THIS OPINION WAS INITIALLY ISSUED UNDER
                 PROTECTIVE ORDER AND IS BEING RELEASED
            TO THE PUBLIC IN ITS ENTIRETY ON AUGUST 18, 1994
          ____________________________________________________
        
           DISMISSED FOR LACK OF JURISDICTION:  July 27, 1994
          ____________________________________________________
 
 
                         GSBCA 11863-C(11498-P)
 
 
                        NETWORK SOLUTIONS, INC.,
 
                                                Protester,
 
                                   v.
 
                      DEPARTMENT OF THE AIR FORCE,
 
                                                Respondent.
 
        Richard J.  Conway, James  C. Hughes,  William F.  Savarino,
   J. Andrew  Jackson, and  C. Patteson  Cardwell  IV of  Dickstein,
   Shapiro & Morin,  Vienna, VA; and Michele R.  Cappello of Network
   Solutions, Inc., Herndon, VA, counsel for Protester.
 
        Clarence  D.  Long,   III,  Joseph  M.  McDade,   Joseph  M.
   Goldstein,  and Keith  Davis,  Office  of  the  General  Counsel,
   Department   of  the  Air  Force,  Washington,  DC,  counsel  for
   Respondent.
 
   Before      Board      Judges      HYATT,      WILLIAMS,      and
   DeGRAFF.[foot #] 1
 
   WILLIAMS, Board Judge.
 
                               Background
 
        Network  Solutions, Inc. (NSI) and PRC, Inc. (PRC) protested
   on  multiple  grounds  the Department  of  the  Air  Force's (Air
   Force's) award of the local area networks for systems engineering
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1     Board Judge Vincent  A. LaBella,  who was  on
   the panel  in  this  case, died  on  April 11, 1994.    A  random
   selection from the  remaining judges resulted in  his replacement
   by Board  Judge Robert W.  Parker.  Due  to an  extended absence,
   Judge Parker was replaced by Board Judge Martha H. DeGraff, via a
   random selection.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   installation and  integration (LAN  SEII) contract to  Electronic
   Data   Systems   Corporation   (EDS).[foot #] 2       The   Board
   granted the  protests on April  30, 1992, finding that:   (1) the
   Air  Force had  performed  an erroneous  cost/technical  tradeoff
   analysis, (2) EDS had  an unfair competitive advantage  by virtue
   of  its prior  performance of  a  LAN installation  similar to  a
   "sample task" which  was part of the evaluation,  and (3) PRC was
   wrongly downgraded for proposing  products from General  Services
   Administration (GSA) schedule contracts, when such  products were
   acceptable and PRC could not use Air Force requirements contracts
   available  to  other  offerors due  to  its  inability to  obtain
   alleged  proprietary information.    Network  Solutions, Inc.  v.
   Department  of the  Air Force,  GSBCA  11498-P, et al.,  92-3 BCA
     25,083,  1992 BPD    131,  vacated  sub  nom.  Electronic  Data
   Systems  Corp. v.  Rice, 988  F.2d 128  (Fed. Cir.  1992) (table)
   (text in Westlaw, 1992 WL 436547).  In granting the  protests, we
   revised  the Air Force's  delegation of procurement  authority as
   follows:
 
 
        [T]he  Air  Force  shall  revise  its  solicitation  to
        incorporate  a   neutral  sample  task,   refrain  from
        downgrading  offerors  who,  due to  unavailability  of
        alleged proprietary information were unable to  use Air
        Force requirements  contracts, and proceed  to evaluate
        offerors  and make  award in  accord  with statute  and
        regulation.   The Air Force may, in resoliciting, waive
        the  organizational conflict  of interest rules  in FAR
        9.5,   if  such  can  be  justified  under  FAR  9.503.
        Finally, the Air Force may acquire the government's LAN
        SEII  requirements  in  any  manner,  consistent   with
        statute, regulation, and its DPA.
 
   Network Solutions, Inc., 92-3 BCA  at 125,049, 1992 BPD   131, at
   55.
 
        On May  29, 1992,  NSI filed a  motion for  reimbursement of
   costs     incurred     in     protesting     the     LAN     SEII
   procurement.[foot #] 3     On  August   17,  1992,   NSI  entered
   into  a joint  stipulation with  the  Air Force  under which  the
   parties  agreed that the  United States would "pay  the Protester
   $460,000.00 from the  permanent indefinite judgment fund  in full
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 2     NSI and PRC filed their protests on October 7
   and  October 18, 1991,  respectively.   NSI  intervened in  PRC's
   protest, and  EDS intervened  in both protests.   By  order dated
   October 23, 1991, the Board consolidated the protests.
 
