_____________________________________________ PROTEST COSTS DENIED: March 8, 1996 _______________________________________________ GSBCA 12825-C(12794-P) WESTINGHOUSE ELECTRIC CORPORATION, Applicant, v. DEPARTMENT OF TRANSPORTATION, Respondent. Stanley R. Soya, Paul F. Khoury, James J. Gildea, and David A. Vogel of Wiley, Rein & Fielding, Washington, DC, counsel for Applicant. ` John R. McCaw, Sybil Baird Horowitz, George P. Kinsey, and Richard J. McCarthy, Office of Chief Counsel, Federal Aviation Administration, Department of Transportation, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), PARKER, and VERGILIO. PARKER, Board Judge. Westinghouse Electric Corporation (WEC) moves for reimbursement of costs it incurred in filing and pursuing a protest against the Federal Aviation Administration (FAA). For the reasons discussed below, we deny WEC s motion. Background In January 1994, the FAA published a notice in the Commerce Business Daily (CBD) announcing its intention to award a sole- source contract to Denro, Inc. to remove, refurbish and reconfigure certain communications switches. WEC filed an agency protest, arguing that the FAA could fulfill its requirements in a more cost effective manner by purchasing new switches -- for example, from WEC s existing requirements contract to provide new switches to the FAA. The FAA denied WEC s agency protest but revised the CBD notice to indicate that the sole-source refurbishment procurement would be made only if the FAA has no voice switch requirements type contracts in effect to fulfill the FAA s needs. Complaint 25. This statement was a reference to WEC s existing contract, a one-year requirements contract due to expire on July 20, 1994, with nine one-year options. WEC, not certain that its contract would still be in effect at the time the FAA wanted to upgrade its switches, was not satisfied with the change to the CBD notice. Accordingly, on March 24, 1994, WEC protested the CBD notice to the Board, arguing that WEC should be permitted to compete for the requirements, whether or not it had a contract currently in effect. On March 31, 1994, the FAA asked the Board to dismiss the protest based upon its intent to cancel the proposed acquisition. By agreement of the parties, the Board dismissed WEC s protest without prejudice. Westinghouse Electric Corp. v. Department of Transportation, GSBCA 12794-P, 1994 BPD 72 (Apr. 1, 1994). Ten days after the FAA published another CBD notice which announced cancellation of the procurement, the dismissal converted to one with prejudice. The FAA maintains that it canceled the procurement pending a decision whether to exercise the next year s option on WEC s existing contract, and not because the proposed procurement violated a statute or regulation. Respondent s Answer in Opposition to Protester s Motion for Costs at 2. WEC has not attempted to pursue the merits further in connection with this cost motion. Discussion Statute permits the Board to grant an appropriate interested party its costs of filing and pursuing a protest, including reasonable attorney fees, [w]henever the board makes . . . a determination [that a challenged agency action violates a statute or regulation or the conditions of any delegation of procurement authority]. 40 U.S.C. 759(f)(5)(C) (1988). Thus, in cases where the Board is unable to determine that a statute, regulation or delegation of procurement authority has been violated, the Board is not authorized to award costs. International Data Products Corp. v. Department of Justice, GSBCA 10403-C(10302-P), 93-2 BCA 25,606, at 127,466, 1992 BPD 328, at 5. WEC has not established that the FAA s proposed procurement violated a statute, regulation or delegation of procurement authority. Given the somewhat unusual situation, the FAA s explanation that it decided to cancel the procurement pending a decision whether to renew WEC s existing contract is just as plausible as WEC s explanation for the cancellation -- that the FAA agreed the procurement was an improper sole-source acquisition. The case was never adjudicated on the merits and WEC has failed to pursue the issue in connection with this motion. Although WEC certainly prevailed in the sense that it succeeded in getting the procurement canceled, WEC failed to establish that the cancellation was the result of a violation of statute or regulation, the statutory prerequisite to recovering attorney fees. The cases cited by WEC for the proposition that a party is entitled to cost reimbursement simply because it succeeds in obtaining a desired result are inapposite. In Integrated Systems Group, Inc. v. Department of Commerce, GSBCA 11974-C(11921-P), 94-1 BCA 26,399, 1993 BPD 230, for example, the protest was granted after the agency admitted legal error. The Board thus had a firm basis for determining that the agency had violated statute and regulation. Similarly, in Integrated Systems Group, Inc. v. Department of Energy, GSBCA 12176-C(12075-P), 93-3 BCA 25,950, 1993 BPD 96, a case cited by WEC as holding protester prevailed where agency amended solicitation in response to filing of protest, even though Board had not resolved the merits of the protest, WEC fails to mention that the case was settled after the presiding judge made a determination during an alternative dispute resolution session that the Department of Energy had violated statute and regulation. In a third case cited by WEC, General Analytics Corp. v. Department of the Army, GSBCA 11770-C(11728-P), 93-1 BCA 25,281, 1992 BPD 192, the protester alleged that the Army had awarded a contract to an offeror which lacked the necessary diagnostics and equipment to perform the contract. Although the Board dismissed the protest based upon the Army s decision to terminate the contract for default, the Board was able to conclude that the award had been made to an awardee whose proposal did not meet minimum mandatory requirements. 93-1 BCA at 125,894, 1992 BPD 192, at 2. In each of the cited cases, like all of the others in which the Board has awarded costs, the Board was able to determine in some manner, and with some certainty, that the respondent had violated a statute, regulation or the conditions of a delegation of procurement authority. Because, as discussed above, the Board is unable to make such a determination here, we lack the authority to award WEC its costs of filing and pursuing the protest. Decision WEC s motion for costs is DENIED. ________________________ ROBERT W. PARKER Board Judge We concur: ________________________ _________________________ STEPHEN M. DANIELS JOSEPH A. VERGILIO Board Judge Board Judge