______________________________________________ PROTESTER'S APPLICATION FOR PARTIAL AWARD OF PROTEST COSTS DENIED: July 1, 1996 ______________________________________________ GSBCA 12799-C(12705-P) COMMUNICATION NETWORK SYSTEMS, INC., Applicant, v. DEPARTMENT OF COMMERCE, Respondent. Alan M. Grayson and Hugh J. Hurwitz of Law Offices of Alan M. Grayson, McLean, VA, counsel for Applicant. Jerry A. Walz, Mark Langstein, Lisa J. Obayashi, and F. Jefferson Hughes, Office of General Counsel, Department of Commerce, Washington, DC, counsel for Respondent. Before Board Judges, DEVINE, BORWICK, and WILLIAMS. WILLIAMS, Board Judge. Background In the underlying protest, Communication Network Systems, Inc. (CNS) challenged the award of three contracts by the Department of Commerce (DOC) to System Technology Associates, Inc. (STA). CNS successfully claimed that DOC failed to consider an appendix which contained CNS' corporate policies and procedures, and that DOC improperly disclosed to STA the government estimate of labor hours. Communication Network Systems, Inc. v. Department of Commerce, GSBCA 12705-P(12628-P), 94-2 BCA 26,843, at 133,555, 1994 BPD 63, at 25. On March 28, 1994, CNS filed a motion to recover the costs of pursuing its protest in the amount of $35,533.38. On April 26, 1994, CNS amended its application for costs seeking an additional $12,890.32, consisting of $12,590.32 for in-house personnel costs and $300.00 for attorney fees relating to the 2 preparation of the application for costs. On February 7, 1995, CNS filed a request for a partial ruling on its application for costs, seeking $35,202.58 in undisputed costs. DOC did not object. On March 28, 1995, the Board granted CNS' unopposed partial ruling on its application for protest costs and awarded CNS $35,202.58. Communication Network Systems, Inc. v. Department of Commerce, GSBCA 12799-C(12705-P), 95-1 BCA 27,556, 1995 BPD 80. The Board also reopened the record to allow the parties to supplement the record as they deemed appropriate on the issue of in-house costs consistent with Sterling Federal Systems, Inc. v. Goldin, 16 F.3d 1177, 1188 (Fed. Cir. 1994) (holding that West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83 (1991), does not preclude this Board from awarding in-house personnel and expert costs), remanding Sterling Federal Systems, Inc. v. National Aeronautics and Space Administration, GSBCA 10000- C(9835-P), 92-3 BCA 25,118, 1992 BPD 141. Discussion Under the Brooks Act, the Board may award protest costs to an appropriate interested party. 40 U.S.C. 759(f)(5)(C) (1988). This statute "implies that a prevailing protester should be made whole from pursuing its protest so long as the fees and costs it seeks to recover are reasonable." United States v. Compusearch Software Systems, 936 F.2d 564, 566 (Fed. Cir. 1991). This Board has held that a prevailing interested party should receive reimbursement for employee salaries in appropriate circumstances where such fees are reasonable. Sterling Federal Systems, Inc. v. National Aeronautics and Space Administration, GSBCA 10000-C-REM (9835-P), 95-1 BCA 27,575, 1995 BPD 65.[foot #] 1 ----------- FOOTNOTE BEGINS --------- [foot #] 1 In resolving the Sterling case on remand, the ________ Board concluded that the "prior practice of allowing reimbursement of reasonable . . . employee salaries and expenses, in appropriate circumstances, was a wise policy which should be continued." Sterling Federal Systems, Inc. v. National _________________________________________________ Aeronautics and Space Administration, GSBCA 10000-C-REM (9835-P), ____________________________________ 95-1 BCA 27,575, at 137,424, 1995 BPD 65, at 9. Two members of the panel in the instant case, Judges Devine and Williams, disagree with this ruling in Sterling and would not continue the ________ prior practice of awarding in-house personnel costs. Judge Williams would nonetheless follow the Board's Sterling precedent ________ and award in-house costs if reasonable and properly documented (SMS Data Products Group, Inc. v. Defense Logistics Agency, ----------- FOOTNOTE BEGINS --------- GSBCA 13475-C(13413-P), 1996 BPD 36, at 2 (Mar. 5, 1996)); Judge Devine would not. ----------- FOOTNOTE ENDS ----------- 3 In the present case, CNS seeks reimbursement for the time spent by its president and its manager of contracts pursuing the underlying protest. In an attachment to the declaration of CNS' president, CNS broke down the claimed costs as follows: 1. Interrogatories and Production of Documents Respondent's Request dated October 19, 1993 CNS response dated December 23, 1993 Research, compilation, review, and submission of response during November 22, 1993 through December 23, 1993. Total Hours Expended Paul Vibhandik 87 hours @ $33.65/hr $2,927.55 Lloyd Craft 39 hours @ $13.89/hr 541.71 2. Reviews of protest issues and documents, research, consultation, correspondence, copying of supporting documents, proposals, etc. September 23, 1993 through March 25, 1994 Total Hours Expended Paul Vibhandik 192 hours @ $33.65/hr $6,460.80 Lloyd Craft 96 hours @ $13.89/hr 1,333.44 3. Teleconference, FAX transmittal preparation and review, document shipments, and meetings with attorneys including pre-trial scheduling conference and preparation time. September 23, 1993 through March 25, 1994. Total Hours Expended Paul Vibhandik 32 hours @ $33.65/hr $1,076.80 Lloyd Craft 18 hours @ $13,89/hr 250.02 Declaration of Paul Vibhandik (Feb. 5, 1994). CNS did not submit time sheets or other contemporaneous documents supporting these hours.