___________________________________ GRANTED IN PART: June 21, 1994 ___________________________________ GSBCA 12275-C(12021-P) COMPUADD CORPORATION, Protester, v. DEPARTMENT OF THE AIR FORCE, Respondent. Marie N. Doland and James S. Kurz of Hazel & Thomas, Falls Church, VA, 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, CompuAdd Corporation timely moved for an award of protest costs in the amount of $107,312.48. The underlying protests challenged an award by the Department of the Air Force 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, by CompuAdd Corporation (GSBCA 12021-P), Electronic Data Systems Corporation (EDS) (GSBCA 12028-P), Government Services Technology, Inc. (GTSI) (GSBCA 12041-P), and Apple Computer, Inc. (GSBCA 12042-P). CompuAdd actively pursued and supported the ----------- FOOTNOTE BEGINS --------- [foot #] 1 48 CFR 6101.35 (1993). ----------- FOOTNOTE ENDS ----------- 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).[foot #] 2 Background The protesters alleged (1) that the Zenith proposal was flawed and should have been disqualified for award, 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 that (1) Zenith's proposal exceeded the page limits for the combined management and technical areas; (2) 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) 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 urged 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, CompuAdd asserted that the Government's utilization of the proposal evaluation guide (PEG) in evaluating its proposal unduly penalized its creative approach to the functional specifications. The Board's decision granting the protests of CompuAdd Corporation, Electronic Data Systems Corporation (EDS), GTSI, and Apple Computer, Inc. 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 cooperative discovery efforts in pursuing these consolidated protests. A nine day ----------- FOOTNOTE BEGINS --------- [foot #] 2 The CompuAdd decision resolved the second round ________ of protests concerning the Desktop IV procurement. Shortly after this cost application was filed, the CompuAdd decision was ________ appealed to the United States Court of Appeals for the Federal Circuit and a third protest of the Desktop IV procurement was filed at the Board. These events effectively suspended the processing of the cost applications. Following issuance of the Board's decision in the third round of protests, the appeal of the CompuAdd decision was withdrawn. ________ ----------- FOOTNOTE ENDS ----------- hearing was conducted and thereafter the parties submitted lengthy post-hearing briefs and a round of reply briefs. The total amount claimed by CompuAdd Corporation, $107,312.48, consists of $98,892.15 in attorney fees charged by its outside counsel and $8,420.33 in out-of-pocket disbursements related to the protest.[foot #] 3 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 substantially reduce the fees claimed by CompuAdd to reflect what it views to be CompuAdd's limited success in the protest process. In particular, CompuAdd's independent contentions concerning the evaluation of its proposals were, as the Air Force points out, relatively unsuccessful. Thus, according to the Air Force, the protest results obtained by CompuAdd do not justify the expenditure made by that protester. These protests were initiated in September of 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 #] 4 The hearing required ----------- FOOTNOTE BEGINS --------- [foot #] 3 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. CompuAdd elected not to supplement its application. [foot #] 4 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 (continued...) ----------- FOOTNOTE ENDS ----------- nine days; many of the hearing days lasted for twelve hours and more in an effort to enable 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. These contributions to the overall success of the protests were significant on the part of all counsel for protesters. Moreover, CompuAdd 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, CompuAdd is entitled to recover in full the legal fees and expenses incurred, even though certain of its specific contentions were rejected by the Board. These matters are not severable from the successful claims such as to require or warrant a reduction in the fees sought. See Grumman Data Systems Corp. v. Department of the Air Force, GSBCA 11799-C(11635-P), 93-2 BCA 75,773, 1993 BPD 16; International Business Machines Corp. v. Department of the Treasury, GSBCA 11605-C(11359-P), 93-1 BCA 25,420, 1992 BPD 220. At the same time, the parties did devote time 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. See CACI, Inc. v. Department of the Army, GSBCA 12423-C(11523-P), 1994 BPD 107 (May 31, 1994). Specifically, the Board views the information developed in support of the below-cost pricing and page limitation issues as segregable. 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. Although these two unsuccessful counts were not "major" compared to the considerable time and effort expended by the parties on the other issues litigated, these issues were addressed in detail at trial and in the record, were argued by the parties in the briefs, and were fully addressed by the Board in its decision on the merits. As such, these two issues were significant. Additionally, these issues were, in contrast to unsuccessful contentions relating to ----------- FOOTNOTE BEGINS --------- [foot #] 4 (...continued) attend portions of the hearing, thus accounting for the lower costs incurred by these two parties. ----------- FOOTNOTE ENDS ----------- the evaluations of particular proposals, distinct from the successful claims. Admittedly, the time and costs attributable to these issues constitute small amounts relative to those attributable to the other, successful, issues. Nonetheless, the actual amounts are not trivial. The time records adduced by CompuAdd, 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 unsuccessful claims. Since CompuAdd did intervene in and actively pursue these counts, particularly the cost issue, 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 CompuAdd's documented costs would be appropriate.[foot #] 5 Accordingly, we grant CompuAdd's request for fees and out-of pocket expenditures in the amount of $101,946.86. Decision For the reasons stated above, protester's motion is GRANTED IN PART. Protester is awarded $101,946.86. 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: _______________________________ ____________________________ JAMES W. HENDLEY JOSEPH A. VERGILIO Board Judge Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 5 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.