        [foot #] 3     As reflected  in supplements to  the original
   cost motion, NSI  claimed total protest costs of  $826,216.  This
   amount  includes  NSI's  proposal preparation  costs  as  well as
   attorney fees and expenses incurred in preparing the cost motion.
   Supplement II to  Rule 35 Motion of Protester  Network Solutions,
   Inc., for Award of Protest Costs dated August 17, 1992, at 5.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   and  final  satisfaction  of  Protester's  costs  of  filing  and
   pursuing the Protest.  . . ."   Joint Stipulation of NSI  and Air
   Force (Joint Stipulation) (August 17, 1992)   8.  The parties had
   not  reached an  agreement over  the  $243,583.84 NSI  sought for
   proposal  costs,  and  they  jointly  requested  a  stay  of  all
   proceedings  in connection  with  those  costs.   Id.    7.   The
   stipulation further stated:
 
 
        Protester substantially prevailed in Network Solutions,
        Inc.  and PRC,  Inc. v.  Department of  the Air  Force,
        GSBCA Nos.  11498-P,  11532-P  (May  11,  1992).    The
        Board's Decision materially altered the parties'  legal
        relationship in  a  manner  which  Congress  sought  to
        promote  in  enacting  the  fee  statute.    40  U.S.C.
          759(f)(5)(C).
 
   Id.    1.     The  parties  agreed  that  they   would  not  seek
   reconsideration of, or appeal  from, the Board's decision of  the
   protest.  Id.   9.
 
        On  August 28,  1992,  EDS  appealed  the  Board's  decision
   granting the protests  of NSI and PRC to  the United States Court
   of     Appeals     for    the     Federal     Circuit    (Federal
   Circuit).[foot #] 4  PRC intervened in the appeal.
 
        On September 14,  1992, the Air Force canceled  the LAN SEII
   procurement by announcement in the Commerce Business Daily (CBD).
   The   CBD  announcement  indicated  that  the  project  had  been
   "redefined  and incorporated into  the ULANA [Unified  Local Area
   Network Architecture] II acquisition" which had "been delayed due
   to a  rebaselining of  requirements and  specifications."   NSI's
   Brief entitled "Vacatur  of the Board's Protest Decision Does Not
   Preclude  Network Solutions from  Recovering its Protest  and Bid
   and  Proposal Preparation Costs"  (NSI's Brief on  Vacatur) at 8.
   On October 16, 1992,  PRC, an intervenor in the  appeal, moved to
   dismiss  EDS'   appeal  as  moot,   arguing  that,  due   to  the
   cancellation, neither  EDS nor  any other  offeror would  receive
   award of the  LAN SEII contract.   PRC further argued  that while
   the  appeal was moot, the NSI and PRC cost cases remained "alive"
   before this Board.
 
        The  Federal Circuit  found that  the appeal  was moot,  and
   ruled in an unpublished order on December 2,  1992, that "[u]nder
   [United States  v.]  Munsingwear[,  Inc.], 340  U.S.  [36]  at 39
   [(1950)], the proper disposition of this appeal is vacatur of the
   Board's decision and  remand with a direction  to dismiss [PRC's]
 
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 4     The Board informed the  parties that it could
   not  act  on  the  cost  motion while  the  appeal  was  pending.
   Conference Memorandum at 2 (Sept. 22, 1992).
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   complaint."[foot #] 5     Electronic   Data   Systems  Corp.   v.
   Rice, No. 92-1151, 1992 WL  436547 (Fed. Cir. Dec. 2, 1992).  The
   order further stated:
 
 
        (1) PRC's motion to dismiss is denied.
        (2)  [PRC's]  motion  for  leave to  file  a  reply  is
        granted.
        (3) The  GSBCA's April 30, 1992 decision  in GSBCA Nos.
        11498-P and 11523-P is  vacated.  The case is  remanded
        to  the  GSBCA  with   directions  to  dismiss  [PRC's]
        complaint.
        (4) Each side shall bear its own costs. 
 
   Id.
 
