___________________________________ GRANTED IN PART: June 21, 1994 ___________________________________ GSBCA 12273-C(12042-P) APPLE COMPUTER, INC., Protester, v. DEPARTMENT OF THE AIR FORCE, Respondent. John A. McCullough and Ron R. Hutchinson of Doyle & Bachman, Washington, DC, counsel for Protester. Clarence D. Long, III, Office of the General Counsel, Department of the Air Force, Washington, DC, counsel for Respondent. Before Board Judges HENDLEY, HYATT, and VERGILIO. HYATT, Board Judge. Pursuant to Rule 35[foot #] 1 of the Board's Rules of Procedure, on January 22, 1993, Apple Computer, Inc. timely moved for an award of protest costs in the amount of $99,589.94. For the reasons stated, Apple's motion is granted in part. Background The underlying protests challenged the Department of the Air Force's award of a contract to Zenith Data Systems Corporation for the acquisition of microcomputer systems to support general purpose applications, including standard office automation functions such as word processing, data base management, and business graphics. The award was made under a procurement commonly referred to as "Desktop IV." Four protests were filed, ----------- FOOTNOTE BEGINS --------- [foot #] 1 48 CFR 6101.35 (1993). ----------- FOOTNOTE ENDS ----------- by CompuAdd Corporation (GSBCA 12021-P), Electronic Data Systems Corporation (GSBCA 12028-P), Government Services Technology, Inc. (GSBCA 12041-P), and Apple Computer, Inc. (GSBCA 12042-P). Apple actively pursued and supported the grounds upon which the protests were ultimately granted. See CompuAdd Corp. v. Department of the Air Force, GSBCA 12021-P, et al., 93-2 BCA 25,811, 1993 BPD 48 (1992). The protesters alleged (1) that the Zenith proposal selected for award was flawed and should have been disqualified, and (2) that the evaluations and the conduct of the "best value" analysis leading to the Air Force's decision to make a single award were faulty. The arguments seeking disqualification of Zenith's proposal were threefold -- protesters claimed (1) that Zenith's proposal exceeded the page limits for the combined management and technical areas; (2) that Zenith's proposal contained line items that were impermissibly priced below Zenith's costs and, in conjunction with this, the Government's cost evaluation was flawed; and (3) that Zenith was not able to produce and deliver quantities of microcomputer systems that complied with the Trade Agreements Act, again leading to a flawed evaluation of its proposal. Protesters also asserted that the Air Force's best value analysis failed to adhere to the solicitation's provision that it would assess whether a combination of proposals or a single proposal would be most advantageous to the Government. In addition, Apple alleged that the utilization of the proposal evaluation guide (PEG) prepared for this procurement resulted in unfair evaluation of its alternative technology. Finally, Apple asserted that its alternative technology was misscored as a result of the Government's preference for Intel-based equipment. The Board's decision granting the protests ruled that the monitors proposed in Zenith's successful offer did not meet the requirements of the Trade Agreements Act of 1979 for substantial transformation in a designated country. In addition, the Board concluded that the Air Force had not adequately considered combinations of awards in contrast to a single award in determining the best overall value for the Government. The counts relating to page limitations and below cost pricing in Zenith's proposal were rejected by the Board. The parties engaged in extensive discovery efforts in pursuing these consolidated protests. A nine day hearing was conducted and thereafter the parties submitted lengthy post- hearing briefs and a round of reply briefs. The total amount claimed by Apple Computer, Inc., $99,589.94, consists of the fees charged by its outside counsel, Doyle & Bachman, amounting to $93,365, and out-of-pocket expenses of $6,222.94, billed by that firm to Apple.[foot #] 2 Discussion Under the Brooks Act, when an agency has violated statute, regulation, or the conditions of a delegation of procurement authority, the Board may grant an "appropriate interested party" the costs of "filing and pursuing the protest, including reasonable attorney's fees, and . . . bid and proposal preparation." 40 U.S.C. 759(f)(5)(C) (1988). An "appropriate interested party" has been defined as a "prevailing party" or "one that has succeeded on any significant issue in the litigation that achieves some of the benefit it sought in bringing suit." Bedford Computer Corp., GSBCA 9837-C(9742-P), 89-2 BCA 21,827, at 109,811, 1989 BPD 121, at 3; see also Julie Research Laboratories, Inc., GSBCA 9693-C (9474-P), 91-1 BCA 23,389, 1990 BPD 345. The Air Force makes a general argument that the Board should reduce the fees claimed by Apple by at least one-half to reflect what it views to be Apple's "less serious" participation in the protest process. In support of its position, the Air Force notes that Apple was the last of the four major protesters to file a protest and intervene in the other protests. In addition, Apple's independent contentions concerning the evaluation of its alternative technology were, according to the Air Force, relatively unsuccessful. Thus, contends the Air Force, the protest results obtained by Apple do not justify the expenditure made by that protester. These protests were initiated in September 1992 and significantly amended on October 22, 1992. Eight parties participated, to varying degrees, in the proceedings; the principal participants in support of the protests were EDS, GTSI, CompuAdd, and Apple.