GRANTED IN PART: April 5, 1995 GSBCA 12896-C(12852-P) FIRST IMAGE MANAGEMENT COMPANY, Protester, v. DEPARTMENT OF JUSTICE, Respondent. Joseph J. Petrillo and Jessica C. Abrahams of Petrillo and Associates, Washington, DC, counsel for Protester. Michael J. Coster, Douglas S. Wood, and Robert J. Brown, Office of General Counsel, Immigration and Naturalization Service, Department of Justice, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), PARKER, and HYATT. DANIELS, Board Judge. First Image Management Company successfully protested the award of a contract for records management services by the Department of Justice's Immigration and Naturalization Service (INS). The protest was dismissed pursuant to a settlement agreement in which INS admitted that it had failed to conduct discussions with offerors in accordance with requirements of statute and regulation, and also agreed to terminate the awarded contract, clarify provisions of the solicitation, conduct discussions, and ultimately make a proper award. First Image Management Co. v. Department of Justice, GSBCA 12852-P, 1994 BPD 112 (June 7, 1994). Pursuant to 40 U.S.C. 759(f)(5)(C)(i) (1988) and Board Rule 35, First Image now seeks an award of the costs it incurred in filing and pursuing the protest. First Image asks us to grant it a total of $32,967.43 -- $18,935.43 in attorney fees and disbursements, $9,976 in consultant fees, and $4,056 in "management fees." The last category is said to consist of direct labor costs, associated indirect fringe benefit costs, and travel costs incurred by First Management itself. INS does not contest that First Image was a prevailing party in the protest, and is consequently entitled to an award of costs. The agency questions the reasonableness of First Image's claim, however, in light of three facts: (a) First Image did not file the protest until after it knew that settlement discussions were in process between INS and another firm which had protested the same award, Applied Technology Associates, Inc.; (b) First Image's protest was before the Board for only two days before a settlement was reached; and (c) Applied Technology, whose protest was pending for two weeks before the settlement was reached, claimed only $18,819.26 in protest costs (some of which were actually devoted to pursuit of a related protest to the Small Business Administration). In response, First Image maintains that: (a) the existence of settlement discussions is no guarantee that settlement will occur; (b) the bulk of the costs were incurred in an extremely thorough analysis of the wisdom of filing a protest and in preparing the complaint; and (c) First Image's protest was in large measure different from Applied Technology's; it was far more detailed and pertained specifically to First Image's proposal. Discussion First Image is an appropriate interested party to be awarded protest costs under the Brooks Automatic Data Processing Act, 40 U.S.C. 759(f)(5)(C)(i) (1988). Through its protest, First Image demonstrated (via an INS admission) an agency violation of statute and regulation in the conduct of the procurement, and also secured the benefit it sought in bringing the case. The fact that First Image prevailed through settlement rather than Board decision is immaterial to our conclusion as to entitlement. IMS Services, Inc. v. Department of the Navy, GSBCA 12922-C(12830-P), 94-3 BCA 27,271, 1994 BPD 204, and cases cited therein. We agree with First Image that the existence of settlement discussions on a protest of a particular procurement should not be considered a bar to a firm's filing its own protest against agency actions in that procurement and receiving reimbursement for costs incurred in preparing and filing the complaint. The fate of any settlement discussion is uncertain. For all we know, the filing of the second protest may have been the spur to completing negotiations on the first, and thus played a pivotal role in bringing the litigation to resolution. We also agree with First Image's statement that the two protests are materially different in that each focuses on misevaluation of the particular protester's proposal. Where protesters perform commensurate work in pursuing similar cases, using a more economical party's costs as a lodestar against which the reasonableness of the other party's costs may be assessed is appropriate. Horizon Data Corp. v. Department of the Navy, GSBCA 11018-C(10831-P), 92-2 BCA 24,852, at 123,978-79, 1992 BPD 49, at 6-7. Where the protesters, even in consolidated cases, perform unlike tasks, however, this approach is not appropriate. Government Technology Services, Inc. v. Department of the Air Force, GSBCA 12277-C(12041-P), 94-3 BCA 27,008, at 134,562-63, 1994 BPD 128, at 4-5; Cordant, Inc. v. Department of the Navy, GSBCA 12226-C(12011-P), 94-1 BCA 26,275, 1993 BPD 210. Because First Image's effort in these cases was almost entirely devoted to preparation of its protest, and that complaint was quite different from Applied Technology Associates', we cannot use a lodestar here. We take seriously, however, our charge to award reimbursement only for those costs incurred by a successful protester which are both reasonable and necessary for the pursuit of the case. We are mindful of the Court of Appeals' counsel that reimbursing a winning litigant for every expense it has seen fit to incur would not be just. Sterling Federal Systems, Inc. v. Goldin, 16 F.3d 1177, 1187 (Fed. Cir. 1994). According to documentation submitted by First Image, the firm expended overwhelming effort in considering whether to file the protest, developing substantiation for its position, drafting the complaint, and working on the case after the complaint had been filed. In all, First Image's consulting firm devoted 127 hours to these tasks; its own employees spent 101 hours on them; and its lawyers worked 85 hours. The Board could not even pretend to know enough about a case which was active for only two days to judge whether any one of these hours was well spent. We can say, however, that devoting 313 hours to the tasks which were performed seems considerably excessive. In our estimation, costs of no more than $10,000 might reasonably have been incurred in work on these activities. First Image has documented that it spent $3,544.40 on attorney fees and disbursements for writing and substantiating the cost motion and responding to INS's answer to it. We consider that these costs were reasonable and necessary. Decision We GRANT IN PART First Image's application and award to this firm $13,544.40 as the reasonable and necessary costs of pursuing its protest. This sum shall 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). _________________________ STEPHEN M. DANIELS Board Judge I concur: _________________________ ROBERT W. PARKER Board Judge HYATT, Board Judge, concurring. I concur in the result reached by the majority because I believe the amount awarded to protester is reasonably attributable to, and properly compensates for, the efforts of protester's counsel. I would not, however, award any of the salary or salary-related costs of protester's employees. See Sterling Federal Systems, Inc. v. National Aeronautics and Space Administration, GSBCA 10000-C-REM (9835-P), 1995 BPD 65 (Mar. 10, 1995) (DeGraff, J., concurring in part and dissenting in part). ____________________________ CATHERINE B. HYATT Board Judge