_____________________ DENIED: May 29, 1996 _____________________ GSBCA 12967-C(12891-P), 12969-C(12891-P) DIGITAL EQUIPMENT CORPORATION, and GDE SYSTEMS, INC., Applicants, v. GENERAL SERVICES ADMINISTRATION, Respondent. Jeffrey H. Schneider of Jeffrey H. Schneider & Associates, Silver Spring, MD; and Daniel B. Abrahams, Raymond Fioravanti and Shlomo D. Katz of Epstein Becker & Green, Washington, DC, counsel for Applicant Digital Equipment Corporation. Stuart B. Nibley and Kevin J. Edmundson of Seyfarth, Shaw, Fairweather & Geraldson, Washington, DC, counsel for Applicant GDE Systems, Inc. Michael D. Tully and Wendy Nevett Bazil, Office of the General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges PARKER, VERGILIO, and DeGRAFF. VERGILIO, Board Judge. Digital Equipment Corporation and GDE Systems, Inc. each filed an application to recover its costs of filing and pursuing a protest dismissed with prejudice by the Board. In the post- award protest, the respondent, the General Services Administration, stipulated that it violated a specific regulation in the source selection process and represented that it would terminate the underlying contract. The Board granted the agency's motion to dismiss the protest, neither Digital nor GDE having established a basis to deny the agency motion. Thereafter, the agency reselected the same awardee, utilizing solely the information contained in the record at the time of the dismissal with prejudice. Neither Digital nor GDE objected to the reselection determination. Despite the agency admission of a violation of regulation in its original source selection determination, the limited nature of its admission together with its subsequent reselection involving the same proposals and utilizing only information in existence at the time of the dismissal do not demonstrate that these applicants are appropriate, prevailing parties to recover costs. The record leaves open the possibility that, despite the agency-admitted violation, the developed protest record may have supported the original selection determination such that, with a de novo review, had the Board reached the merits it would have denied the protest. Another possibility (as urged by the applicants) is that the violation actually prejudiced the applicants. However, if the selection could not be justified, then the reselection (based on no additional information) also would not be justified. Hence, this scenario requires the Board to conclude that the agency knowingly made a reselection in violation of the regulation--a conclusion the record does not support. In short, the record does not demonstrate that Digital or GDE is an appropriate prevailing party. Accordingly, the Board denies the applications. Findings of Fact 1. On June 29, 1994, Digital filed a post-award protest challenging actions of the agency in conducting a procurement and in awarding a contract to International Business Machines Corporation (IBM). Participating as an intervenor of right, GDE pursued a single ground of protest: the agency failed to conduct an adequate price-technical trade-off analysis. By motion dated August 5, 1994, the agency requested a dismissal with prejudice of the protest. The agency represented that it would terminate the contract awarded to IBM. Further, GSA stipulates that the contract [with IBM] was awarded in violation of Federal Acquisition Regulation [FAR] 15.612(d). GSA stipulates that Digital and GDE have succeeded as to a significant issue and should be deemed the prevailing parties and awarded reasonable and documented attorney fees and costs of pursuing the protests. In granting the motion to dismiss with prejudice, the Board stated: In light of the agency's stipulations, all of the parties agreed that a hearing on the merits in this protest was not necessary. No party has asked to submit the matter on the record. No party has introduced an admission which would enable the Board to grant the protest. Before the Board is the agency's motion to dismiss. Neither Digital nor GDE agree to the dismissal unless the Board makes determinations which the Board presently is not in a position to make. However, no party has suggested an alternate resolution given the state of proceedings and of the procurement. No party has offered a basis to deny the motion to dismiss with prejudice. Digital Equipment Corp. v. General Services Administration, GSBCA 12891-P, 1994 BPD 171 (Aug. 12, 1994). 2. The regulation referenced in the agency's stipulation provides: Source Selection Decision. The source selection authority shall use the factors established in the solicitation (see 15.605) to make the source selection decision. (1) The source selection authority shall consider any rankings and ratings, and, if requested, any recommendations prepared by evaluation and advisory groups. (2) The supporting documentation prepared for the selection decision shall show the relative differences among proposals and their strengths, weaknesses, and risks in terms of the evaluation factors. The supporting documentation shall include the basis and reasons for the decision. 48 CFR 15.612(d) (1994). The agency has provided no greater details as to the specifics of the alleged violation. 3. In September 1994, Digital and GDE each filed an application to recover its costs of filing and pursuing the protest, docketed as GSBCA 12967-C(12891-P) and 12969-C(12891-P), respectively. 4. In November 1994, the agency "reselected" IBM as the awardee. New proposals did not form the basis of the selection. The agency relied upon the initial evaluations and source selection material and a cost/technical trade-off report prepared in the course of the Digital protest and dated July 28, 1994. As noted in a protest of the November selection of IBM, "The GSA source selection authority testified that that decision [to reselect IBM] 'was based on the initial comparative best value analysis contained in the June 14, 1994 Source Selection Advisory Council Analysis Report as supplemented by the July 28, 1994 Cost/Technical Tradeoff Report.'" Data General Corp. v. Johnson, 78 F.3d 1556, 1559 (Fed. Cir. 1996). Thus, the agency justified the November selection of IBM solely based upon the information existing for inclusion in the record in the underlying protest of Digital. No new analysis or new consideration of trade-offs is said to have occurred. Discussion The Brooks Act, applicable at the time the underlying protest and cost cases were filed, specified that if the Board determines that a challenged agency action violates a statute or regulation or the conditions of an applicable delegation of procurement authority, then the Board may further declare an appropriate interested party to be entitled to the costs of filing and pursuing the protest and of bid and proposal preparation. 