_____________________________________________ MOTION FOR COSTS DENIED: March 29, 1993 _____________________________________________ GSBCA 10387-C(10100-P)-REIN PLANNING RESEARCH CORPORATION, Protester, v. DEPARTMENT OF ENERGY, Respondent. Lawrence M. Farrell and Susan Heck Lent of McKenna & Cuneo, Washington, DC, counsel for Protester. Prentis Cook, Office of the General Counsel, Department of Energy, Washington, DC, counsel for Respondent. Before Board Judges PARKER, BORWICK, and VERGILIO. PARKER, Board Judge. Planning Research Corporation (PRC) moves for an award of costs incurred in connection with PRC's intervention in a "show cause" proceeding filed by Electronic Data Systems Federal Corporation (EDS). For the reasons explained below, we deny PRC's motion. Background This matter began when EDS filed a protest challenging the award of a contract by the Department of Energy's Energy Information Administration (EIA). PRC, the contract awardee, intervened on the side of the Government. The Board granted EDS's protest, holding that PRC had offered the services of employees that it never intended to provide; that EIA ignored evidence that should have put it on notice of PRC's intended "bait and switch"; and that, immediately after award, EIA permitted PRC to make massive substitutions of personnel, the effect of which was to invalidate the evaluation process under which PRC had won the contract. The Board directed EIA to terminate the contract, to determine its actual requirements for the facilities management services, and to fulfill those requirements in accordance with statute and regulation. Electronic Data Systems Federal Corp., GSBCA 9869-P, 89-2 BCA 21,665, 1989 BPD 69, reconsideration denied, 89-2 BCA 21,778, 1989 BPD 111. PRC's appeal of that decision was denied in relevant part. Planning Research Corp. v. United States, 971 F.2d 736 (Fed. Cir. 1992). Shortly after the Board's decision, EIA decided to award the contract to another company under the Small Business Administration's 8(a) program. EDS challenged the intended award by filing a "Motion for an Order to Show Cause," which the Board treated as a motion to enforce its order in the underlying protest. Neither EDS nor the Board considered the matter to be a new protest. PRC intervened in support of EDS's motion, and on October 10, 1989, the motion was granted. In short, we found that the intended award under the 8(a) program was a "sham," designed to avoid further scrutiny of the procurement by the Board. Electronic Data Systems Federal Corp., GSBCA 10010- P(9869-P), 90-1 BCA 22,337, 1989 BPD 304. The Board's decision on the motion was not appealed. Discussion PRC moves the Board for award of costs incurred in connection with its intervention in EDS's successful Motion for an Order to Show Cause.[foot #] 1 According to PRC, the motion was in essence a separate protest of the 8(a) award and PRC, as an intervenor on the side of the protester, should be considered a "prevailing party" entitled to recover its protest costs. We disagree. The Board's authority to award costs is set forth in the Brooks Act: (C) Whenever the board [determines that a challenged agency action violates a statute or regulation or the conditions of any delegation of procurement authority issued pursuant to this section], it may . . . further declare an appropriate interested party to be entitled to the costs of-- (i) filing and pursuing the protest, including reasonable attorney's fees, and (ii) bid and proposal preparation. ----------- FOOTNOTE BEGINS --------- [foot #] 1 On October 25, 1990, the Board dismissed without prejudice PRC's original motion for costs, pending a decision by the Federal Circuit on PRC's appeal of the original decision. After the Federal Circuit's decision, PRC reinstated the motion for costs. ----------- FOOTNOTE ENDS ----------- 40 U.S.C. 759(f)(5)(C) (1988). This Board has consistently held that this provision permits the award of costs when it is established that (1) the party seeking costs is a prevailing party, and (2) the award of costs serves the public interest in encouraging the private enforcement of procurement laws and regulations. Trinet, Inc., GSBCA 9903-C(9746-P), 89-3 BCA 21,860, 1989 BPD 166. PRC's motion fails here for two reasons: (1) PRC did not prevail in a protest, and (2) an award of costs here would not serve the public interest. EDS, not PRC, filed the original protest. PRC, the original awardee, intervened on the side of the Government in an attempt to protect its award. When EDS filed its motion to enforce the decision, which was never considered by EDS or this Board to be a new protest, PRC appeared to have switched sides when it intervened on the side of EDS. But this action by PRC, along with its appeal of the original protest decision, did not change PRC's original position in the protest. PRC was still in a posture of attempting to protect its award -- an award which the Board found to have violated statute and regulation. Thus, we do not view PRC as having prevailed in the "protest." Even if we were to view EDS's motion as, in substance, a separate protest, PRC would still not be eligible for an award of costs. PRC's "bait and switch" was the primary basis for the Board's decision to require EIA to terminate the original contract award. All that happened thereafter resulted to some degree from PRC's improper conduct. In these circumstances, we believe that the public interest would not be served by an award of costs to PRC. To say that PRC helped the Government as a private Attorney General stretches the cost recovery provision of the Brooks Act beyond all reasonable bounds. PRC should not profit from its