        On December 28, 1992, PRC filed a "Petition for Rehearing to
   Clarify  the Court's  December 2, 1992  Order, and  Suggestion of
   Rehearing en Banc" (PRC's Petition for Rehearing).  Specifically,
   PRC  requested that the  appellate court clarify  its December 2,
   1992, order by adding the following footnote:  "This Order is not
   to be  taken as affecting  the right of  Protesters PRC  Inc. and
   Network  Solutions, Inc. to recover protest and proposal costs as
   prevailing parties under the Brooks Act, 40 U.S.C.   759."  PRC's
   Petition for Rehearing at  2.  PRC pointed  out that EDS'  appeal
   did not address PRC's or  NSI's entitlement to recover legal fees
   or proposal costs.  Id.
 
        In  the alternative, PRC sought a rehearing en banc.  In its
   Suggestion for Rehearing En Banc, PRC requested that the Court of
   Appeals address  "the  following precedent  setting  question  of
   exceptional importance":
 
        Whether  vacatur of a decision sustaining a bid protest
        by  the   General  Services  Administration   Board  of
        Contract   Appeals,  based  on   lack  of  a   case  or
        controversy due to mootness of the appeal arising after
        the date of the Board's decision, could be misconstrued
        to deny the  successful protester its right  to recover
        protest and  proposal costs  under the  Brooks Act,  40
        U.S.C.   759.
 
   Petition for Rehearing at 11.
 
        By  order dated  January  21,  1993,  the Court  of  Appeals
   summarily  denied PRC's  petition for  rehearing  to clarify  the
   order, stating:
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 5     This order  directed  the  Board  to  dismiss
   "EDS' complaint," but by order dated December 15, 1992, the Court
   corrected  this clerical error  and directed dismissal  of "PRC's
   complaint."
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        Upon consideration of PRC's  petition for rehearing  of
        the court's December 2, 1992, order
          IT IS ORDERED THAT :
          PRC's petition for rehearing is denied.
 
   Electronic Data  Systems Corp.  v. Rice,  No. 92-1511  (Fed. Cir.
   Jan. 21, 1993).  
 
        On February 2, 1993,  the Court denied PRC's suggestion  for
   rehearing en banc, stating:
 
             A  suggestion for  rehearing in  banc having  been
        filed by the INTERVENOR,
 
             UPON CONSIDERATION THEREOF, it is
 
             ORDERED that the suggestion  for rehearing in banc
        be, and the same hereby is, DECLINED.
 
   Electronic Data Systems v.  Rice, No. 92-1511 (Fed. Cir.  Feb. 2,
   1993).
 
        Upon  remand,  we dismissed  the  protests of  PRC  and NSI.
   Network  Solutions,  Inc.   v.  Department  of  the   Air  Force,
   GSBCA 11498-P-REM, et al., 1993 BPD   45 (Feb. 10, 1993).
 
                               Discussion
 
        This cost  case arises in  an unusual posture.   The parties
   have signed  a stipulation and  ask the  Board to enter  an order
   consistent  with their  stipulation  and  award  costs  from  the
   permanent   indefinite   judgment   fund.[foot #] 6      However,
   the Board's underlying decision granting the protests was vacated
   by the  Court of Appeals for the Federal  Circuit, as a result of
   the Circuit's determination that the appellate case was moot.  We
   are thus confronted with the  novel question of whether the Board
   may award costs when the underlying decision granting the protest
   has been vacated.  Because we may  award costs only after we find
   a violation  of law, regulation,  or a delegation  of procurement
   authority, and the Circuit's vacatur rendered our finding of such
   violation in this  protest a nullity, we conclude that  we lack a
   necessary  predicate for awarding  costs.  Therefore,  we dismiss
   NSI's cost case for lack of jurisdiction.
 
   The Circuit's  Vacatur of the Board's Decision Prevents the Board
   from Awarding Costs
 
        Upon  determining that EDS'  appeal was moot,  our appellate
   authority  relied  upon  United  States   v.  Munsingwear,  Inc.,
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 6   The  parties  cannot obtain  payment  from  the
   permanent  indefinite   judgment  fund  absent   a  Board  order.
   40 U.S.C.   759(f)(5)(C); 31 U.S.C.   1304.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   340 U.S. 36 (1950),  in vacating  this Board's decision  granting
   the protests of NSI and PRC.  The Court stated:
 
 
        Given  the Air Force's  announcement that the  LAN SEII
        procurement  has  been   incorporated  into  a   future
        acquisition,  we agree  with PRC  that  EDS' appeal  is
        moot.   Under Munsingwear,  340 U.S. at  39, the proper
        disposition  of this appeal  is vacatur of  the Board's
        decision and remand with a direction to dismiss [PRC's]
        complaint.
 
