THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON AUGUST 12, 1996 _________________________________ GRANTED IN PART: August 6, 1996 _________________________________ GSBCA 13394-C(13334-P) GOVERNMENT TECHNOLOGY SERVICES, INC., Applicant, v. DEPARTMENT OF THE TREASURY, Respondent. Richard J. Conway and Merle M. DeLancey, Jr., of Dickstein, Shapiro & Morin, L.L.P., Washington, DC, counsel for Applicant. Donald M. Suica and Corlyss M. Drinkard, Office of Chief Counsel, Internal Revenue Service, Department of the Treasury, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), BORWICK, and WILLIAMS. WILLIAMS, Board Judge. Background On June 15, 1995, Zenith Data Systems (ZDS) filed a protest challenging the Department of the Treasury's (Treasury's) award of a contract for standard, off-the-shelf Federal Information Processing (FIP) resources, including microcomputers, notebook computers, and peripherals, to Electronic Data Systems Corporation (EDS). On June 19, 1995, WIN Laboratories, Ltd. (WIN) intervened in ZDS' protest, supporting all grounds of protest, and filed its own protest, docketed as GSBCA 13307-P. On June 20, 1995, Government Technology Systems, Inc. (GTSI) timely intervened in the ZDS and WIN protests, and on June 23, 1995, timely filed its own protest, docketed as GSBCA 13334-P. In Count I of its protest, ZDS alleged that offerors were not advised in the solicitation that a second-year warranty was preferred by Treasury or would be considered to be of value in Treasury's best value analysis. WIN filed an amended complaint claiming that EDS' monitor did not meet mandatory solicitation requirements. Each of the protesters sought the termination of the EDS contract, the amendment of the request for proposals to reflect all significant evaluation criteria, and the solicitation of another round of best and final offers (BAFOs) followed by a new evaluation and award. ZDS and GTSI, joined by WIN, sought summary relief based upon Treasury's improper evaluation of EDS' second-year warranty. Zenith Data Systems Corp. v. Department of the Treasury, GSBCA 13306-P, et al., 95-2 BCA 27,863, 1995 BPD 160. The Board granted the motion for summary relief. 95-2 BCA at 183,934, 1995 BPD 160, at 22. As a result of the protesters' successful motions for summary relief with respect to Count I of ZDS' protest, Treasury agreed to settle the remaining grounds of the protests, and the protesters agreed to dismiss their protests. As reflected in the Board's July 31, 1995, order of dismissal, Treasury admitted violations of the statutory requirement that agencies evaluate proposals based solely upon the factors set forth in the solicitation. According to the terms of the settlement agreement, each of the protesters was deemed a "prevailing party" having obtained a substantial benefit in the form of relief sought. The settlement agreement provided in pertinent part: Whereas, on June 15, 1995, Zenith filed a protest with the General Services Administration Board of Contract Appeals (GSBCA) No. 13306-P, alleging that, among other things, the procurement conducted under solicitation no. IRS-93-0007 (the procurement) leading to the award of contract no. Tir-95-0016 (the contract) to EDS violated 41 U.S.C. 253b(a) because the Government had improperly and prejudicially considered in the evaluation of offers EDS' offer of a second-year warranty on all hardware items; WHEREAS, EDS, WIN, and GTSI intervened in the Zenith protest; WHEREAS, WIN later protested, among other things, that the monitor proposed by EDS under the solicitation does not meet the mandatory requirements of the solicitation; WHEREAS, GTSI later protested, among other things, that the Government had engaged in improper negotiations and auctioning in connection with discussions that culminated in the third round of BAFOs requested in connection with the solicitation; WHEREAS, the GSBCA, ruling on the Government's, protesters', and intervenors' cross-motions for summary relief on Count I of the Zenith protest, granted the protesters' and intervenors' motions and determined that the Government had considered an undisclosed evaluation factor in its evaluation of offerors under M.6.1.4 and under M.4.1 and M.4.2 under the solicitation, to wit, EDS's second-year warranty and the value thereof; WHEREAS, the parties have agreed to resolve amicably the appropriate remedy for the violation of law that has occurred and the appropriate action to take with regard to remaining allegations against the Government, the parties agree as follows: A. The Government: 1. Shall terminate for convenience its award of the contract to EDS; 2. Shall appoint a new Source Selection Authority, who will be an individual with no prior involvement with this procurement, to issue a new SSA Decision Document; 3. Shall appoint a new Source Selection Advisory Council, comprised of different individuals who have had no prior involvement with this