_______________________________ GRANTED IN PART: April 21, 1994 _______________________________ GSBCA 12428-C(12315-P) DPSC SOFTWARE, INC., Protester, v. DEPARTMENT OF THE TREASURY, Respondent, Richard A. Lebby of Encino, CA, counsel for Protester. Jerome M. Drummond, Office of Thrift Supervision, Washington, DC, counsel for Respondent. Before Board Judges BORWICK, HYATT, and VERGILIO. VERGILIO, Board Judge. On May 13, 1993, DPSC Software, Inc., filed with this Board a motion for the award of protest costs in the amount of $38,152.50, incurred in connection with filing and pursuing the underlying protest which the Board granted. The protester amended its request to seek $38,047.09. The agency opposes reimbursement of portions of the requested costs. The Board concludes that the protester is entitled to recover $17,682.09. The Board concludes that $20,365 in requested costs do not relate to filing and pursuing the underlying protest on which the protester prevailed; accordingly, it does not award that amount. Findings of Fact 1. In mid-October 1992, the agency made an award under a negotiated procurement to an offeror other than the protester. Shortly thereafter, the protester filed a protest with this Board contending that the award was improper and that it deserved the award. The parties jointly agreed to a dismissal without prejudice of the protest, with the agency to evaluate the protester's proposed software for compliance with the terms of the solicitation. On December 8, 1992, the protest was dismissed without prejudice. DPSC Software, Inc. v. Department of the Treasury, GSBCA 12315-P(12241-P), 93-3 BCA 26,052, 1993 BPD 112 (Finding 1); Distributed Planning Systems Corp. v. Department of the Treasury, GSBCA 12149-P, 1992 BPD 388 (Dec. 8, 1992). 2. Thereafter, the agency amended the solicitation. On December 28, 1992, the protester reinstated, amended, and supplemented its earlier protest. It alleged, in part, that the agency initially had failed properly to evaluate its software proposal. At the request of the protester, and without objection, the Board dismissed that protest without prejudice on January 13, 1993. DPSC (Finding 2); Distributed Planning Systems Corp. v. Department of the Treasury, GSBCA 12241-P(12149- P), 1992 BPD 388 (Jan. 13, 1993). 3. Thereafter, the agency received best and final offers. On February 24, 1993, the protester reinstated, and moved to amend and supplement, the earlier protests.[foot #] 1 The protester pursued to decision a single issue of protest; it maintained that the agency improperly awarded the initial contract because the agency had failed properly to evaluate the protester's proposal before making the selection. DPSC (Finding 3). On April 14, 1993, the Board granted the protest underlying this cost case. The Board concluded "that the agency did not properly evaluate the protester's proposal before making the initial award." Id. (Discussion paragraph 4). 4. On May 13, 1993, the protester filed, with supporting documentation, a motion to recover $38,152.50, its alleged costs of filing and pursuing the protests--$38,085 in attorney fees and $67.50 in expenses. DPSC Motion. 5. On July 13, 1993, the agency filed a motion in opposition to the requested reimbursement, asking that the Board deny all but $420.55 because the remaining $37,731.95 is unreasonable and otherwise unrecoverable. Alternatively, the agency requested that the Board deny $12,880, which it characterizes as legal fees unrelated to filing or pursuing the protest--$10,736 paid by Distributed Planning, not protester, and $3,360, which it characterizes as unreasonable air fares. The agency misattributes costs not in the protester's initial request as being part of the requested attorney fees. Agency Opposition at 5 ( 16). 6. In its reply to the agency's opposition, the protester amended its request to seek a total of $38,047.09. This amount consists of attorney fees of $32,345--reduced from the earlier- requested $38,085 to reflect the elimination of costs relating to ----------- FOOTNOTE BEGINS --------- [foot #] 1 The protest was filed by DPSC Software, Inc. and Distributed Planning Systems Corp.--two sister companies. DPSC, not Distributed Planning, had submitted the proposal in the underlying procurement. Distributed Planning was eliminated as a party to the protest. Memorandum of Conference (Mar. 3, 1993). ----------- FOOTNOTE ENDS ----------- efforts of filing and pursuing a subsequent protest at the end of March and in April; $67.50 of expenses; $3,360 for air fare relating to the suspension hearing in the initial protest; $354.59 for travel-related expenses; and $1,920 in attorney fees for preparation of the reply. DPSC Reply (Aug. 10, 1993) at 12 ( 9). 