GRANTED IN PART: April 5, 1995 GSBCA 12898-C(12840-P) APPLIED TECHNOLOGY ASSOCIATES, INC., Protester, v. DEPARTMENT OF JUSTICE, Respondent. Pamela J. Mazza, Andrew P. Hallowell, and Antonio R. Franco of Piliero, Mazza & Pargament, 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. Applied Technology Associates, Inc. (ATA), 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. Applied Technology Associates, Inc. v. Department of Justice, GSBCA 12840-P, 1994 BPD 111 (June 7, 1994). Pursuant to 40 U.S.C. 759(f)(5)(C)(i) (1988) and Board Rule 35, ATA now seeks an award of the costs it incurred in filing and pursuing the protest. ATA asks us to grant it a total of $18,819.26 -- $16,513.75 in attorney fees, $184.53 in disbursements made by counsel for duplication and transmission of documents and other miscellaneous litigation-related purposes, and $2,120.98 in salary and travel costs of an ATA employee who assisted the lawyers in pursuing the case. Of the last sum, $423.08 is attributable to salary and $1,697.90 to airfare, car rental, parking, lodging, and meals. INS does not contest that ATA was a prevailing party in the protest, and is consequently entitled to an award of costs. The agency urges us to make two deductions from the total requested, however. It suggests that we not allow reimbursement for attorney fees incurred in pursuing protest counts alleging (1) that a subcontractor to the awardee was not a small business (as asserted in the awardee's proposal and accepted by INS) and (2) that INS improperly evaluated proposals. ATA asks us to reject this suggestion. Discussion ATA 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, ATA 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 ATA 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. The Board has consistently held that it does not have jurisdiction to hear protests as to matters which are entrusted by law to the Small Business Administration (SBA) and not to a contracting officer. Accurate Information Systems, Inc. v. Department of Treasury, GSBCA 12978-P, 94-3 BCA 27,259, 1994 BPD 203, reconsideration denied, 1994 BPD 236 (Oct. 21, 1994) (granting of certificates of competency); DataEquip, Inc. v. Department of Veterans Affairs, GSBCA 12791-P, 94-2 BCA 26,882, 1994 BPD 73 (assignment of Standard Industrial Classification codes); JC Computer Services, Inc. v. Nuclear Regulatory Commission, GSBCA 12731-P, 94-2 BCA 26,712, 1994 BPD 31 (same); Integrated Systems Analysts, Inc., GSBCA 10750-P, et al., 91-1 BCA 23,477, 1990 BPD 387 (determination that a firm is a small business concern owned and controlled by socially and economically disadvantaged individuals). Whether a firm is a small business, for purposes of federal procurements, is one of these matters. 48 CFR subpt. 19.3 (1993); 13 CFR 121.1601-1606 (1994); Texas Carbon Ribbon, Inc., GSBCA 9905-P, 89-2 BCA 21,723, at 109,226, 1989 BPD 91, at 5. Consequently, the matter of the awardee's subcontractor's size could not be protested to us. Though this matter may have been relevant to a ground of Board protest, all attorney effort related to it was expended in protesting to the SBA. Even though ATA prevailed at the SBA, it did so after the Board protest was resolved and independently from its success here. See Application for Award of Protest Costs, Exhibit 3. We agree with the INS that fees for this effort are not compensable under the Brooks Act. As best as we can determine from the attorneys' timesheets submitted by ATA, time for which counsel charged $2,754 was associated with pursuit of the challenge to the subcontractor's small business status. This amount, plus a percentage of attorney disbursements commensurate with the time spent on the SBA protest, $30.77, are disallowed. INS urges us to disallow additional costs as having been devoted to pursuit of the allegation that acceptance of the awardee's alternate proposal was improper. The agency maintains that because it gave ATA assurances, both in writing and orally, that the alternate pricing proposal played no role in the award decision, any costs incurred in pursuing the count were needless. ATA responds that because the protest settled so quickly, there is no way of knowing whether the allegation is meritorious -- and in any event, very little time was spent on it. We find ATA's position more persuasive. If agency assurances were the touchstone of protest decisions, no complaint would ever be granted. An agency's simple declaration that a particular count is incorrect is not sufficient justification for disallowing costs associated with that count. Decision We GRANT IN PART ATA's application and award to this firm the reasonable and documented costs of pursuing its protest, $16,034.49. 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 in part and dissenting in part. I concur in the majority's award of attorney fees and out- of-pocket disbursements. I dissent from the majority opinion to the extent that it awards salary costs of protester's employee. I do not believe that these costs should be reimbursed under 40 U.S.C. 759(f)(5)(C) (1988). 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