   Electronic  Data Systems Corp. v. Rice,  1992 WL 436547 (emphasis
   added).
 
        The Court in Munsingwear held that when a civil case becomes
   moot pending an appellate tribunal's decision on  the merits, the
   "standard  disposition"  is  to "vacate  the  judgment  below and
   remand with  a direction to dismiss."   340 U.S. at 38  n.1.  The
   Court explained:
 
        That procedure clears the path  for future relitigation
        of  the issues  between the  parties  and eliminates  a
        judgment,  review  of   which  was  prevented   through
        happenstance.
 
        . . . .
 
        Our supervisory power  over the judgments of  the lower
        federal courts . . . is  commonly utilized in precisely
        this situation  to  prevent  a  judgment,  unreviewable
        because   of   mootness,   from  spawning   any   legal
        consequences.
 
   Id. at 40-41 (emphasis added).
 
        In  its order  vacating our  decision,  the Federal  Circuit
   expressly  recognized  that  PRC  had  argued  that  the  Board's
   decision "should be  undisturbed to protect the right  of PRC and
   [NSI]  . . . promptly  to obtain reimbursement  of legal fees and
   expenses  to  which they  are  entitled  under  the Brooks  Act."
   Electronic   Data  Systems  Corp.   v.  Rice,  1992   WL  436547.
   Nevertheless, the Court's vacatur order  made no mention that the
   parties  could pursue their  cost cases.   Rather,  when formally
   asked to clarify  its order to  acknowledge protesters' right  to
   pursue fees,  our appellate authority  declined to do  so without
   elaboration.    The Federal  Circuit  thus  did not  qualify  its
   vacatur order as PRC requested and as other courts have done, but
   instead  directed this  Board to dismiss  protesters' complaints.
   See,  e.g., Crowell v.  Mader, 444 U.S. 505  (1980) ("[W]e direct
   that the  judgment  of  the District  Court  be  vacated  without
   prejudice to  such further proceedings  in the District  Court as
   may  be appropriate.") (citation  omitted).  In  the alternative,
   the Court might  have dismissed the  appeal without vacating  the
   Board's  judgment.    See, e.g.,  Constagny,  Brooks  &  Smith v.
   National Labor Relations Board, 851 F.2d 839, 842 (6th Cir. 1988)
   ("It would be  particularly inappropriate to vacate  the district
   court's order . . . in  light of appellee's motion for attorney's
   fees  pending before  the district  court,  disposition of  which
   joins  in issue Constagny's success  in pursuing the action . . .
   in  the trial court."); cf. Williams v. Alioto, 625 F.2d 845, 848
   (9th Cir.  1980) ("We  dismissed only the  appeal as moot  in our
   prior decision, not the entire action.  Appellees were  therefore
   free  to  apply  for attorneys'  fees  in  the  district court.")
   (citing Crowell v. Mader.), cert denied, 450 U.S. 1012 (1981).
 
 
        Indeed,  our appellate  authority  recently recognized  that
   although  vacatur of  a  judgment  is the  general  rule in  this
   Circuit  when a  case  becomes  moot on  appeal,  vacatur is  not
   automatic  under  all  circumstances.    U.S.  Philips  Corp.  v.
   Windmere  Corp.,  971  F.2d  728,  731  (Fed. Cir.  1992),  cert.
   granted,  113 S.  Ct.  1249,  cert.  dismissed  as  improvidently
   granted sub.  nom. Izumi  v. U.S. Philips  Corp., 114 S.  Ct. 425
   (1993), reh'g denied, 114 S. Ct. 904 (1994).  The Federal Circuit
   stated:
 
        This court  has held  that vacatur of  the judgment  at
        trial  is appropriate when  settlement moots the action
        on appeal.   Federal  Data Corp.  v. SMS  Data Products
        Group, Inc., 819  F.2d 277, 280 (Fed.Cir.  1987); Smith
        Int'l, Inc.  v. Hughes Tool  Co.; 839 F.2d 663,  664, 5
        USPQ2d  1686, 1687 (Fed.Cir. 1988).  Authority is found
        in  United States  v. Munsingwear,  Inc., 340  U.S. 36,
        39-40, 71 S.Ct.  104, 106-107, 95  L.Ed. 36 (1950)  and
        Duke Power Co. v. Greenwood County, 299 U.S.  259, 267,
        57 S.Ct. 202,  205, 81 L.Ed. 178 (1936),  which provide
        that  judgments should in  general be vacated  when the
        case becomes moot.
 