[foot #] 2 This one- ----------- FOOTNOTE BEGINS --------- [foot #] 2 On May 10, 1996, the Board inquired of the applicant as to whether any supporting documentation for the claimed in-house costs, such as time sheets or other contemporaneous documentation, exists. On June 25, 1996, applicant's counsel orally advised the Board that no such documentation exists. ----------- FOOTNOTE ENDS ----------- 4 page attachment to the declaration was the sole breakdown of in- house costs. CNS argues that the costs incurred are reasonable under the circumstances surrounding this protest. CNS claims that its employees spent more time preparing for a protest than might normally be spent due to its inexperience in filing protests. Protester's Supplement to the Record at 2. CNS also claims that it attempted to limit overall costs by performing many of the tasks, particularly discovery, without the aid of outside consultants or attorneys. Id. DOC argues that the time spent on the protest by CNS' employees is excessive. Respondent's Supplement to the Record. DOC claims that neither CNS' president nor its manager of contracts had access to protected material, and therefore could not have been involved in the protest to the extent claimed. DOC also claims that the type of activities undertaken by the president and manager of contracts -- photocopying documents, facsimile preparation and shipping documents -- did not require the expertise and skill of high-level and highly-compensated employees, and that a lower-level employee with a significantly lower salary should have performed these tasks. Id. DOC requests that the Board reduce the hours attributed to CNS' president to the number claimed by its manager of contracts. Although the Government is not contesting the remaining costs, this Board must "independently determine that reimbursement is appropriate." Sterling Federal Systems, Inc. v. National Aeronautics and Space Administration, GSBCA 10000-C- REM(9835-P), 95-1 BCA 27,575, at 137,425, 1995 BPD 65, at 10; SMS Data Products Group, Inc. v. Department of the Treasury, 93-1 BCA 25,427, at 126,645, 1992 BPD 238, at 3 (only reasonable costs supported by sufficient documentation can be awarded). Rule 35 of the GSBCA Rules of Procedure establishes the requirements for an application for costs. Under Rule 35(c)(3), an application for costs shall: [b]e accompanied by an exhibit fully documenting any fees or expenses being sought . . . . The date and a description of all services rendered and costs incurred shall be submitted for each . . . individual whose services are covered by the application, showing the hours spent in connection with the proceeding by each individual, a description of the particular services performed by specific date, the rate at which each fee has been computed, any expenses for which reimbursement is sought, and the total amount paid or payable by the applicant on account of the sought-after costs . . . . The Board may require the applicant to 5 provide vouchers, receipts or other substantiation for any costs claimed . . . ." 48 CFR 6101.35 (1995) (emphasis added). In this case, CNS has only submitted a summary of hours spent by CNS's employees on the protest over a several-month period. The summary of hours does not identify the specific date on which a given task was performed as required by Rule 35. Nor are the tasks described with sufficient specificity. The only support for CNS's claim for in-house costs is the declaration of CNS's president which generally describes work done over periods of between four to six months and his post hoc certification. This generalized statement does not enable us to determine whether the claimed in-house costs are reasonable, and such costs are, therefore, denied. Sytel, Inc. v. Department of Health and Human Services, GSBCA 12901-C(12827-P), 96-1 BCA 28,124, at 140,396, 1995 BPD 224, at 3. Decision For the reasons stated above, applicant's request for in- house costs totaling $12,590.32 is DENIED. Attorney's fees in the amount of $300 for the preparation of this cost motion are also DENIED. Resolution of these matters completes the Board's consideration of this cost application. _____________________________ MARY ELLEN COSTER WILLIAMS Board Judge We concur: ___________________________ ______________________________ DONALD W. DEVINE ANTHONY S. BORWICK Board Judge Board Judge