GRANTED IN PART: July 30, 1993 GSBCA 12226-C(12011-P) CORDANT, INC., Protester, v. DEPARTMENT OF THE NAVY, Respondent. William A. Roberts, III, and Lee P. Curtis of Howrey & Simon, Washington, DC; and Stephannie A. Wood of Cordant, Inc., Reston, VA, counsel for Protester. Ellen D. Washington and Thomas L. Frankfurt, Information Technology Acquisition Center, Department of the Navy, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), LaBELLA, and PARKER. DANIELS, Board Judge. On November 16, 1992, the Board granted Centel Federal Systems, Inc. v. Department of the Navy, GSBCA 12011-P, et al., 93-2 BCA 25,648, 1992 BPD 359. One month later, the protester, by then having changed its name to Cordant, Inc., filed a motion for reimbursement of the costs it incurred in filing and prosecuting the case. The motion was filed in accordance with our Rule 35 and seeks an award of costs pursuant to 40 U.S.C. 759(f)(5)(C) (1988). Cordant's motion has been amended and supplemented several times. As ultimately constituted, it asks that the Board award the firm $567,706.01 in costs of filing and pursuing the protest and $2,845,463.24 in costs of proposal preparation and services rendered by counsel in constructing the portion of the claim associated with the latter category of costs.[foot #] 1 More specifically, as to protest costs, Cordant's application requests reimbursement of the following amounts: attorney fees, $398,582.64; disbursements made by attorneys for transcripts, document reproduction, computer-aided legal research, long- distance telephone calls, various means of document delivery, and other minor, litigation-related items, $29,842.77; consultant services, $61,265.72; and in-house, non-attorney costs, $78,014.88. Cordant also seeks proposal preparation costs of $2,838,688.97 and associated attorney fees of $6,774.27. The Department of the Navy, respondent, readily agreed that Cordant was a prevailing party in the underlying protest and thus entitled to an award of costs. The parties then sought from the Board, and received, a period of time in which to attempt to reach an agreement as to the appropriate amount for reimbursement. On July 27, 1993, they filed a Joint Motion for Board Order, which constitutes a request for an order that Cordant receive reimbursement in the amount of $2,598,245.62. With regard to protest costs, Cordant understands that the Board does not award reimbursement of moneys expended for consultant services and in-house, non-attorney costs. Sterling Federal Systems, Inc. v. National Aeronautics & Space Administration, GSBCA 10000-C(9835-P), 92-3 BCA 25,118, 1992 BPD 141 (full Board). Protester claimed these amounts only for the purpose of preserving its rights to such an award in the event that the Court of Appeals for the Federal Circuit overturns the cited decision in the appeal now pending. No. 92-1552 (Fed. Cir., docketed Sept. 28, 1992). Eliminating these sums from the total protest costs claimed leaves $428,425.41. This amount is properly documented. The parties have asked that we award $433,245.62. We note that both of the latter amounts are considerably greater than the sum sought by Cordant's fellow-protester, Federal Computer Corporation, as costs of filing and pursuing the case. See Federal Computer Corp. v. Department of the Navy, GSBCA 12221-C (12012-P) (July 14, 1993). We asked Cordant to show cause why the amount awarded to its fellow-protester should not be used as a lodestar against which to measure the reasonableness of the amount sought by Cordant. See Horizon Data Corp. v. Department of the Navy, GSBCA 11018-C(10831-P), 92-2 BCA 24,853, 1992 BPD 49. Cordant responded persuasively that it had taken the "laboring oar" in the prosecution of the protests, primarily by providing counsel for many depositions at which Federal Computer's counsel had not appeared, and by working with consultants to analyze matters relevant to the case and to ----------- FOOTNOTE BEGINS --------- [foot #] 1 The figures we state are very slightly different from those used by Cordant. The application includes a few computational errors which have no material effect on the total amounts involved. ----------- FOOTNOTE ENDS ----------- prepare some of those consultants to serve as expert witnesses. We are convinced here, as we were not in Horizon, that the two protesters appropriately devoted different levels of effort to the case. With regard to proposal preparation, Cordant used a two-step process to calculate the costs at issue. First, it documented the total costs it actually incurred in constructing the four principal portions of its proposal -- technical proposal evaluation sheets, management and support plans, live test demonstration, and pricing. Then Cordant made estimates (supported by affidavits of executives involved in proposal preparation) of the percentage of each category of costs the firm believed were wasted as a result of the Government's violations of law that were identified in the Board's decision in the underlying protest. See Centel Federal Systems, Inc. v. Department of the Army, GSBCA 11315-C(11238-P), 92-2 BCA 25,000, 1992 BPD 102; Recognition Equipment Inc., GSBCA 9408-C(9363-P), 89-1 BCA 21,281, 1988 BPD 228. The Navy did not question Cordant's documentation of costs. Although the parties disagree as to the percentage of some categories of costs that were wasted as a consequence of the Government's improper actions, they were able to agree on a total amount of proposal preparation costs that the Board should reimburse. Of the $2,838,688.97 sought by Cordant, the parties ask us to order reimbursement of $2,165,000. In addition, the Navy agrees that Cordant incurred $6,774.27 in attorney fees in preparing the application for wasted proposal costs; this amount is not included, however, in the parties' joint request for an award. We conclude that Cordant reasonably incurred, and properly documented, $428,425.41 in costs of filing and pursuing the protest; $2,165,000 in wasted proposal preparation costs; and $6,774.27 in attorney fees associated with preparing the application for reimbursement of the proposal costs. The first of these figures does not include any of the amounts Cordant claims it spent as consultants' fees and expenses or as internal, non-attorney costs relating directly to the protest. We agree with the parties that Cordant wasted a considerable part of its proposal preparation costs as a direct consequence of the Navy's improper procurement actions. We specifically found in the underlying protest that the weights given various scores attributed to offerors' live test demonstrations of their proposed systems were inconsistent with the weights prescribed by the solicitation; that discussions with the offerors were inadequate; and that the best value analysis relied on to select an awardee was arbitrary. As a result of these violations of law and the Navy's decision to continue the procurement under revised terms, rather than award a contract to the lowest-priced offeror, Cordant and its competitors must make significant changes to their proposals and perform second live test demonstrations. In fixing the precise amount that Cordant wasted consequent to the violations, we are guided by the parties' agreement that the number they have proposed represents reasonable compensation for Cordant's wasted efforts, irrespective of the outcome of the procurement. We would have no way to determine the correct percentage to apply to each of the categories of cost specified in the motion, apart from expert testimony, and because the parties agree on a total, we consider that securing such testimony would be an inappropriate use of resources. The total of the three amounts set forth above is $2,600,199.60, which is a bit larger than the figure of $2,598,245.62 proposed by the parties. Given this difference, the fact that the amount of protest costs we have calculated is slightly smaller than the amount jointly proposed is immaterial; clearly, the total award requested is driven by an estimate, which we honor. We grant reimbursement in the total amount agreed upon. Decision Cordant's application for reimbursement of costs incurred in filing and pursuing the underlying protest, and in preparing its proposal in the subject procurement, is GRANTED IN PART. We award to Cordant $2,598,245.62, 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). _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ VINCENT A. LaBELLA ROBERT W. PARKER Board Judge Board Judge