GRANTED IN PART: June 8, 1994 GSBCA 12769-C(12703-P) LOGICON, INC., Protester, v. DEPARTMENT OF THE AIR FORCE, Respondent. Michael A. Gordon and Donald C. Holmes of Holmes, Schwartz & Gordon, Rockville, MD; and E. Ben Mitchell and D. Michael Bennett of Logicon, Inc., Arlington, VA, counsel for Protester. Clarence D. Long III, Joseph Goldstein, Susan McNeill, Maj. Jeffrey Titrud, Capt. Michael P. Chiffolo, Lt. Col. Rod A. Wolthoff, and Capt. C. Wesley Bridges II, Office of the General Counsel, Department of the Air Force, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), NEILL, and GOODMAN. GOODMAN, Board Judge. Background This protest was filed by Logicon, Inc. (Logicon or protester), on December 14, 1993, alleging that respondent, the Department of the Air Force (Air Force or respondent), improperly rejected Logicon's bid for Integrated Computer-Aided Software Engineering (I-CASE), and improperly awarded the contract to intervenor, Lockheed Missiles & Space Company (Lockheed). After the protest was filed, respondent issued a stop work order and an order terminating Lockheed's contract for the convenience of the Government. Concurrent with the issuance of the stop work order and termination of the contract for convenience, respondent filed a motion to dismiss the protest as moot, which was opposed by protester. In its motion and addendum to dismiss the protest as moot, respondent expressed its intent to reopen negotiations and request additional best and final offers from offerors, including Logicon. The Board sought clarification from respondent, and in response to the Board's inquiry, respondent withdrew its objection to granting the protest and its motion to dismiss as moot, stating: After having more fully reviewed the discovery produced to the Air Force on 10 January by Lockheed, the Air Force withdraws objections to granting of the protest and withdraws its previous urging that Lockheed be included in the recompetition or reevaluation. We dismissed the protest in a decision dated January 27, 1994. Logicon, Inc. v. Department of the Air Force, GSBCA 12703- P, 94-2 BCA 26,667, 1994 BPD 15. In so doing, we noted our rationale for dismissing the protest rather than granting it: Respondent's responses to the Board's requests for clarification and withdrawal of its objection to granting the protest are de facto admissions that Lockheed failed to meet the solicitation's requirements for availability of minimum mandatory features and submitted a noncompliant proposal, and that respondent improperly awarded the contract to Lockheed. Thus, respondent in essence concedes that its evaluation of Lockheed's proposal and award to Lockheed violated the Federal Acquisition Regulation (FAR), 48 CFR 15.608(e) (1993), in that respondent admits that it awarded the contract on the basis of different evaluation factors from those specified in the solicitation. Such allegations of noncompliance comprised the basis for the two counts of the original protest and the third count added by amendment on January 7, 1994. The circumstances present here leave us in a situation that does not differ in substance from a settlement between protester and respondent. There are two reasons for this: (1) respondent has admitted that it awarded the contract to a noncompliant offeror and terminated that contract, thus giving protester a part of the relief it seeks, and (2) as explained in our discussion below, in which we deny protester's request for summary relief, the relief that protester has already received from respondent is all that protester can possibly receive in this case. . . . As we now lack any controversy to decide, the appropriate step is for us to dismiss the protest as, in effect, settled. On February 25, 1994, protester filed its motion for payment of protest costs pursuant to Rule 35 in the amount of $169,727.43. This amount represents $146,650.03 for outside attorney fees to Holmes, Schwartz & Gordon; $6,979.36 for outside attorney fees to Ervin, Cohen & Jessup; and $16,098.04 for the cost of an expert advisor to Logicon's counsel. On April 11, 1994, respondent filed a Motion to Oppose Cost Petition of Logicon, alleging that: (1) Logicon was not a prevailing party, (2) if Logicon was the prevailing party, it should still not receive all its costs, and (3) the fees of Logicon's expert were excessive. On April 14, 1994, protester and respondent filed a joint Stipulation of Settlement, which reads as follows: 1. Protester . . . and Respondent . . . have stipulated that Logicon was a "prevailing party" in . . . GSBCA No. 12703-P, and that accordingly, . . . Logicon is entitled to recover its attorney fees and costs. 2. The parties also have discussed their positions on various amounts claimed that are reflected in the pleadings filed with the Board in this case and have agreed to settle Logicon's claim for attorney fees and costs of $169,727.43 for a total of $149,000 to be paid to Logicon from the indefinite judgment fund. 3. Based on the foregoing, the parties respectfully request that the Board approve this settlement as a fair and reasonable compromise of the above dispute. On April 12, 1994, Logicon was awarded the contract which was the subject of the procurement. Discussion 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. Under the statute, it is the Board which is authorized to award costs and exercise discretion to determine both if a party is "appropriate" and entitled to payment of costs from the judgment fund and if the amount requested is "reasonable." 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. In dismissing the protest, we found that respondent had made de facto admissions that Lockheed failed to meet the solicitation's requirements for availability of minimum mandatory ----------- FOOTNOTE BEGINS --------- [foot #] 1 58 Fed. Reg. 69,264 (1993) (to be codified at 48 CFR 6101.35. ----------- FOOTNOTE ENDS ----------- features and submitted a noncompliant proposal, and that respondent improperly awarded the contract to Lockheed. Thus, respondent in essence conceded that its evaluation of Lockheed's proposal and award to Lockheed violated the Federal Acquisition Regulation (FAR), 48 CFR 15.608(e) (1993), in that respondent admits that it awarded the contract on the basis of different evaluation factors from those specified in the solicitation. Such allegations of noncompliance comprised the basis for the two counts of the original protest and one count added by amendment. Respondent terminated Lockheed's contract and announced its intent to reopen the competition. Protester was ultimately awarded the contract. Protester did succeed on significant issues and achieved the benefit it sought. Accordingly, we find that protester is an appropriate interested party entitled to recover its costs pursuant to Rule 35 and 40 U.S.C. 759(f)(5)(C) (1988). We have independently examined the documentation filed by Logicon in support of its motion and find reasonable its request for costs of $149,000. Accordingly, we award that amount for outside attorney fees and costs. Because Logicon has limited its request to an amount which is less than the total of attorney fees and costs incurred, we need not decide whether the costs of an expert consultant are reimbursable. See Sterling Federal Systems, Inc. v. Goldin, 16 F.3d 1177 (Fed. Cir. 1994). Decision Protester's motion is GRANTED IN PART. Protester is awarded $149,000 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: ___________________________ ___________________________ STEPHEN M. DANIELS EDWIN B. NEILL Board Judge Board Judge