________________________________________________ GRANTED IN PART: March 22, 1994 ________________________________________________ GSBCA 12622-C(12521-P, 12522-P), INTEGRATED SYSTEMS GROUP, INC., Protester, v. DEPARTMENT OF THE ARMY, Respondent. Shelton H. Skolnick, Judy D. Leishman, and Amy M. Hall of Skolnick & Leishman, P.C., counsel for Protester. Richard Couch and Jeffery I. Kessler, Army Material Command, Department of the Army, Alexandria, VA; and Michael Futch, Tobyhanna Army Depot, Tobyhanna, PA, counsel for Respondent. Before Board Judges BORWICK, HYATT, and WILLIAMS. BORWICK, Board Judge. On August 4, 1993, Integrated Systems Group, Inc. (ISG) filed protests with this Board which were docketed as GSBCA 12521-P and 12522-P are consolidated. In its protest complaint, protester alleged the Government unreasonably restricted competition by conducting a make and model only procurement, unreasonably restricted competition by adding requirements for used equipment which exceeded those of new equipment, and unreasonably stated its specifications because the specifications exceeded the Government's minimum needs. Complaint at 1. The Government issued amendments to the solicitations to delete numerous solicitation requirements challenged by the protester, and in one instance (paragraph c(6) of both amendments), modified language as requested by the protester. These amendments resolved all of protester's challenges to the solicitations except its opposition to the solicitations' make and model requirement. Respondent justified the specific make and model restriction as necessary to maintain hardware compatibility with its installed base of Teradyne software. Protester's final ground for protest -- the appropriateness of the make and model requirement of the solicitations -- was not resolved until the parties entered into a settlement agreement on September 9, 1993 (joint stipulation). In the joint stipulation, the make and model requirements were changed to equal/compatible equipment for certain items. The requirements were changed after this testimony from the Government's specification writer: JUDGE: Let me ask you this. Which platform has Teradyne certified as suitable for its software? WITNESS: There's a number of platforms for it. . . . There's Sun and there's different levels of Sun. JUDGE: All right. Are there any levels of [Sun] that are not [Reduced Instruction Set Computers] that Teradyne has benchmarked as suitable? WITNESS: I believe so. I believe like Sun Threes. . . . . . . . JUDGE: Now what I want to know is why you picked--was your specific make and model a Sun reduced instruction set make and model? WITNESS: Yes. JUDGE: All right. Why did you pick Reduced Instruction Set Computing make and model? WITNESS: Primarily because of the technology. It's-- it's a higher speed, more efficient platform. And [the] industry appeared to be going in that direction and it seems like it's going to be around for a long time. Transcript at 70-73. The Government flew in witnesses to testify at the hearing at the Government's expense. The protester timely filed its cost motion for recovery of the costs associated with filing and pursuing its protests, including attorney fees. Protester claims it is owed $7,083 in attorney fees. Respondent argues that protester is not entitled to its attorney fees because: (1) the Government did not violate a statute or regulation; and (2) the protester failed to pursue settlement opportunities, failed to prepare adequate discovery responses, and failed to prepare for the hearing, resulting in excess expense to the Government. Protester also claimed $1,608 for the cost of its in-house employees associated with the filing and pursuing its protests. Discussion Under the Brooks Act protest process, where the Board has found that an agency has violated statute, regulation, or the conditions of a delegation of procurement authority, "it may . . . declare an appropriate interested party to be entitled to the costs of . . . filing and pursuing the protest, including reasonable attorney's fees." 40 U.S.C. 759(f)(5)(C) (1988). The Board has construed this provision to permit an award of protest costs to a prevailing party, that is, one that has succeeded on any significant issue that achieves some benefit the party sought in bringing the protest. AST Research, Inc. v. Dept. of the Air Force, GSBCA 11733-C(11629-P), 93-1 BCA 25,414, 1992 BPD 251. In response to the protest, respondent amended the solicitations in order to address most of protester's allegations. Following a partial hearing on the merits, the parties negotiated a joint stipulation that addressed protester's remaining allegations. The joint stipulation gave protester virtually all of the relief it sought in its remaining allegations. It is clear, based upon the joint stipulations and subsequent amendments to the solicitations, that the agency violated statute and regulation and that protester achieved the benefit it sought in bringing the protest. Protester is a prevailing party entitled to an award of protest costs, including reasonable attorney fees. AST Research. Respondent argued that protester was not entitled to attorney fees because the Government did not violate a statute or regulation. We disagree. A party need not obtain formal relief in order to prevail; rather all it need do is to establish