   Id.
 
        While the  Court of Appeals  in U.S. Philips  concluded that
   vacatur  was appropriate there, where the settlement included all
   parties to  the appeal and  all claims had become  entirely moot,
   the Court reiterated:   "Although in the Federal  Circuit vacatur
   is the general rule,  we do not hold that vacatur  must always be
   granted whatever the  circumstances."  U.S. Philips,  971 F.2d at
   731.   Here,  having  considered  the  circumstances,  the  Court
   decided that vacatur was warranted.
 
        As the  United States Court of  Appeals for the  District of
   Columbia has recognized: "[t]o 'vacate' . . . means 'to annul, to
   cancel  or rescind; to  declare, to make, or  to render, void; to
   defeat, to deprive of force; to make of no authority or validity;
   to  set  aside.'"    Action   on  Smoking  and  Health  v.  Civil
   Aeronautics Board, 713 F.2d 795,  797 (D.C. Cir. 1983) (citations
   omitted).   The rights  of  the parties  are  left as  though  no
   judgment had been entered.[foot #] 7
 
 
        Although  we  recognize  that the  Federal  Circuit  has not
   reviewed  the underlying  protest  decision  on  the  merits  and
   vacated it due to an  affirmative disagreement with our decision,
   we believe that  the Court's vacatur has the  effect of stripping
   the decision of its precedential  effect and that it prevents the
   opinion of the  lower tribunal from  being the  law of the  case.
   County  of Los Angeles  v. Davis,  440  U.S. 625,  634, 646  n.10
   (1979).
 
        Because the Federal  Circuit did not qualify its  vacatur of
   our decision  and directed the  Board to dismiss the  protest, we
   are left with no statutory basis for awarding costs.
 
        The Brooks Act provides in pertinent part:
 
        (B)  If 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, the board may suspend,
        revoke, or  revise  the procurement  authority  of  the
        Administrator  or  the  Administrator's  delegation  of
        procurement  authority  applicable  to  the  challenged
        procurement.
 
        (C) Whenever the  board makes such a  determination, it
        may,  in  accordance  with section  1304  of  title 31,
        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 #] 7     As one commentator has recognized:
 
             The  Supreme  Court  appears  to  have  adopted  a
             relatively  simple approach  to  the treatment  of
             decisions  moot on  appeal.   As  a general  rule,
             judgments  in such cases are vacated and the cases
             are   remanded  for   dismissal,  at   least  when
             requested by a party.  Through this disposition, a
             lower  court's decision is purged of all its legal
             consequences, including  collateral estoppel,  res
             judicata, law of the case and stare decisis.
 
   A.  F.  Greenbaum, Mootness  on  Appeal  in  Federal Courts:    A
                      ______________________________________________
   Reexamination  of  the  Consequences  of  Appellate  Disposition,
                   ----------- FOOTNOTE BEGINS ---------
   17 U.C. Davis L. Rev. 7, 101 (1983).
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   40  U.S.C.   759(f)(5)(B),  (C) (1988).   Thus,  under the  plain
   language  of  the  Act, the  Board  must  find a  violation  as a
   necessary  predicate to awarding  a protester recovery  of costs.
   International  Data  Products  Corp.  v.  Department  of Justice,
   GSBCA 10403-C(10302-P), 93-2  BCA   25,606, at 127,466,  1992 BPD
     328, at 5.
 
