__________________________________ MOTION FOR PROTEST COSTS GRANTED: November 30, 1993 __________________________________ GSBCA 12635-C(12536-P) SYSTEMS RESOURCES, INC., Protester, v. DEPARTMENT OF THE NAVY, Respondent. Gerard F. Doyle, Scott A. Ford, Ron R. Hutchinson, and Alexander T. Bakos of Doyle & Bachman, Washington, DC, counsel for Protester. Charles M. Stinger and Jill A. Eggleston, Defense Finance and Accounting Service, Kansas City, MO, counsel for Respondent. Before Board Judges LaBELLA, NEILL, and DeGRAFF. LaBELLA, Board Judge. Systems Resources, Inc. (protester) has filed for protest costs incurred pursuing its protest of the proposed award of a contract by the Department of the Navy, Marine Corps Support Activity, to Defense Priority Equipment Reconditioning Corporation (DPER) pursuant to 40 U.S.C. 759(f)(5)(C) (1988). The Government does not object to protester's status as an appropriate interested party entitled to recover its protest costs or to the payment of such costs. The Government does argue that the attorney fees claimed by Systems Resources are excessive and duplicative. Systems Resources has requested $31,806.25 in attorney fees and $1,767.32 in disbursements for courier services, telephone charges, and photocopying. We find that the fees and disbursements are reasonable and grant the motion for payment in the amount of $33,573.57. Background The Board granted protester's Motion for Summary Relief on September 13, 1993, and ruled that the Government did not comply with the statutory and regulatory requirement that all significant factors to be considered when evaluating proposals be disclosed to offerors. The events leading up to our decision that the Government did not comply with statutory and regulatory requirements are articulated in the Board's decision in Systems Resources, Inc. v. Department of the Navy, GSBCA 12536-P, 1993 BPD 253 (Sept. 13, 1993). We briefly summarize those events below. The Government issued solicitation no. M67443-92-R-002 on June 15, 1992, for procurement by negotiation of maintenance support services for automatic data processing equipment. The solicitation required offerors to submit separate technical and cost proposals, and stated that these proposals would be evaluated separately. The technical proposals were evaluated on an Acceptable/Unacceptable basis. The cost proposals were evaluated on the basis of a thirty-six month life cycle to determine the lowest price offered. When evaluating the proposals, the Government determined that DPER's and protester's proposals were technically acceptable, but decided that DPER's proposal exceeded the Government's needs in some areas. The Government assigned a dollar value to those aspects of DPER's proposal which exceeded the Government's needs and adjusted DPER's cost proposal to reflect what it determined to be a cost savings stemming from the unsolicited enhancements in DPER's proposal. When this cost adjustment was made, DPER became the low evaluated offeror and was proposed as the awardee of the contract. Systems Resources protested the proposed award and filed a Motion for Summary Relief. The Board found that the Government did not comply with the statutory and regulatory mandate that all significant factors to be considered when evaluating competitive proposals and the relative importance of these factors be disclosed to offerors. While the Government argued that it intended to conduct a best value procurement, it never informed offerors that it would look beyond the articulated rating system to determine whether, and by how much, a technical proposal exceeded the Government's needs. It also gave no indication that it would apply a cost savings adjustment for those aspects of offerors' technical proposals which exceeded the Government's needs. The solicitation indicated there would be no such tradeoff, as there was to be no relationship between cost and technical considerations. The Board stated that the Government was not precluded from conducting a best value procurement, but must put offerors on notice of its intentions. The Government was required to revise its solicitation and to obtain revised proposals from offerors if it intended to proceed with a best value procurement. Discussion The Board may award an appropriate interested party protest costs when the Board determines the agency has violated a statute, regulation, or the conditions of a delegation of procurement authority. 40 U.S.C. 759(f)(5)(B), (C) (1988). The Board has interpreted an "appropriate interested party" to mean a prevailing party, i.e., "one that has succeeded on any significant issue in the litigation that achieves some of the benefit it sought in bringing suit." Bedford Computer Corporation, GSBCA 9837-C (9742-P), 89-2 BCA 21,827, at 109,811, 1989 BPD 131, at 3. A protester crosses the threshold of prevailing party status if it can point to a resolution of the dispute which materially alters the parties' legal relationship in a manner which Congress sought to promote in the fee statute. Id. Based on protester's success on its Motion for Summary Relief, we find that it is a prevailing party entitled to an award of protest costs. While the Government does not dispute that Systems Resources is an appropriate interested party for purposes of an award of protest costs, it does dispute the amount of attorney fees to be awarded. The Government avers that Systems Resources produced an inordinate amount of paper during the course of the protest. It also argues that the 42.50 hours spent preparing interrogatories and requests for admissions, the 36.25 hours spent preparing the Motion for Summary Relief, and the thirty-six hours spent on deposition questions were excessive. Beyond these conclusory arguments, the Government has not articulated any specific objections concerning the time expended by Systems Resources. An examination of the time sheets provided by Systems Resources reveals that several tasks were performed during the time frames in question. Thus, the Government's contention that the entire amount of time listed was spent on one activity is incorrect. Furthermore, because of the short time frame for resolving protests under the Brooks Act, protester's counsel may be justified in making an intensive effort developing and preparing any dispositive motions and its case in chief at the start of the protest process. Computer Data Systems, Inc., GSBCA 9369-C (9217-P), 88-3 BCA 21,111, at 106,571, 1988 BPD 183, at 2. Here, protester did so with the Board's approval. "Of necessity, the Board cannot always accord the parties the luxury of awaiting its decision on potentially dispositive motions before proceeding with discovery and trial preparation." RMTC/Microwave, GSBCA 10580-C(10060-P), 92-1 BCA 24,530, at 122,402, 1991 BPD 274, at 5. Our review of the submission persuades us that the work performed and the time spent by counsel was reasonable. The Government has not disputed the amount of protester's disbursements. Our review of protester's documentation of the disbursements persuades us that the disbursement amounts were reasonable and adequately supported. Decision The Motion for Protest Costs is GRANTED in the amount of $33,573.57. 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). __________________________ VINCENT A. LaBELLA Board Judge We concur: ____________________________ __________________________ EDWIN B. NEILL MARTHA H. DeGRAFF Board Judge Board Judge