a clear causal relationship between the litigation and its outcome. General Analytics Corp. v. Department of the Army, GSBCA 11770- C(11728-P), 93-1 BCA 25,281 at 125,894, 1992 BPD 192 at 2, citing North American Automated Systems Co., GSBCA 7976-P, 85-3 BCA 18,281, at 91,753, 1985 BPD 39, at 2. Respondent entered into final stipulations with protester and issued amendments to the solicitations, giving protester the relief it sought in its protests. Further, the settlement and the amendments were caused by protester's participation in the litigation. Here, the stipulation and amendments were concessions by respondent that the make and model requirements were so narrowly drawn as to be unduly restrictive. Unduly restrictive make and model requirements constitute a violation of statute and regulation. See Julie Research Laboratories, Inc., GSBCA 9474-P, 88-3 BCA 20,966, 1988 BPD 133, reconsideration denied, 88-3 BCA 21,079, 1988 BPD 170. Respondent argued that protester failed to pursue settlement opportunities, failed to prepare adequate discovery responses, and failed to prepare for the hearing, resulting in excess expense to the Government, which should bar an award of costs. We disagree. The evidence is that protester dealt in good faith with respondent. Respondent made no objections, prior to hearing or at hearing, regarding protester's approach to the case, its requests for discovery, or its responses to discovery requests. All of protester's filings with the Board were timely. It is true that Government witnesses had to be flown in for the hearing at the Government's expense. However, that is a natural component of the litigation process. Further, the spur to the settlement was not information from protester that could have been the basis for settlement discussions, but revealing hearing testimony by respondent's own specification writer admitting that the make and model justification was broader than necessary to serve the stated purpose of hardware compatibility with respondent's existing Teradyne software. The agency has not demonstrated any impropriety by protester in proceeding to the hearing on the merits. Therefore, protester is entitled to reasonable and reimbursable costs of filing and pursuing the protest, including reasonable attorney fees. Attorney Fees Protester has submitted documentation listing legal fees accrued in pursuing these protests. These fees total $7,083, accumulated by protester's attorney and the attorney's clerk, while pursuing these consolidated protests and preparing and defending the cost motion. The attorney's hourly rate was $150 for 26.1 hours, while the attorney's clerk's rate was $80 for 39.6 hours. We find these amounts to be reasonable and reimbursable, and award protester $7,083. In-House Employee Costs Protester claims $1,608 for the labor costs of its president, vice president and one in-house employee incurred as a result of filing and pursuing the protest. We reopen the record on this issue and request additional submissions from the parties, for the following reasons. Recently, our appellate authority held in Sterling Federal Systems, Inc. v. Goldin, No. 92-1552 (Fed. Cir. Jan. 28, 1994), that the word "costs" as used in the Competition in Contracting Act (CICA) is not limited to those costs listed in 28 U.S.C. 1920 (1988). It also noted that CICA does not expressly require the Board to award employee salaries as costs of filing and pursuing the protest. Id. The Court stated: [We] permit the GSBCA to decide in the first instance which if any such expert or employee costs should be allowed. In this regard, the GSBCA, in determining the allowability of particular costs, should, as it has done in the past, analyze and weigh the relevant factors, including the reasonableness and relevance of such costs to 'filing and pursuing the protest,' the extent to which such costs have been and are awarded by agencies and courts under other costs-shifting statutes, the promotion of efficiency in the procurement process, and the like. Id., slip op. at 21. The record before us was developed before the court issued its decision in Sterling. Thus the parties have not addressed the factors quoted above. We reopen the record to permit the parties to do so. An analysis of which employee costs (if any) are awarded by other agencies and courts under other cost- shifting statutes would be particularly helpful. To enable us to determine the reasonableness and relevancy of such costs, protester should submit evidence which shows how it calculated the employees' hourly rates, and the relevancy of the employees' work to the filing and pursuit of the protest. Rule 35(c)(3).[foot #] 1 The parties have thirty calendar days from the date of this decision to supplement the record with the additional material. Decision Protester's cost motion is GRANTED IN PART. We award protester $7,083 for its attorney fees. We reopen the record to allow submission of supplemental material regarding the matter of protester's in-house employee costs as stated above. ______________________________ ANTHONY S. BORWICK Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 1 58 Fed. Reg. 69246, 69264 (Dec. 30, 1993). ----------- FOOTNOTE ENDS ----------- We concur: ___________________________ CATHERINE B. HYATT Board Judge ___________________________ MARY ELLEN COSTER WILLIAMS Board Judge