___________________________________________________ MOTION FOR COSTS GRANTED IN PART: October 29, 1998 ___________________________________________________ GSBCA 11623-C(11477-P) GOVERNMENT TECHNOLOGY SERVICES, INC., Protester, v. GENERAL SERVICES ADMINISTRATION, Respondent. Richard J. Conway, William M. Rosen, and Sheila Stark of Dickstein, Shapiro & Morin, Vienna, VA, counsel for Protester. John C. Sawyer, Roger D. Waldron, and John E. Cornell, Personal Property Division, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges LaBELLA, HENDLEY, and HYATT. HENDLEY, Board Judge. On December 2, 1991, Government Technology Services, Inc. (GTSI), moved this Board to recover protest costs totalling $120,000. The protester's motion is GRANTED IN PART. Background On April 30, 1991, the respondent, the General Services Administration (GSA), issued Quick Response Proposal Request (QRP) number GSC-OIT-0535 to procure for the Department of the Treasury, Internal Revenue Service (IRS), various equipment and services concerning electronic filing systems at certain IRS Service Centers. On September 30, 1991, we docketed a protest filed by GTSI. GTSI protested the award by GSA of contract number K0091AJ0626, to Network Management, Inc. (NMI). Both NMI and the IRS timely intervened on the side of the respondent. The protester contended in its complaint "that the award was improper as a result of improper evaluation by the Government of NMI's non-responsive offer, in violation of evaluation criteria as stated in the solicitation and in violation of . . . the Federal Acquisition Regulation (FAR) and Federal Information Resources Management Regulation (FIRMR)." On November 4, 1991, we received a stipulation of settlement, signed by all the parties. The parties agreed, in part, as follows: 18. GTSI is the prevailing party as to Count I of its protest. 19. GTSI, as the prevailing party, is entitled to protest costs, including reasonable attorneys' fees, that are permissible under Rule 35 of the Board's Rules of Procedure; however, such protest costs, including attorneys' fees, to be reimbursed to GTSI by the Government shall not exceed $120,000. GTSI shall not seek reimbursement for attorneys' fees incurred after November 1, 1991 except to the extent such attorneys' fees are incurred for matters directly related to the recovery of protest costs, including but not limited to preparing the Application for Protest Costs. 20. NMI and GTSI shall bear their own bid proposal preparation costs. 21. Upon dismissal of the Protest, GSA will promptly terminate for convenience Contract No. K0091AJ0626 awarded to NMI. 22. Upon dismissal of the Protest, GSA and IRS shall review the QRP to ensure that it reflects the IRS' actual needs, and amend the QRP as needed. Thereafter, GSA shall request another round of BAFOs [Best and Final Offers]. All parties that submitted offers in response to QRP GSC-01T-0535 [sic] may submit another round of BAFOs in response to the QRP, as subsequently amended. Accordingly, this Board dismissed GTSI's protest on November 12, 1991. Discussion The protester, GTSI, moved, pursuant to Rule 35 of the Rules of Procedure of the General Services Administration Board of Contract Appeals, the Stipulation of Settlement of November 1, 1991, and our Order of Dismissal dated November 12, 1991, for award of its protest costs, including reasonable attorney fees. Under the Brooks Act, 40 U.S.C. 759(f)(5)(B), (C) (1988), this Board is empowered to award protest costs, including reasonable attorney fees, and bid or proposal costs to an appropriate interested party when it is determined that "a challenged agency action violates a statute or regulation or the conditions of any delegation of procurement authority." GSA has agreed that the protester "is the prevailing party as to Count I of its protest." Count I sets out facts which the parties, including the awardee NMI, have agreed constitute a violation of statute and regulation. We accept those facts as admitted and also find that the facts forming the basis of Count I constitute such a violation. GSA has indicated to us that it has no objections to the granting of the protester's motion for award of its costs of pursuing its protest. Respondent's Reply to Protester's Supplement to Rule 35 Motion for Award of Protest Costs, Including Reasonable Attorneys' Fees and Motion Preparation Costs at 1. While we grant the protester's motion for costs, we do not award those costs that are prohibited from being