 
        NSI has lodged three arguments  in support of its motion for
   costs.  NSI  Brief on Vacatur at 11-12.  First, NSI contends that
   the  joint  stipulation  of  settlement  is  an  admission  of  a
   violation  and  is  enforceable  despite  the  Federal  Circuit's
   vacatur order.  Id. at 12-17.  Second, NSI argues that the Brooks
   Act authorizes the award of attorney fees even in the face of the
   Federal  Circuit's vacatur  order.   Id.  at 17-26.   Third,  NSI
   argues  that under cases  construing the Civil  Rights Attorneys'
   Fees  Awards Act,  42 U.S.C.    1988,  vacatur of  a lower  court
   decision has no impact upon a prevailing party's right to recover
   its attorney fees.  Id. at 26-38.  The Air Force represented that
   it   would  not  argue  against  enforcement  of  the  settlement
   agreement and would only seek clear guidance from the Board as to
   its current enforceability.   Air Force's Brief  on Applicability
   of the  Federal Circuit's  Vacatur Order  on Protesters'  Pending
   Motions for Costs (Air Force Brief on Vacatur) at 4.  As to costs
   not included in the settlement,  the Air Force vigorously opposes
   any award on the ground that vacatur precludes an award.   Id. at
   4-8; Respondent's Surrebuttal  to Reply Briefs by NSI  and PRC on
   Vacatur Issue.
 
   Does  the  Stipulation Entitle  NSI to  Recoup Its  Costs Despite
   Vacatur of the Board's Decision?
 
        NSI  contends  that   the  Air  Force's  admission   in  the
   stipulation  that  "protester  substantially  prevailed  in  [the
   underlying protests]," conclusively establishes NSI's entitlement
   to costs.  NSI Brief on Vacatur at 12.  We disagree.
 
        In the stipulation, the Air Force concedes the obvious:  NSI
   substantially  prevailed in the  protest.  The  stipulation cites
   the  Board's decision and is  premised on that  decision.  At the
   time  the stipulation was  entered, the Board's  decision had not
   been  vacated.   The  Air Force  does not  concede  that NSI  was
   entitled to prevail  due to a violation of  statute or regulation
   or the conditions of the Air Force's procurement authority.
 
        The stipulation  provides that NSI's costs will be paid from
   the  permanent indefinite judgment  fund of the  United States --
   not from funds of  the Air Force.  The Air  Force, however, lacks
   the authority to effect payment from this fund.   Only a judgment
   by  an appropriate  tribunal such  as the  Board can  effect such
   payment.   40 U.S.C.   759(f)(5)(C);  31 U.S.C.   1304.   We have
   recognized  that  a "stipulation  of  the  parties is  not  self-
   effectuating and  does  not remove  from the  Board's docket  the
   issue  of entitlement  to the  costs of  filing and  pursuing the
   protest."   Federal Computer Corp.,  GSBCA 10527-C(10389-P), 92-1
   BCA   24,415, at 121,874, 1991 BPD   222, at 3.
 
 
        Contrary  to  NSI's  assertion,  the  stipulation  does  not
   conclusively establish that NSI is entitled to recover its costs.
   Instead,  the stipulation establishes only that NSI could recover
   its costs if  the Board were to  enter an order awarding  NSI its
   costs.  The "if" constitutes a condition that cannot be fulfilled
   because the Court vacated the  merits decision and directed us to
   dismiss  the protest  complaint.    In the  absence  of a  merits
   decision in NSI's  favor, we have no authority  to enter an order
   awarding NSI  its costs.   Once the Board's finding  of violation
   was  vacated, the  Board  no  longer had  a  statutory basis  for
   declaring NSI to be entitled to an award of any costs.  Moreover,
   our appellate authority directed the Board to dismiss the protest
   complaint,   thus   removing   the   case   from    the   Board's
   docket.[foot #] 8
 
        NSI  further argues that  the Federal Circuit's  decision in
   Federal Data Corp. v. SMS Data Products Group, Inc., 819 F.2d 277
   (Fed. Cir.  1987),  requires   that  the  joint  stipulation   be
   enforced.  NSI's Brief on Vacatur at 13-16.  There, the Board had
   granted SMS' protest  and invalidated the  award to Federal  Data
   Corporation  (FDC), but had refused to direct  award to SMS.  FDC
   and  SMS appealed and  cross-appealed from the  Board's decision.
   These parties settled  and moved for  voluntary dismissal of  the
   appeals, and the Court dismissed the appeals.  FDC, SMS,  and the
   agency then moved the Board to dismiss SMS' protest.  Because the
   Board took no  action on the motion,  FDC and SMS  re-noticed the
   appeal and  moved for  voluntary dismissal  conditioned upon  the
   Court's directing  the Board to  dismiss the protest.   After the
   appeal was re-noticed,  the Board denied  the parties' motion  to
   dismiss, which  it viewed  as including a  request to  vacate its
   decision on the merits.
 