procurement, to issue a new SSAC Report and Award Recommendation; 4. Shall rescore the EDS offer under M.6.1.4 of the solicitation so as to remove any consideration of the second-year warranty in accordance with the GSBCA's ruling granting Count I, and make any further adjustments also required by the GSBCA's rulings, and make no other adjustments; 5. Shall, consistent with the Board's order granting Count I, not consider, in any part of the evaluation or source selection, the length of an offered warranty beyond the one year required by the solicitation; 6. Shall not permit any offeror to revise its proposal in making the new source selection decision; and 7. Agrees that Zenith Data Systems Corporation, WIN Laboratories, Ltd., and Government Technology Services, Inc. are all prevailing parties and have obtained a substantial benefit in the form of relief sought. The Government further agrees that [each of] the aforementioned three parties can submit an application for protest costs under GSBCA Rule 35 and that the Government will not oppose those motions, except on the ground of unreasonable costs, if any. The Government further represents that it will prepare and file any documentation required by 1436 of the Federal Acquisition Streamlining Act. Any such documentation will take the position that the contract award was unlawful for the reasons expressed in Count I of the protest and granted by the Board. B. Zenith, Win and GTSI shall withdraw their several protests with prejudice . . . . Zenith Data Systems Corp. v. Department of the Treasury, GSBCA 13306-P, et al., 95-2 BCA 27,863, 1995 BPD 155. Treasury also agreed not to oppose the protesters' applications for protest costs under Rule 35, except on the ground of reasonableness. Discussion Applicant GTSI seeks a total of $112,599.36. Specifically, GTSI seeks the reimbursement of $93,050 for attorney fees, $13,746.80 for expenses, and $5,802.56 for in-house personnel costs incurred in filing and pursuing the protest. Treasury only objects to the attorney fees in excess of the statutory cap imposed by section 1435 of the Federal Acquisition Streamlining Act (FASA) of 1994. Although Treasury does not oppose the remainder of the applicant's motion for costs, the Board must independently ascertain whether it is appropriate to award costs. Communication Network Systems, Inc. v. Department of Commerce, GSBCA 12799-C(12705-P), slip op. at 4 (July 1, 1996). Under Rule 35, an appropriate prevailing party in a proceeding before the Board may apply for an award of costs under the Brooks Automatic Data Processing Act (Brooks Act), 40 U.S.C. 759(f)(5)(C) (1994), subsequent to the Board's decision in the proceeding. Rule 35(a) (48 CFR 6101.35(a)). For the purposes of this Rule, a "decision" includes orders of dismissal resulting from settlement agreements that bring to an end the proceedings before the Board. A "prevailing party" is a party who has demonstrated that a challenged action of a Federal agency violates a statute or regulation or the conditions of a delegation of procurement authority. 40 U.S.C. 759(f)(9)(c) (1994); Rule 1(b)(12). As Treasury admitted in its settlement agreement, GTSI is an "appropriate prevailing party" entitled to the award of reasonable protest costs, including reasonable attorney fees, pursuant to Rule 35. In support of its application for costs, GTSI provided a detailed description of the daily activities undertaken by its counsel in the filing and pursuit of this protest, along with documentation of the expenses incurred by counsel. Protester's Motion for Award of Protest Costs, Exhibit B; Protester's Supplement to Motion for Award of Protest Costs, Exhibit A. Attorney Fees Section 1435 of FASA, as an amendment of the Brooks Act, denies the recovery of a prevailing party's attorney fees in excess of $150 per hour, unless the party is a small business concern or explains why a "special factor" or an increase in the cost of living adjustment would justify a higher fee. Pub. L. No. 103-355, 1435, 108 Stat. 3243 (1994); 40 U.S.C. 759(f)(5)(C) (1994). Rule 35, quoting the FASA provision, provides in pertinent part: (6) If the application requests reimbursement of attorney fees that exceed the statutory rate, explain why an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies such fees. Rule 35(c)(6). In its motion for costs, GTSI states that the Board should grant on award of attorney fees in excess of $150 per hour for its counsel's services due to counsel's "extensive expertise in Federal Government contract law and, in particular, in the specialized area of complex litigation involving Automatic Data Processing ("ADP") procurements. . . ." Protester's Motion for Award of Protest Costs at 16. In a recent decision, protester Advanced Technology Systems, Inc. (ATSI) applied for the "special factor" exception to the cap on attorney fees, citing its "major commitment of attorney resources . . . on short notice" and the "numerous, complex and novel" issues of fact and law involved in the protest. Advanced Technology Systems, Inc. v. General Services Administration, GSBCA 13398-C(13312-P), slip op. at 5 (June 28, 1996). The Board refused to reimburse fees in excess of the statutory cap of $150 per hour, stating: The applicant has not suggested, and there is no reason to believe, that Congress was unaware either of the short time frame to develop the record in a protest, with the immediate need for staffing, or that many protesters retain counsel from the Washington, D.C., area, or of the prevailing rates of retained counsel in protest proceedings. . . . The issues of facts and law were focused, straightforward and routine, not "numerous, complex and novel." This protest was a typical challenge to an agency determination not to place the protester in the competitive range. . . . To permit recovery of an hourly rate in excess of $150 in this case would circumvent the express limitation established in the statute. Id. The decision in ATSI directly addresses GTSI's claims. While GTSI counsel are obviously skillful, well-experienced government contract litigators, GTSI did not demonstrate how its attorneys applied "specialized" skills to the instant protest. The parties settled the protest based on Treasury's admitted violation after the Board granted ZDS' motion for summary relief. As in ATSI, the issues were "focused, straightforward and routine." GTSI failed to demonstrate how any aspect of this protest required special skills uniquely possessed by its counsel. We consequently deny recovery of attorney fees claimed in excess of $150 per hour -- a total of $26,510. Expenses GTSI's counsel certified in a declaration that GTSI incurred costs for courier service, transcripts, photocopying, faxes, computer research, postage, depositions, witnesses, and long distance telephone calls in conjunction with the protest in the amount of $13,746.80. Protester's Motion for Award of Protest Costs, Exhibit B; Protester's Supplement to Motion for Award of Protest Costs, Exhibit A. These expense claims are sufficiently documented as to their purpose and reasonableness of amount. Sytel, Inc. v. Department of Health and Human Services, GSBCA 12901-C(12827-P), 96-1 BCA 28,124, at 140,396, 1995 BPD 224, at 3. In-House Personnel Costs GTSI sought in-house personnel costs for five employees. Protester's Application for Payment of Costs, Exhibit C at 1, 2. GTSI also submitted contemporaneous "Project Timesheets" which listed the number of hours spent daily by each employee on this protest as well as diaries and calendars describing the tasks performed. Id. at 4. In general, GTSI summarized the work performed by in-house personnel as follows: [GTSI's President] Mr. Lawrence's activities performed for counsel involved the following three areas: (1) briefing counsel concerning the multiple initial offers and BAFOs submitted by GTSI for the TDA- I procurement; (2) responding to voluminous discovery requests served by the Department of Treasury and EDS; and (3) preparing for deposition. James Dunn, Director of Contract Development for GTSI, . . . spent . . . time briefing counsel and responding to discovery requests. In addition, on July 10 and 11, Mr. Dunn prepared for and was deposed by the Department of Treasury. Denise Harrison, Rose McGrath, and Dennis Cashmere spent [their time] gathering data, at the request of counsel, to respond to discovery requests. Specifically . . . these GTSI employees prepared Schedule B/C revenue data by fiscal year for specific products relevant to the TDA-I protest, as well as revenue data for sales made by GTSI under its Desktop IV contract with the Department of the Air Force. This revenue data was produced during discovery. Id. at 3, 4. This Board will reject claims for in-house costs when the submitted documentation does not provide a sufficient basis to ascertain whether the purpose and amount of the expenses are reasonable. Communication Network Systems, Inc. v. Department of Commerce, GSBCA 12799-C(12705-P), slip op. at 4 (July 1, 1996); Sytel, Inc. v. Department of Health and Human Services, GSBCA 12901-C(12827-P), 96-1 BCA 28,124, at 140,396, 1995 BPD 224, at 3 (citing Materials, Communication & Computers, Inc. v. Defense Logistics Agency, GSBCA 13084-C(12930-P), et al., 95-2 BCA 27,867, at 138,953, 1995 BPD 161, at 5). The Board finds that the documentation submitted by the applicant provides a sufficient basis to conclude that the purpose and the amount of the expenses sought for in-house personnel are reasonable. Decision GTSI's application is GRANTED IN PART in the amount of $86,089.36. 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). ___________________________ MARY ELLEN COSTER WILLIAMS Board Judge We concur: ___________________________ ____________________________ STEPHEN M. DANIELS ANTHONY S. BORWICK Board Judge Board Judge