7. In support of the attorney fees, the protester's attorney has submitted a sworn declaration that he charged the protester his hourly rate for then existing clients. DPSC Reply at 25 ( 3). The record contains a daily breakdown of counsel's hours expended for November 1992 through March 1993. Agency Opposition, Exhibit 1. There is no daily hourly breakdown accompanying the itemization for October 1992. Id.; Protester's Motion. The itemizations and hourly breakdowns reveal that, of the requested $32,345, counsel expended $13,900 of effort in filing and pursuing the protests prior to the initial settlement and dismissal without prejudice; the balance, $18,445 was expended in other matters, such as dealing with the agency regarding the status of evaluations, a subsequent amendment to the solicitation, and matters relating to best and final offers, and in reinstating and amending the initial protest. Protester's Motion: Agency Opposition, Exhibit 1. 8. The expenses of $67.50, incurred in the first protest, relate to Federal Express charges for sending material to the Board, the agency, and the intervenor. DPSC Motion at 10. The amount, supported in the record, is reasonable. 9. Distributed Planning, and not DPSC, is the payor on checks dated November 25, 1992, and February 22, 1993, payable to retained counsel covering bills for work under the first two protests. Without objection by the agency, Distributed Planning was a protester in the first two protests, Findings 1, 2. DPSC has or will reimburse Distributed Planning for the amounts at issue. DPSC Reply at 19-20 (Declaration ( 4)). 10. In support of the request for reimbursement of the round-trip tickets, the sworn declaration of the protester's president demonstrates that the charges incurred were cost effective and reasonable. DPSC Reply at 19-20 (Declaration ( 3-4)). 11. The protester seeks reimbursement of $354.59 which it characterizes as travel expenses relating to the suspension hearing in the initial protest. This amount consists of reasonable charges for hotel rooms ($283.98), two phone calls ($1.50), cab fares ($52), and food ($17.11). Agency Opposition, Exhibit B. 12. The protester seeks reimbursement of $1,920--costs for retained counsel to reply to the agency opposition. The record contains no factual support which demonstrates that the protester has incurred such a cost. E.g., DPSC Reply at 21 (Declaration ( 10)). Moreover, the protester devotes much of the reply to discussing its entitlement to all requested attorney fees as relating to pursuing the underlying protests. The Board rejects the protester's position. Finding 7. Discussion The protester seeks to recover $38,047.09. Before authorizing payment of costs of filing and pursuing a protest, the Board must find an agency violation of statute or regulation, and determine that the costs are reasonable and appropriate. Sterling Federal Systems, Inc. v. Goldin, No. 92-1552 (Fed. Cir. Jan. 28, 1994); 40 U.S.C. 759(f)(5)(C) (1988). This protester significantly prevailed in demonstrating that prior to the initial award the agency did not evaluate properly the protester's proposal; the agency agreed to evaluate the protester's proposal in reconsidering the award determination. Finding 3. While the initial two protests were dismissed without prejudice based upon the agreement of the parties, Findings 1, 2, and the parties left open the opportunity to reinstate the protests, the protester has not demonstrated why it is reasonable for it to be reimbursed for its costs of filing and pursuing the second and third protests. Prior to the time the successive protests were filed, the agency had already agreed to undertake an evaluation of the protester's initial proposal. The protester has not demonstrated the continued significance of the evaluation of the initial proposal in light of the subsequent amendment to the solicitation and request for best and final offers. With the settlement of the first protest, the protester had "prevailed" on the sole issue of protest it pursued to resolution. Finding 3. The Board concludes that the protester incurred reasonable and reimbursable costs in the amount of $17,682.09. This figure represents $13,900 in attorney fees, $67.50 in Federal Express charges, $3,360 in air fare, and $354.59 in travel expenses. Findings 7-11. Decision The Board GRANTS IN PART the motion for recovery of costs of filing and pursuing the protest. The Board awards the protester $17,682.09, an amount to be paid in accordance with statute. 40 U.S.C. 759(f)(5)(C) (1988); 31 U.S.C. 1304 (1988). The Board does not award $20,365, the remainder of the protester-requested amount. _________________________ JOSEPH A. VERGILIO Board Judge We concur: _________________________ _________________________ ANTHONY S. BORWICK CATHERINE B. HYATT Board Judge Board Judge