40 U.S.C. 759(f)(5)(C) (1988). The Board did not reach the merits of the underlying protest. In light of a dismissal, an applicant may request the Board to determine that an agency action violated statute, regulation, or the conditions of procurement authority, and to conclude that the applicant is an appropriate party to recover its requested costs. An agreement by the parties does not bind the Board in resolving a subsequent cost application. Information & Telecommunications Strategies v. Department of the Navy, GSBCA 12680-C-R(12605-P), 94-3 BCA 27,270, 1994 BPD 202; International Data Products Group, Inc., GSBCA 10302- P(10241-P), 1989 BPD 327 (Oct. 23, 1989). The Board may conclude, based upon the terms of a stipulation and the actions of the agency, that a party has significantly prevailed for purposes of recovering its costs. Zyga Corp., GSBCA 10059-P, 89- 3 BCA 21,988, 1989 BPD 169; Zyga Corp., GSBCA 10154-C(10059- P), 90-1 BCA 22,376, 1989 BPD 310. A necessary predicate for Digital and GDE to recover in their cost applications is a demonstration of an agency violation in the underlying procurement. Integrated Systems Group, Inc. v. Department of the Air Force, GSBCA 12256-C(12099-P), 95-2 BCA 27,738, 1995 BPD 107. Not every agency-asserted violation demonstrates entitlement to relief--the violation may not have affected the protested agency actions or the determination by the Board. Here, the agency stipulated that the contract was awarded in violation of a regulation. The stipulation does not address whether or not that selection determination was otherwise supportable. The de novo standard of review applicable to protest proceedings requires the Board to review a challenge to the source selection determination in accordance with that standard: While it is true that the board based its decision upon a different best value analysis than that relied on by the [agency], such action is entirely permissible under a de novo standard of review because the reviewing board is not limited to the findings made by the agency or contained in the initial decision. Under de novo review, a board may consider the analysis developed by the agency or produce and consider its own analysis. Grumman Data Systems Corp. v. Widnall, 15 F.3d 1044, 1046-47 (Fed. Cir. 1994) (citations omitted). The agency has not stipulated that the award determination was not supported by the record. Its November selection of IBM suggests to the contrary. Solely based on the information existing at the time of the Digital protest (that protest underlying these cost cases), the agency selected IBM. The determination went unchallenged by Digital and GDE. Contrast the present situation with the cases in which the Board grants a protest challenging a source selection determination, requires the agency to conduct a new source selection, and the agency reselects the original awardee without receipt of revised proposals; the initial protester is an appropriate party to recover costs in an application. See, e.g., Grumman, 15 F.3d 1044; Grumman Data Systems Corp. v. Department of the Air Force, GSBCA 11799-C-REM(11635-P), 96-1 BCA 28,243, 1996 BPD 47; Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d 955 (Fed. Cir. 1993); International Business Machines Corp. v. Department of the Treasury, GSBCA 11605-C(11359-P), 93-1 BCA 25,420, 1992 BPD 220; Lockheed Missiles & Space Co. v. Department of the Treasury, GSBCA 11604-C(11362-P), 93-1 BCA 25,478, 1992 BPD 276. In those situations, the Board concluded that the record existing at the time the Board resolved the merits demonstrated that the agency's source selection decision violated statute and regulation and prejudiced the protester. Hence, the Board granted the initial protest. The protester prevailed, was replaced in the competitive range with an opportunity for award, and the agency was required to engage in a new analysis and exercise of discretion to support a selection determination. Had the record been developed during the course of the protest proceeding to support the selection determination, the protest would have been denied. Grumman, 15 F.3d 1044. There exists a fundamental inconsistency between the actions of these parties and their contentions that Digital and GDE succeeded as to a significant issue and should be deemed prevailing parties and awarded reasonable costs. The regulation the agency admits to have violated dictates particular conduct: the selecting individual must use solicitation-established factors in making the source selection decision; the selecting individual must consider rankings and ratings, and (if requested) particular recommendations; and the documentation prepared in support of the selection determination must show specific items and include the basis and reasons for the decision. The agency's stipulation and its subsequent actions are equivocal at best. The record reveals no specifics as to the particular violative action, whether procedural or substantive. However, the agency's subsequent reselection of IBM, utilizing solely the information in existence at the time the protest was dismissed, suggests that Digital and GDE may have been unable to demonstrate a prejudicial violation. Alternatively, if the violation was substantive, the agency reselected IBM without additional information. Thus, any violation would have been perpetuated in the reselection. The agency would knowingly have violated regulation by such conduct; Digital and GDE would have acquiesced in the reselection. Not only does the existing record fail to so implicate the agency, but also the actions or inactions of Digital and GDE, in failing to benefit the procurement process, do not bespeak an appropriate party to recover costs from the Government. The record does not demonstrate that either Digital or GDE is an appropriate party to recover its costs of filing and pursuing the protest. Decision The Board DENIES the applications. ______________________________ JOSEPH A. VERGILIO Board Judge We concur: ____________________________ ___________________________ ROBERT W. PARKER MARTHA H. DeGRAFF Board Judge Board Judge