[foot #] 3 The hearing required nine days; many of the hearing days lasted for twelve hours and ----------- FOOTNOTE BEGINS --------- [foot #] 2 In February 1994, following the issuance of the decision of the United States Court of Appeals for the Federal Circuit in Sterling Federal Systems, Inc. v. Goldin, 16 F.3d 1177 ----------- FOOTNOTE BEGINS --------- (Fed. Cir. 1994), which held that the Board is not statutorily precluded from awarding expert consultant fees or in-house costs, the Board convened a conference to inquire if any of the protesters wanted to supplement the cost applications to document such items. Apple elected not to supplement its application. [foot #] 3 Although Apple and CompuAdd participated actively in the protests, EDS and GTSI assumed the lead roles on many of the common issues. Apple and CompuAdd did not duplicate the efforts of the lead protesters, and, as appropriate, did not attend portions of the hearing, thus accounting for the lower costs incurred by these two parties. ----------- FOOTNOTE ENDS ----------- more so as to permit the parties to present their cases fully. The record compiled in the case was massive both in terms of documents and testimony. Significantly, counsel for the multiple protesters divided up tasks and cooperated as much as possible in order to streamline the proceedings and avoid duplication of effort. Thus, while it may have appeared to the Air Force as if Apple did not substantially contribute to the "success" of the two principal issues, in fact Apple's cooperative efforts, which included coordination of consolidated written discovery requests for the combined protesters, enhanced the orderly and effective presentation of all of the protesters' positions. Moreover, Apple fully supported the principal grounds on which the protests were granted. Most of its visible efforts at the hearing and arguments presented in its briefs were devoted to the evaluation of proposals and other matters underlying the best value and dual award issues. For these efforts, Apple is entitled to recover legal fees and expenses incurred. See Grumman Data Systems Corp. v. Department of the Air Force, GSBCA 11799-C(11635-P), 93-2 BCA 75,773, 1993 BPD 16. A review of the documentation provided by Apple shows that the costs claimed are appropriate and properly supported. At the same time, the parties did devote effort to developing issues that were wholly rejected in the Board's decision and which did not contribute to the development of background or other relevant information useful in the determination of the issues that were successful. In exercising discretion to award the costs of pursuing a protest to a prevailing protester, the Board has recognized that there are circumstances when an award should be reduced to account for time spent pursuing issues that did not relate to or contribute to the success of the issues on which that party prevailed. The "make whole" policy underlying CICA's cost-shifting provision should be viewed in the context of the need to balance the competing goals of encouraging vindication of legal rights while confining costs to those appropriately incurred by the litigant in order to prevail. See Sterling Federal Systems, Inc. v. Goldin, 16 F.3d 1177, 1187 (Fed. Cir. 1994). In various contexts, it has been recognized that "[w]here . . . claims are based on different facts and legal theories, and the [applicant] has prevailed on only some of those claims, . . . 'these unrelated claims [should] be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim.'" Texas State Teachers Ass'n v. Garland Independent School District, 489 U.S. 782, 789 (1989) (quoting Hensley v. Eckerhart, 461 U.S. 424, at 435 (1983)). Relying on this rationale, the Board has concluded that where there are claims that are "distinct in all respects from [the] successful claims, the hours spent on [the] unsuccessful claim[s] should be excluded in considering the amount of a reasonable fee." RMTC Systems, Inc. v. Nuclear Regulatory Commission, GSBCA 11893-C(11734-P), 93-3 BCA 26,147, 1993 BPD 216, modified on reconsideration, 94-2 BCA 26,670, 1994 BPD 13 (quoting Hensley v. Eckerhart, 461 U.S. at 440); accord CACI, Inc. v. Department of the Army, GSBCA 12423-C (11523-P), 1994 BPD 107 (May 31, 1994); Storage Technology Corp., GSBCA 9939-C(9793-P), 91-3 BCA 23,041, 1990 BPD 150; Digital Equipment Corp., GSBCA 9285-C(9131-P), 89-3 BCA 22,181, 1989 BPD 248. Specifically, the Board views the information developed in support of the below-cost pricing and page limitation issues as segregable. See Government Technology Services, Inc. v. Department of the Air Force, GSBCA 12277-C(12041-P) (June 21, 1994). The evidence adduced to support these two counts had no particular relevance, even by way of background information, to the issues on which protesters ultimately prevailed. The records adduced by Apple, although sufficiently well documented to establish that the time charged was properly devoted to the Desktop IV litigation, are not detailed enough to enable the Board to ascertain the precise amount of time devoted to these unsuccessful claims and it would not be practical or economical to require Apple to provide more detailed information. Since Apple did intervene in and support these counts, however, we believe some reduction is appropriate. Based on the Board's independent review of the transcript and post-hearing briefs, we conclude that a five percent reduction in protest costs would be appropriate.[foot #] 4 Accordingly, we grant Apple's application in the amount of $94,610.44. Decision For the reasons stated above, protester's motion is GRANTED IN PART. Protester is awarded $94,610.44. This award may 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). ___________________________ CATHERINE B. HYATT Board Judge We concur: _______________________________ ____________________________ ----------- FOOTNOTE BEGINS --------- [foot #] 4 In exercising our discretion to determine an appropriate amount to be awarded for protest costs, we have applied this percentage reduction to all of the remaining cost cases associated with these protests. ----------- FOOTNOTE ENDS ----------- JAMES W. HENDLEY JOSEPH A. VERGILIO Board Judge Board Judge