_____________________________ GRANTED IN PART: May 24, 1995 _____________________________ GSBCA 12256-C(12099-P) INTEGRATED SYSTEMS GROUP, INC., Applicant, v. DEPARTMENT OF THE AIR FORCE, Respondent. Shelton H. Skolnick, Derwood, MD, counsel for Applicant. Clarence D. Long, III, and Joseph M. Goldstein, Office of General Counsel, Department of the Air Force, Washington, DC; and Captain C. Wesley Bridges, II, Maxwell AFB, AL, counsel for Respondent. Before Board Judges DANIELS (Chairman), VERGILIO, and DeGRAFF. VERGILIO, Board Judge. On January 8, 1993, Integrated Systems Group, Inc. filed an application to recover $1,635 as its costs of filing and pursuing the underlying protest as an intervenor of right. The agency maintains that Integrated is not an appropriate party to recover its costs because it did not succeed on any significant issue. The Board concludes that Integrated succeeded on a significant issue and is an appropriate party to recover its costs. The Board grants the request for $1,035 (retained counsel fees) and denies the remainder of the request as insufficiently supported in-house costs. Findings of Fact 1. The protest underlying this cost application was filed by Atlantic Microsystems, Inc. Integrated--the applicant here-- intervened of right in support of each basis of protest. In dismissing the protest, the Board stated: protester contends that placement of an order under the noticed schedule contract was not at the lowest overall cost to the Government, and thus in contravention of statute and regulation. Protester also contends that the agency erroneously concluded that the equipment noted in protester's response to the CBD notice was incompatible with the agency's existing system, particularly given that the requested compatibility was not a salient characteristic identified in the CBD notice. Further, protester contends that the documentation and certifications required by the agency improperly restricted the procurement to specific make and model equipment. Intervenor supports protester on all counts of the protest. On December 1, 1992, the parties submitted to the Board a joint stipulation of settlement and a motion to dismiss with prejudice. The agency: acknowledges a material violation of statute and regulation in that the synopsis for this requirement, as published in the [CBD], did not include as a salient characteristic the requirement that certain items identified in the solicitation be validated for use in an existing Sun Microsystems, Inc. ("Sun") ADA development environment, which requirement was made known to [protester] five days after the deadline for receipt of the responses. Joint Stipulation at 1-2 ( 1). Further, the stipulation provides that the agency's "failure to include the validation requirement in the synopsis as a salient characteristic resulted in a response from [protester] which did not include validation of the product submitted." Id. at 2 ( 2). Moreover, the agency recognizes that it did not "obtain" a justification and approval for other than full and open competition in this procurement, and that it failed to ensure full and open competition of the agency's requirements. Id. ( 3, 4). The agency "agrees to terminate this contract for convenience and reassess its requirements." Id. ( 5). Further, the parties consider protester to have prevailed "for the purpose of obtaining an award of costs pursuant to Rule 35," and recognize that both the protester and intervenor may request costs pursuant to that rule. Joint Stipulation at 3 ( 8). The parties acknowledge, however, that the Board would determine the amount and reasonableness of any award under Rule 35. Id. ( 9). It is the Board which determines whether a party is "appropriate" to recover costs, and the reasonableness of any amount awarded. 40 U.S.C. 759(f)(5)(C) (1988); Sterling Federal Systems, Inc. v. National Aeronautics & Space Administration, GSBCA 10000-C(9835-P), 92-3 BCA 25,118, at 125,216-17, 1992 BPD 141, at 1. Atlantic Microsystems, Inc. v. Department of the Air Force, GSBCA 12099-P, 1992 BPD 394 (Dec. 10, 1992). In light of a joint request of the parties, the Board dismissed the protest. Id. 2. On January 8, 1993, pursuant to statute, 40 U.S.C. 759(f)(5)(C) (1988), Integrated filed its application to recover $1,635 as its costs of filing and pursuing the protest. 3. Of the requested amount, $1,035 represents fees of retained counsel; that is, an hourly rate multiplied by a total number of hours expended by the individual attorney. The daily entries of effort attribute the given hours to the underlying protest. Motion for Award of Costs, Attachment. The time expended and hourly rate are reasonable. 4. Of the requested amount, $600 is said to reflect costs (hours expended multiplied by an hourly rate) attributable to Integrated's Vice President of Marketing, who has submitted certifications: Certification of Accuracy: By signing this document undersigned certifies the accuracy of the hours and activities engaged in filing and pursuing this protest[.] Certification of Rate: By signing this document the undersigned certifies the accuracy of the hourly rate in filing and pursuing this protest. Motion for Award of Costs, Attachment. 