_____________________ DENIED: April 9, 1996 _____________________ GSBCA 13231-C(12999-P) TRESP ASSOCIATES, INC., Applicant, v. DEPARTMENT OF ENERGY, Respondent. Mary Beth Bosco, Timothy B. Mills, Glenn T. Reynolds, and Christy L. Gherlein of Patton Boggs, Washington, DC, counsel for Applicant. Mary D. Copeland, Wendy E. Ojeda, and Nicole Porter, Office of Chief Counsel, Department of Energy, Oak Ridge, TN, counsel for Respondent. Before Board Judges PARKER, VERGILIO, and GOODMAN. VERGILIO, Board Judge. TRESP Associates, Inc., has filed an application to recover its costs of participating in the protest of Columbia Services Group, Inc., which the Board granted in part. TRESP participated in the protest solely as a permissive intervenor; TRESP could not assert or pursue any basis of protest on its own. The respondent, the Department of Energy, suggests that, as a permissive intervenor, TRESP is not an appropriate party to recover its requested costs. The agency asks that, if the Board deems TRESP an appropriate party to recover costs, the requested amount be reduced because the Board found no agency violations on severable issues and because amounts sought are unreasonable. Having filed a protest with the General Accounting Office involving the same procurement, TRESP was not in a position to file or pursue any issue of protest at the Board. Although TRESP was a fortuitous beneficiary of the results of the protest process (the agency redetermined the competitive range, including TRESP therein with an opportunity to compete for the award), such did not occur because of TRESP's participation in the protest. Given its status in the protest, TRESP could not prevail at the Board; the Board did not conclude that any action of the agency both was improper and adversely affected TRESP. The Board denies the application. Findings of Fact 1. TRESP participated in the underlying pre-award protest as a permissive intervenor. Because TRESP had filed its own protest with the General Accounting Office in the same procurement, the Board concluded that TRESP was prohibited from filing and pursuing a protest at the Board either as a protester or as an intervenor of right. Columbia Services Group, Inc. v. Department of Energy, GSBCA 12999-P, 94-3 BCA 27,256, 1994 BPD 223, motion for reconsideration denied, 95-1 BCA 27,345, 1994 BPD 242, motion for full Board consideration denied 1994 BPD 255 (Nov. 2, 1994); TRESP Associates, Inc. v. Department of Energy, GSBCA 13060-P, 95-1 BCA 27,322, 1994 BPD 252. 2. In an opinion issued on December 8, 1994, the Board granted in part the protest of Columbia. Columbia Services Group, Inc. v. Department of Energy, GSBCA 12999-P, 95-2 BCA 27,868, 1995 BPD 153. As detailed in the opinion, the Board granted one count (the agency improperly excluded Columbia from the competitive range) and portions of two counts (the agency- found weaknesses in one aspect of Columbia's proposal departed from the solicitation; and, for two of five evaluation criteria, the agency did not consistently evaluate particular aspects of the Columbia proposal and that of an offeror within the competitive range). The Board denied the remainder of the counts. TRESP had been excluded from the competitive range. However, the Board made no factual findings or legal determinations as to whether or not agency actions relating to the exclusion of TRESP were violative of statute, regulation or conditions of the agency's procurement authority. 3. Subsequent to the Board decision granting the protest and revising the agency's applicable procurement authority, the agency redetermined the competitive range. The agency included TRESP within the competitive range. Agency Response at 3 (June 2, 1995). Discussion Whenever the Board determines that a challenged agency action violates a statute, regulation, or the conditions of procurement authority, statute permits the Board to further declare an appropriate interested party to be entitled to the costs of filing and pursuing the protest, including reasonable attorney fees. 40 U.S.C. 759(f)(5)(C) (1988). The record does not demonstrate that TRESP is an appropriate party to recover its requested costs. The issues of protest related to the agency's actions with respect to Columbia. TRESP could not raise or pursue at the Board a ground of protest. Any benefit TRESP obtained from the protest was derivative or fortuitous. The Board made no findings or conclusions with respect to agency actions relating to its determination to exclude TRESP from the competitive range. Nothing in the record demonstrates that TRESP's participation in the protest altered the outcome of the protest or affected the actions of the agency subsequent to the Board's revision of the agency's applicable procurement authority. TRESP has not demonstrated that it is an appropriate party to recover its requested costs. Decision The Board DENIES the application of TRESP. _________________________ JOSEPH A. VERGILIO Board Judge We concur: ____________________________ ___________________________ ROBERT W. PARKER ALLAN H. GOODMAN Board Judge Board Judge