recovered by our decision in Sterling Federal Systems, Inc. v. National Aeronautics and Space Administration, GSBCA 1000-C(9835-P), 92-3 BCA 25,118, 1992 BPD 141, appeal docketed, No. 92-1552 (Fed. Cir. Sept. 28, 1992) and its progeny. In Sterling Federal, a case which was considered by the full Board, a majority of Board members ruled that this Board was precluded from awarding expert consultant fees and in-house corporate salaries, including related overhead. Id. We have applied this holding retroactively; therefore, Sterling Federal governs the case before us. See Lockheed Missiles and Space Co. v. Department of the Treasury, GSBCA 11604-C(11362-P), 1992 BPD 276 (Sept. 30, 1992). The protester has documented that it retained Dr. Ashok Agrawala to provide expert consultant services during the course of the protest. The costs of these services were shown to be $6,868.10. GTSI seeks recovery of these costs. Sterling Federal requires us to deny recovery of such costs. 92-3 BCA at 125,220- 21, 1992 BPD 141, at 8-9; see also Sysorex Information System, Inc. v. Department of the Treasury , GSBCA 10781-C(10642-P)-REIN, 1992 BPD 235, at 4 (Sept. 8, 1992) (denying the recovery of expert consultant costs). Since there is no indication that Dr. Agrawala was ever used as a witness, the amount denied includes amounts allotted to Dr. Agrawala's travel, purchase of his book, and his parking. See Sterling Federal, 92-3 BCA at 125,222, 1992 BPD 141, at 11 (noting that the protester is entitled to witness fees, together with a per diem allowance for those witnesses, but denying such fees to non-witnesses). In addition, GTSI has itemized in great detail the amounts it has expended for six employees in pursuit of this protest. GTSI also seeks recovery of these costs. In Sterling Federal, the protester sought recovery of in-house labor expenses, including "direct labor costs," and "fringe cost of direct labor," id. at 125,221, 1992 BPD 141, at 9, 10, which we denied in their entirety, stating: [g]iven the narrow holding of [the Supreme Court in West Virginia University Hospitals, Inc. v. Casey, 111 S.Ct. 1138 (1991), absent a straightforward legislative indication that expert fees and in-house labor costs may be recovered, we believe we are not authorized to make such an award. Id. at 125,222, 1992 BPD 141, at 11. Therefore, we cannot award in-house salaries and related costs to GTSI. Furthermore, we note that although it appears from the diaries of GTSI's employees that many of these workers performed legal type work in pursuit of this protest, there has been no attempt by GTSI to fit these employees into the rubric of Electronic Data System Federal Corp. v. Department of Energy, GSBCA 10386-C(10100-P)-REIN (Jan. 8, 1993). In Electronic Data, we allowed the protester to recover some of its labor costs despite Sterling Federal because the work was "legal work" performed in pursuit of the protest by the protester's inside counsel and inside counsel's support staff. Id. at 2. Here, GTSI has not established that the "legal work" performed by its employees was in fact performed by inside counsel. Hence, we apply the proscription of Sterling Federal. Thus, Sterling Federal requires us to deny GTSI's costs of $18,178.17 in employee salaries and related G&A/Overhead costs expended in pursuing this protest. See also Rocky Mountain Trading Co. v. Department of the Army, GSBCA 11033-C(10879-P), slip op. at 3 (Jan. 14, 1993) (denying the recovery of in-house labor costs expended pursuing the protest). The remainder of the costs requested by GTSI are: $ 81,014.00 Attorney Fees $ 15,239.35 Disbursements -------------------------- TOTAL $ 96,253.35 As already noted, the respondent has indicated its agreement to the reasonableness of these costs. Respondent's Reply to Protester's Supplement to Rule 35 Motion for Award of Protest Costs, Including Reasonable Attorneys' Fees and Motion Preparation Costs at 1. We also find these costs to be reasonable, and hence grant them. Decision Protester's motion for costs is GRANTED IN PART in the amount of $96,253.35, as follows: $ 81,014.00 Attorney Fees $ 15,239.35 Attorney Disbursements ($22,107.45 minus $6,868.10 in consultant expenses) We deny GTSI's request for $6,868.10 in consultant expenses and $18,178.17 in in-house labor costs. ____________________________ JAMES W. HENDLEY Board Judge We concur: ____________________________ ____________________________ VINCENT A. LaBELLA CATHERINE B. HYATT Board Judge Board Judge