5. For the in-house individual, the daily entries explaining efforts are consistent with the entries of the attorney; e.g., conference calls and conversations involving the two individuals on given dates. However, the smallest increment of time entered for the in-house individual is one-half hour. For apparently parallel efforts, the thirty-minute blocks generally exceed the more refined entries of retained counsel, which are in tenths of hours. Motions for Award of Costs, Attachments. Thirty minutes is excessive for accomplishing various of the efforts described. 6. The record contains no explanation as to the derivation of the hourly rate ($80) of the in-house individual. Discussion Relying upon statute, 40 U.S.C. 759(f)(5)(C) (1988), Integrated seeks to recover $1,635 as its costs of filing and pursuing the underlying protest. Integrated contends that it is an appropriate party to recover its costs, because it supported the issues of protest and obtained a desirable result--the agency acknowledged a violation of statute and regulation, terminated the underlying order, and agreed to reassess its requirements. The Board denies the request of Integrated that "the Board summarily dismiss the RESPONDENT'S RESPONSE TO COST MOTIONS." Reply of Integrated (Feb. 16, 1993) at 2. The agency's position is not contrary to the terms of the settlement agreement, in which the agency expressly recognized that only the protester prevailed. Moreover, as indicated in the dismissal of the underlying protest, "The parties acknowledge, however, that the Board would determine the amount and reasonableness of any award under Rule 35. It is the Board which determines whether a party is 'appropriate' to recover costs, and the reasonableness of any amount awarded." Finding 1. In the context of this cost case, the agency suggests that Integrated may not be an "interested party." The agency references an unresolved agency motion in a protest brought by Integrated relating to the same requirements; the protest was dismissed as moot. Integrated Systems Group, Inc. v. Department of the Air Force, GSBCA 12111-P, 93-2 BCA 25,655, 1992 BPD 396. The agency has not put forward a compelling argument explaining why Integrated was not an "interested party" in the protest underlying this cost case and is not an "interested party" in the context of this cost case. The agency has not taken issue with the assertion of Integrated that it is a vendor which could potentially meet the agency's underlying requirements. Integrated was a party in support of the issues of protest. Although the settlement agreement identifies only the protester as having been adversely affected by agency violations, the agency both recognized that it lacked justifications for other than full and open competition, and agreed to terminate the underlying order and reassess its requirements. With the termination of the order, Integrated obtained an opportunity to satisfy the agency's underlying requirements. Integrated was more than a "fortuitous beneficiary" because it supported the issues of protest and sought relief similar to that agreed upon by the agency. The Board concludes that Integrated prevailed on a significant issue; as an intervenor of right, Integrated obtained tangible benefit. The requested attorney fees of $1,035 were incurred in filing and pursuing the protest/intervention and are reasonable and reimbursable. The Board grants the recovery of these costs. The in-house employee costs of $600 are not reasonably justified. Thirty-minute increments for various activities are excessive. Further, the record does not demonstrate how the hourly rate was derived--that is, the record does not reveal what the hourly rate reflects, includes, or excludes. A prerequisite to recovery of in-house costs requires support in the record: "Without a basis to determine the reasonableness of the hourly rate claimed by the president, we deny recovery with respect to all amounts for his efforts." Rocky Mountain Trading Co., GSBCA 8943-C(8845-P), 89-3 BCA 22,110, at 111,214, 1989 BPD 219, at 4. Accordingly, the Board denies recovery of the in-house employee costs. Decision The Board GRANTS IN PART the motion for recovery. As costs of filing and pursuing the protest, the Board awards $1,035, and denies the remainder, $600. The awarded amount is to be paid in accordance with statute. 40 U.S.C. 759(f)(5)(C) (1988); 31 U.S.C. 1304 (1988). ________________________ JOSEPH A. VERGILIO Board Judge I concur: _________________________ STEPHEN M. DANIELS Board Judge DeGRAFF, Board Judge, concurring. I concur in the result reached by the majority because I believe the amount awarded to protester is reasonably attributable to, and properly compensates for, the efforts of protester's counsel. I would not, however, award any of the salary or salary-related costs of the protester's employee. See Sterling Federal Systems, Inc. v. National Aeronautics & Space Administration, GSBCA 10000-C-REM(9835), 95-1 BCA 27,575, 1995 BPD 65 (DeGraff, J., dissenting). _________________________ MARTHA M. DeGRAFF Board Judge