        In  Federal Data  Corp., the  Federal Circuit held  that the
   Board  had  abused its  discretion  by  failing to  dismiss  SMS'
   protest.   The  Circuit  noted  that the  parties  should not  be
   required to  continue litigating upon  settling their differences
   and directed the  Board "to dismiss SMS's protest  and vacate the
   decision in accordance  with the settlement agreement."  819 F.2d
   at 280.  Protester relies on Federal Data Corp. to argue that the
   Board should similarly  enforce the settlement agreement  in this
   cost case.  However, Federal Data Corp. is easily distinguishable
   from the case  at hand.  Here, the Board is not refusing to grant
   a  motion  to dismiss,  based  upon  settlement by  the  parties.
   Rather,  the Board  is  refusing  to give  effect  to its  merits
   decision,  which was  vacated  by the  Federal  Circuit when  the
   appeal  became moot.   Federal  Data Corp.  does not  support the
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 8     Had  the Board's  decision in  the underlying
   protests been vacated  on the merits, there would  be no question
   that protesters were no longer entitled to costs.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   suggestion that, after vacatur of the Board protest decision, the
   Board  is  able to  order payment  from the  permanent indefinite
   judgment fund -- that was not at issue in Federal Data Corp.
 
 
        Moreover, the Board is not forcing the parties to litigate a
   case they desire to settle on appeal.  The appeal has become moot
   by virtue of  the Air Force's decision to acquire the services at
   issue   under  a   larger  procurement,  not   by  virtue   of  a
   settlement.[foot #] 9     No   further   litigation   can   ensue
   since the Board  lacks the authority to consider  the cost motion
   because there  is no Board  decision which finds a  violation, or
   even  a  protest  whose settlement  includes  an  admission which
   materially alters the rights of the parties.
 
   Does the  Brooks Act Authorize  the Board to Award  Costs Despite
   the Vacatur?
 
        Secondly, NSI argues that the Brooks Act authorizes an award
   of  costs despite  vacatur of  the Board's  decision because  NSI
   prevailed  on  a  significant issue  and  attained  the principal
   result it sought in the  protest, i.e., cancellation of the award
   to  EDS.    While  we  agree  that  NSI  prevailed  in  the Board
   litigation  and  achieved  a significant  result  in  our protest
   decision,  that protest decision  was nullified by  the Circuit's
   vacatur order.  Had there been no appeal, it is obvious  that the
   Board would  have had the  authority to grant NSI  its reasonable
   reimbursable  costs.    We believe,  however,  that  it  would be
   illegal  for  this tribunal  to  continue  to  give effect  to  a
   decision  which  has been  vacated  and  to  allow that  case  to
   continue to spawn legal consequences when our appellate authority
   has  indicated that it should not.  The  fact that the  Air Force
   rolled  its LAN SEII requirements  into another procurement -- an
   action  which complied  with  the  Board's  decision  before  the
   decision was  vacated -- does not constitute a legal basis for an
   award of costs.
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 9     The Air Force stated:
 
             While  we did cancel  the procurement and  roll it
             into another . . . we respectfully contend that we
             did so, not to  render the case moot,  but because
             we   had  to  get  on  with  important  Air  Force
             business.  . . .  [T]he purpose of the procurement
             process  is to obtain  goods and services  for the
             government, not  to ensure  absolute fairness  and
             procedural cleanliness in the process itself.
 
   Air Force Brief on Vacatur at 7-8.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   Should the Board  Award Fees to NSI under  the "Prevailing Party"
   Case Law?
 
