GRANTED IN PART: November 12, 1993 GSBCA 12659-C(12490-P) METROPOLITAN TECHNICAL SERVICES, INC., Protester, v. DEFENSE INFORMATION SYSTEMS AGENCY, Respondent. Elizabeth N. Forgotson of Bethesda, MD; and Jon E. Shields of Johnson & Roche, McLean, VA, counsel for Protester. Roger B. Sabin, Eileen P. Manley, and Capt. Daniel M. Kline, Office of General Counsel, Defense Information Systems Agency, Arlington, VA, counsel for Respondent. Before Board Judges DEVINE, NEILL, and GOODMAN. GOODMAN, Board Judge. This protest was filed by Metropolitan Technical Services, Inc. (MTS or protester) on July 8, 1993, alleging that respondent, the Defense Information Systems Agency (DISA or respondent), improperly rejected MTS's proposal for computer equipment to be supplied to respondent. After discovery and negotiations, on September 13, 1993, the parties met at the Board and filed a stipulation of fact signed by respondent and protester. By this stipulation, the parties entered into the record the depositions of two government witnesses and the following factual determination: Respondent's determination that protester's proposal, submitted in response to solicitation DCA100-93-R-0042, was technically unacceptable was not supported by substantial evidence. The parties jointly requested that the Board close the record in this matter on September 13, 1993. By decision dated September 30, 1993, the Board granted the protest. Metropolitan Technical Services, Inc. v. Defense Information Systems Agency, GSBCA 12490-P (Sept. 30, 1993). Under Board Rule 35[foot #] 1 and 40 U.S.C. 759(f)(5)(C) (1988), the Board may award protest costs, including reasonable attorney fees, to an "appropriate interested party" when an agency has violated a statute, regulation, or the conditions of a delegation of procurement authority. 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. MTS is an appropriate interested party entitled to recover its costs pursuant to Rule 35 and 40 U.S.C. 759(f)(5)(C) (1988). On October 27, 1993, protester filed its motion for payment of protest costs pursuant to Rule 35 in the amount of $37,332.21. On November 2, 1993, protester filed an amendment to its motion for costs correcting several clerical errors and increasing the total amount requested to $37,369.42. This amount is composed of $34,066.44 for outside attorney fees and taxable costs, $963.50 for the cost of the deposition transcripts, and $2,339.48 for expert witness fees and expenses. Respondent objects to the payment of fees and expenses incurred by protester for retaining an expert witness. Respondent's Reply to Protester's Motion at 1-2. In its motion for costs, with regard to expert witness fees and expenses, protester states: Protester has included the charges of [its] expert witness . . . in its fee petition. Protester respectfully requests that the Board consider reimbursement of these fees should it revisit its holding in Sterling Federal Systems, Inc. v. National Aeronautics and Space Administration, GSBCA 10000- C(9835-P), 92-3 BCA 25,118, 1992 BPD 141, during the pendency of this cost case. In its amendment to its motion for costs, protester notes that the Sterling Federal decision has been appealed to the Court of Appeals for the Federal Circuit and states that "[p]rotester accepts that Sterling Federal remains binding precedent unless the Court of Appeals overrules or revises it. It asks only that the Board consider award of [the expert's] fees if the Court of Appeals overturns Sterling Federal during the pendency of its cost case." Protester's Amendment to Motion for Costs at 5. ----------- FOOTNOTE BEGINS --------- [foot #] 1 48 CFR 6101.35 (1992). ----------- FOOTNOTE ENDS ----------- As of this date, no decision has been rendered in the Sterling appeal. We, therefore, follow our decision in Sterling and deny protester's request for $2,339.48 for the fees and expenses incurred by protester for retaining its expert witness. We have independently examined the documentation filed by MTS in support of its motion and otherwise find its request for costs reasonable. Accordingly, we award $34,066.44 for outside attorney fees and taxable costs and $963.50 for the cost of the deposition transcripts, for a total of $35,029.94. Decision Protester's motion is GRANTED IN PART. Protester is awarded $35,029.94 to be paid, without interest, in accordance with statute, 31 U.S.C. 1304 (1988). 40 U.S.C. 759(f)(5)(C) (1988). ___________________________ ALLAN H. GOODMAN Board Judge We concur: ___________________________ ___________________________ DONALD W. DEVINE EDWIN B. NEILL Board Judge Board Judge