__________________________________ GRANTED IN PART: February 17, 1994 __________________________________ GSBCA 12270-C(12099-P) ATLANTIC MICROSYSTEMS, INC., Protester, v. DEPARTMENT OF THE AIR FORCE, Respondent. Alex D. Tomaszczuk and Devon E. Hewitt of Shaw, Pittman, Potts & Trowbridge, Washington, DC, counsel for Protester. 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 LaBELLA, HENDLEY, and VERGILIO (presiding). HENDLEY, Board Judge. We concur with the findings of fact of the presiding judge, and with his decision granting the requested costs of filing and pursuing the protest. However, in contrast to the presiding judge, we permit the parties to further develop the record regarding the request for costs of bid and proposal preparation. The agency has not objected to the Board granting the requested costs of bid and proposal preparation. The factual and legal record has not been developed to address three particular matters. First, are costs incurred in preparing a response to a notice of intent to place an order under a schedule contract reimbursable as costs of "bid and proposal preparation"? Second, does a sufficient nexus exist between the alleged violations and the protester's efforts such that efforts were wasted and costs reimbursable? Third, the Board reimburses in-house personnel at the cost to the party (e.g., burdened labor rates), not at lost opportunity costs as protester here requests. The record does not substantiate the requested hourly charge. The Board reopens the record in this cost case to permit the protester to supplement its request for bid and proposal preparation costs. Any such submission is to be filed and served no later than March 1, 1994. The agency may file and serve a response no later than two weeks following its receipt of a supplement. Upon receipt of the agency's submission, or the expiration of the allotted time, the record will close in this matter. Decision The Board GRANTS the motion for recovery of $22,580.61 as costs of filing and pursuing the protest. 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). As stated above, the record in this cost case is reopened to address the matters related to the requested recovery of bid and proposal preparation costs. _________________________ JAMES W. HENDLEY Board Judge I concur: _________________________ VINCENT A. LaBELLA Board Judge VERGILIO, Board Judge. On January 21, 1993, Atlantic Microsystems, Inc., filed a motion to recover $22,580.61--its costs of filing and pursuing a protest involving the respondent, the Department of the Air Force. On March 8, 1993, the protester sought an additional $6,187.50, as its costs of bid and proposal preparation. The agency does not object to reimbursement of either amount. The Board concludes that the protester prevailed in its protest and is an appropriate, interested party to recover its costs of filing and pursuing that protest. Finding the requested amount to be substantiated and reasonable, the Board grants the motion for recovery of $22,580.61. The protester calculates its requested recovery of bid and proposal preparation costs on the hourly rate it would charge customers, not on the actual cost to the protester of its employees (e.g., burdened hourly rates). This Board has denied recovery on this basis. The protester has put forward no evidence or assertion suggesting a reasonable basis to calculate recovery of the alleged costs. Accordingly, I would deny this portion ($6,187.50) of the motion for recovery. Findings of Fact 1. A notice in the Commerce Business Daily (CBD) announced the agency's intent to place an order under a non-mandatory schedule contract with other than the protester. The protester responded to the notice. The agency placed the order as announced. The protester filed its protest with the Board maintaining that: the order was not at the lowest overall cost to the Government, the agency had erroneously concluded that the equipment noted in the protester's response was incompatible with the existing system (particularly given that such compatibility was not identified as a salient characteristic in the CBD notice), and documentation and certifications required by the agency while reviewing the responses improperly restricted the procurement to specific make and model equipment. Atlantic Microsystems, Inc. v. Department of the Air Force, GSBCA 12099-P, 1992 BPD 394 (Dec. 10, 1992). 2. In a joint stipulation, the agency acknowledged a "material violation of statute and regulation" in that the CBD notice "did not include as a salient characteristic the requirement that certain items identified in the solicitation be validated for use in 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." The agency agreed to terminate the order for convenience and to reassess its requirements. In light of the request of the parties, by order dated December 10, 1992, the Board dismissed with prejudice the protest underlying this request for reimbursement. Atlantic Microsystems. 3. On January 21, 1993, the protester timely (based upon a previously granted extension) filed a motion for award of its costs of filing and pursuing the protest. The protester seeks $22,580.61--$21,413.25 in attorney fees and $1,167.36 in disbursements. Protester's Motion at 2 (Jan. 21, 1993). The agency does not object to reimbursement of any of these amounts. 