THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN REDACTED FORM ON AUGUST 12, 1996 ________________________________ GRANTED IN PART: July 31, 1996 ________________________________ GSBCA 13368-C(13307-P) WIN LABORATORIES, LTD., Applicant, v. DEPARTMENT OF THE TREASURY, Respondent. Joseph J. Petrillo and William E. Connor of Petrillo & Associates, 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., 1995 BPD 155 (July 31, 1995). Discussion Applicant WIN seeks a total of $41,268.27 -- $33,527.25 for attorney fees, $6,422.76 in expenses, and $1,318.86 for in-house personnel costs incurred in filing and pursuing the protest. Treasury does not oppose any of the costs sought by WIN. Although Treasury does not oppose 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). The Board concludes that the claims for attorney fees and expenses of outside counsel are reasonable and properly documented. However, the Board finds that WIN's application for in-house personnel costs lacks the requisite documentation for the Board to evaluate the reasonableness of each expense. Sytel, Inc. v. Department of Health and Human Services, GSBCA 12801-C(12827-P), 96-1 BCA 28,124, at 140,396, 1995 BPD 224, at 3. Under Rule 35, an appropriate prevailing party in a protest before the Board may apply for an award of costs, including reasonable attorney fees under the Brooks Automatic Data Processing Act (Brooks Act), 40 U.S.C. 759(f)(5)(C) (1994). Rule 35(a) (48 CFR 6101.35(a) (1995)). A "prevailing party" is a party which 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). For the purposes of Rule 35, a "decision" includes orders of dismissal resulting from settlement agreements that bring to an end the proceedings before the Board. Rule 35(a). As Treasury admitted in its settlement agreement, WIN is an "appropriate prevailing party" entitled to the award of reasonable protest costs, including reasonable attorney fees. In support of its application for costs, WIN 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 1. The attorney fee rates sought by WIN do not exceed the statutory cap of $150 per hour imposed by the Federal Acquisition Streamlining Act, 40 U.S.C. 759(f)(5)(C) (1994), and are reasonable. WIN's counsel certified in a declaration that WIN incurred costs for messenger service, photocopying, faxes, computer research, transcripts and long distance telephone calls in conjunction with the protest in the amount of $6,422.26. Protester's Motion for Award of Protest Costs, Exhibit 1. These expense claims are sufficiently documented as to their purpose and reasonableness of amount. Sytel, Inc., 96-1 BCA at 140,396, 1995 BPD 224, at 3. WIN provided the following documentation with regard to in- house personnel costs sought: The basis for hours listed were individual recollections of work done and the time that it took. The individuals listed were engaged in the following activities: ** *** ****** Conferences; strategy meetings; information gathering; legal negotiations 8 hrs @ ****** = ******* **** ********* Conferences; meeting with lawyers strategy meetings; information gathering; document preparation 5 hrs @ ****** = ****** ***** **** Meetings with lawyers; conferences; information gathering 7 hrs @ ****** = ****** ****** ** Technical information gathering 2 hrs @ ****** = ***** ******** ****** Pricing information gathering 2 hrs @ ****** = ***** ***** ******** Preparing copies of documents 3.5 hrs @ ****** = ***** Subtotal ******* Reproduction Costs Document (proposal) reproduction = 142.10 Labor Overhead Standard WIN Rate ******* x *** = ****** Subtotal $******** G&A Standard WIN Rate ********* x *** = ***** Total ********** Protester's Application for Payment of Costs, Exhibit 3 at 1, 3. WIN did not submit any timesheets or other documents which detail the particular services performed by in-house personnel by specific date. WIN submitted a certification by its vice president that the amount of in-house personnel costs listed was "true and correct." Id. at 4. This is insufficient. Under the Board's rules, an application for costs shall: [b]e accompanied by an exhibit fully documenting any fees or expenses being sought . . . . The date and a description of all services rendered or costs incurred shall be submitted by each professional firm or individual whose services are covered by the application, showing the hours spent in connection with the proceeding by each individual, a description of the particular services performed by specific date, the rate at which each fee has been computed, any expenses for which reimbursement is sought, and the total amount paid or payable by the applicant on account of the sought-after costs. . . . The Board may require the applicant to provide vouchers, receipts, or other substantiation for any costs claimed. Rule 35(c)(3). Here, there is no contemporaneous record of the in-house activities associated with the pursuit of this protest; only "individual recollections" are provided. Nor is there a description of particular services by specific date. As this Board has held, a certification by an applicant's officer that the costs claimed were actually incurred is insufficient to overcome the absence of contemporaneous documentation. Sterling Federal Systems, Inc. v. National Aeronautics Space Administration, GSBCA 10000-C-REM(9835-P), 95-1 BCA 27,575, at 137,428, 1995 BPD 65, at 15. The 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., slip op. at 4; Sytel, Inc., 96-1 BCA 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). Decision WIN's application is GRANTED IN PART in the amount of $39,950.01. This sum shall be paid, without interest, from the permanent indefinite judgment fund, 31 U.S.C. 1304 (1994). 40 U.S.C. 759(f)(5)(C) (1994). __________________________ MARY ELLEN COSTER WILLIAMS Board Judge We concur: __________________________ __________________________ STEPHEN M. DANIELS ANTHONY S. BORWICK Board Judge Board Judge