringing the protest, and is sufficient to make protester "an appropriate interested party." Also, respondent's error on the standards to be used for defining a basic condition of the procurement is hardly a technical violation, whether the error is subject to correction or not. Protester, however, is not entitled to an award of its non- attorney employee costs ($1,680), incurred by protester for handling the protest. Such costs are not taxable costs, recoverable under the fee shifting provisions of the Brooks Act. Old Stone Leasing Corp. v. Department of the Army, GSBCA 10747-C(10613-P), 1992 BPD 331, at 6 (Nov. 4, 1992); Sterling Federal Systems, Inc. v. National Aeronautics and Space Administration, GSBCA 1000-C(9835-P) 92-3 BCA 25,118, 1992 BPD 141, appeal filed, 92-1552 (Fed. Cir. Sept. 21, 1992). Decision Protester's motion for costs is GRANTED IN PART. Protester is entitled to recover $3,045, without interest. 40 U.S.C. 759(f)(5)(C) (1988). _________________________ ANTHONY S. BORWICK Board Judge We concur: _________________________ ROBERT W. PARKER Board Judge _________________________ CATHERINE B. HYATT Board Judge