4. The attorney fees are calculated on an hourly basis at hourly rates, with documentation supporting the time expended and amount requested. Protester's Motion, Exhibits A, C. The disbursements are supported by documentation. Id., Exhibits B, C. Each item (e.g., courier services, local transportation, document printing and photocopying, and telecopier use) is of a variety previously reimbursed by this Board. Aspect Telecommunications v. Department of Treasury, GSBCA 11399-C(11250-P), 93-1 BCA 25,423, 1992 BPD 245; NCR Comten, Inc., GSBCA 8229[-C](8091-P), 86-2 BCA 18,822, 1986 BPD 24. The Board finds the requested amount to be reasonable and related to reimbursable matters. 5. On March 8, 1993, the protester filed a motion for the award of $6,187,50--its costs of bid and proposal preparation. Regarding the timeliness of the motion, the protester presumably relies upon a statement in its motion for recovery of its costs of filing and pursuing its protest: the protester "reserves the right to supplement this filing to claim its bid and proposal costs incurred in the [agency's] procurement should any action of respondent subsequent to January 21, 1993 justify such a claim." Protester's Motion (Jan. 21, 1993) at 3. The protester states that it "charges clients $150 per hour for its services"; the protester seeks compensation for its in-house efforts at this rate. Protester's Motion (Mar. 8, 1993), Exhibit B. The record contains no other basis for calculating the protester's costs of proposal preparation. 6. In support of its request for recovery of proposal preparation costs, the protester states the following: On February 19, the [agency] published another CBD notice announcing its intent to issue a delivery order to GTSI for equipment similar to that listed in the initial September 10 CBD notice. The February notice, however, announced the [agency's] intent to order a variety of different Sun-manufactured workstations, or their equivalents, than those listed in the original CBD notice. In addition, the February CBD notice specified that any functional equivalent items proposed must be officially certified as ADA compatible. As the Protest File submitted in the underlying protest clearly indicates, the certification required by the [agency] is cumbersome and expensive. Because the [agency] has now identified ADA compatibility as a requirement of functionally equivalent items, [the protester] cannot respond to the February CBD notice and offer DTK manufactured equipment. As a result, [the protester] responded to the CBD notice, but proposed Sun-manufactured workstations instead of the DTK workstations offered in the initial solicitation. [The protester], therefore, had to engage in a new proposal effort. Accordingly, the time and effort [the protester] expended in offering DTK products last September were wasted. Protester's Motion (Mar. 8, 1993) at 3-4 (citation omitted). Discussion The parties have not settled this cost case and asked the Board to dismiss the matter. Rather, they have agreed to a figure to be paid the protester and asked the Board to declare the protester entitled to that amount under 40 U.S.C. 759(f)(5)(C) (1988). The agreement of the parties does not lessen the obligation of the Board, before authorizing payment, to find an agency violation of statute or regulation, and to determine the appropriateness of the recovery. Sterling Federal Systems, Inc. v. Goldin, No. 92-1552 (Fed. Cir. Jan. 28, 1994). The agency has admitted to a violation of statute and regulation and has taken action consistent with that admission-- terminating the protested order and proceeding to satisfy its underlying requirement through another notice in the CBD. The protester has significantly prevailed for purposes of recovering under Rule 35 its costs of filing and pursuing the protest. The $22,580.61 in requested costs are reasonable and reimbursable. Here the Board may assume, without deciding, that there exists a nexus between the agency's violations and the efforts represented as wasted, and that the costs of preparing a response to the CBD notice of intent to place an order under a schedule contract are reimbursable as costs of "bid and proposal preparation." On the existing record, I would deny the requested recovery of $6,187.50. The protester has calculated this figure by costing its efforts at the rate it would charge a customer for services. The Board rejects this method of calculation. Rocky Mountain Trading Co., GSBCA 9054-C(8958-P), 88-3 BCA 20,939, 1988 BPD 131 (in terms of costs of salaried personnel in pursuing a protest: "A claim for an employee's time based on a constructive 'market rate' not actually incurred by a prevailing party is not reasonable"). Without a basis in the record to calculate hourly rates or otherwise formulate the costs to the protester, I would deny the request. The majority's decision to reopen the record suggests that, at least when an agency does not object to a requested amount of recovery, the Board is obligated to reopen the record to provide the parties a further opportunity to develop the factual and legal record to support the requested recovery--the Board does not simply deny requested relief as not supported by the record. This approach both permits the requesting party, in filing its cost case, to ignore case law discussing the reasonable and recoverable costs in protest cases, and unnecessarily protracts the resolution of such cases. ________________________ JOSEPH A. VERGILIO Board Judge