conduct, even where, as here, the Government's later actions were inappropriate and detrimental to PRC. Decision For the reasons discussed above, PRC's motion is DENIED. _______________________ ROBERT W. PARKER Board Judge I concur: ____________________ ANTHONY S. BORWICK Board Judge VERGILIO, Board Judge, dissenting. I respectfully dissent from the decision of the majority. I conclude that PRC is an appropriate interested party to recover the reasonable costs it incurred as an intervenor of right in Electronic Data Systems Federal Corp., GSBCA 10100-P(9869-P), 90- 1 BCA 22,337, 1989 BPD 304, where the Board both determined that the agency intentionally violated its revised procurement authority and revoked the agency's procurement authority related to satisfying the underlying requirements. In an initial protest by EDS, the Board concluded that the agency had improperly made an award to PRC; the Board revised the agency's delegation of procurement authority. Among other things, under its revised authority, the agency was required "to determine its actual requirements for facilities management and support services, and to fulfill those requirements in accordance with statute and regulation."[foot #] 1 Subsequently, the agency made known its intent to make an award under the 8(a) program to satisfy its requirements which had been subject to the EDS protest. EDS filed a motion to obtain an order to show cause why the agency's actions did not constitute an attempt unlawfully to circumvent the Board's decision. PRC was an intervenor of right in the proceeding also contesting the agency's actions. PRC did not file a separately captioned protest. All of the parties were content to utilize the motion, as opposed to a separately filed and docketed protest, to have the Board resolve the question of the propriety of the agency actions. The focus of the proceedings on the motion was the agency's actions related to the proposed 8(a) award and the agency's failure to make a determination regarding its true requirements before proceeding with procurement action. These agency actions (and inactions) were taken (and not taken) subsequent to the earlier protest, and were independent of the earlier actions. A protest--the written objection to the proposed award of a contract, 40 U.S.C. 759(f)(9)(A) (1988)--was at hand in the guise of a motion. In resolving the motion to show cause, the Board determined that the agency had acted improperly in its attempt to make an ----------- FOOTNOTE BEGINS --------- [foot #] 1 Electronic Data Systems Federal Corp., GSBCA ______________________________________ 9869-P, 89-2 BCA 21,665, 1989 BPD 69, reconsideration denied, ______________________ 89-2 BCA 21,778, 1989 BPD 111, aff'd in part, Planning _______________ ________ Research Corp. v. United States, 971 F.2d 736 (Fed. Cir. 1992). ________________________________ As a result of the Board decision and revision of procurement authority, PRC, as the original awardee, did not lose its direct economic interest in the procurement and in satisfying the agency's actual requirements. ----------- FOOTNOTE ENDS ----------- award under the 8(a) program and in its failure to assess its true requirements. As a result of the Board determination on these matters, the Board revoked the agency's procurement authority. PRC was an interested party in the proceedings on the motion--it had a direct economic interest in the award of a contract to satisfy the agency's underlying actual requirements. The agency actions challenged in the motion to show cause were found to be improper. Accordingly, a statutory predicate to the recovery of costs--the Board conclusion that the agency violated statute, regulation or the conditions of procurement authority, 40 U.S.C. 759(f)(5)(B) (1988)--was satisfied. PRC, as an intervenor in support of the motion to show cause, directly benefitted by prevailing on the motion--the Board revoked the agency's procurement authority, thereby precluding the agency from proceeding with an award under the 8(a) program, and compelling the agency to determine its true requirements before proceeding with a procurement. As an interested party which demonstrated an agency violation and which significantly benefitted by the result, PRC is entitled to recover its reasonable costs of filing and pursuing the motion. 40 U.S.C. 759(f)(5)(C) (1988); Hensley v. Eckerhart, 461 U.S. 424 (1983); International Data Products Corp. v. Department of Justice, GSBCA 10403-C(10303-P), 1992 BPD 328 (Nov. 3, 1992). I take particular exception to certain conclusions of the majority. First, at the time of the motion, PRC was not attempting to preserve its award by joining the EDS motion--the decision on the merits in the EDS protest took away PRC's contract. Rather, PRC was objecting to the agency's attempt to make an award under the 8(a) program without assessing its actual requirements. PRC was contending that the agency had violated its revised procurement authority. In resolving the motion, the Board found such a violation. PRC prevailed in this aspect of the protest. Second, I also part company from the majority regarding its characterization of the agency actions subsequent to the Board granting the EDS protest. The majority states, "All that happened thereafter resulted to some degree from PRC's improper conduct." The agency's actions after the Board had revised the procurement authority were solely the doings of the agency. Any past misconduct by the agency or PRC did not influence the agency's violations, other than creating an opportunity for the agency to violate its revised procurement authority. _________________________ JOSEPH A. VERGILIO Board Judge