 
        In  its third argument,  NSI cites cases  applying the Civil
   Rights  Attorneys'  Fees   Award  Act,  42 U.S.C.   1988,   which
   conclude that tribunals  may award attorney fees  to a prevailing
   party even if the underlying judgment  is vacated.  NSI Brief  on
   Vacatur at  28-38.  NSI  contends that these cases  are pertinent
   because  the Board  construes the  fee-shifting  portions of  the
   Brooks Act pari  passu with other fee-shifting statutes  so as to
   promote  public policy.   Id. at 27.   Construing the  Brooks Act
   "pari  passu"  with  other statutes  is  neither  appropriate nor
   necessary here.  Our inquiry here is not an attempt to cipher the
   meaning  of an ambiguous statutory  provision or to determine how
   best to exercise our discretion in awarding fees.  Rather, we are
   addressing a threshold jurisdictional issue, i.e.,  our authority
   to award any  fees, a matter squarely and  singularly answered by
   the Brooks Act.  Because the Brooks Act clearly requires that the
   Board's  determination of  a  violation is  a  prerequisite to  a
   recovery  of  costs,  "there  is  no room  for  the  argument  of
   [protester]  drawn from  other [statutes]."    Greenport Basin  &
   Construction Co. v. United States, 260  U.S. 512, 516 (1923).  In
   Sterling  Federal Systems, Inc.  v. Goldin, the  Court recognized
   that  the Board's  cost-shifting authority  is  derived from  the
   Brooks Act alone and that the  limits of the Board's authority to
   award costs in  protest proceedings should be  construed entirely
   apart  from provisions prescribing the fee-shifting authority for
   federal    courts.      16    F.3d   1177,   1184    (Fed.   Cir.
   1994).[foot #] 10
 
        Further,  the "prevailing party" cases cited by NSI construe
   a  statute which,  unlike the  Brooks  Act, expressly  authorizes
   awarding  costs  to  a  "prevailing  party."    The  fee-shifting
   provision of Section 1988 states: "In any action or proceeding to
   enforce a provision  of sections 1981,  1981a, 1982, 1983,  1985,
   and 1986 of this title, . .  . the court, in its discretion,  may
   allow  the prevailing  party  other  than  the  United States,  a
   reasonable  attorney's  fee as  part of  the costs."  42 U.S.C.A.
     1988(b) (West Supp. 1994) (emphasis added).  Section  1988 thus
   does  not require  a  violation  of statute  or  regulation as  a
   prerequisite  to  a  fee  award.     As  the  Supreme  Court  has
   recognized: "[n]othing in  the language of   1988  conditions the
   District Court's  power  to  award  fees .  .  .  on  a  judicial
   determination  that the plaintiff's  rights have  been violated."
   Maher v.  Gagne, 448  U.S.  122, 129  (1980).   The  Brooks  Act,
   however,   expressly  conditions   an  award   of   costs  on   a
   determination of  an agency  violation by the  Board.   40 U.S.C.
     759(f)(5)(C).
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 10    The  Sterling Court  properly  refers to  the
                            ________
   Brooks Act as the Competition in Contracting Act.  This provision
   was added to the Brooks Act by the Competition in Contracting Act
   of 1984, Pub. L. No. 98-369, 98 Stat. 1175.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        Even if  one were  to look to  the Section 1988  cases, they
   would not be controlling here  because, as noted above, by virtue
   of the  Federal Circuit's vacatur,  there no longer is  a protest
   case  in which any  party prevailed.   Because NSI's  status as a
   "prevailing party"  is derived  from a  Board decision which  has
   become a  nullity, the  decision is of  no legal  consequence and
   cannot form a basis for awarding costs from the judgment fund.
 
        In  sum, vacatur of  our underlying decision  eradicated the
   legal predicate on  which this tribunal could  authorize an award
   of costs in this case.   We lack the authority to enter  an order
   awarding  costs  based  upon our  merits  decision,  because that
   decision has been vacated by the Court of Appeals.
 
                                Decision
 
        Protester's motion for the award of costs is DISMISSED  WITH
   PREJUDICE FOR LACK OF JURISDICTION.
 
                                                                   
                                     MARY ELLEN COSTER WILLIAMS
                                     Board Judge
 
   I concur:
 
 
 
   ____________________________
   MARTHA H. DeGRAFF
   Board Judge
 
 
   HYATT, Board Judge, dissenting.[foot #] 11
 
        The majority holds that  because the decision on  the merits
   of this protest was  vacated by the Federal Circuit,  we lack the
   necessary predicate for  awarding protest costs.   I respectfully
   dissent.  
 
        Network  Solutions, Inc. (NSI)  has filed for  protest costs
   incurred in pursuing its  protest of the  award of a contract  to
   Electronic   Data   Systems   Corporation   (EDS)   for   systems
   engineering, installation  and integration (SEII)  of local  area
   networks (LANs) by  the Air Force.  PRC, Inc.  also protested the
   award and the Board subsequently consolidated the protests.   The
   Board granted  the  protests,  holding  1)  that  the  Air  Force
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 11   This dissent was largely prepared  by the late
   Judge Vincent A.  LaBella, one  of  the original  panel  members,
   prior to his death in April 1994.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   performed an  erroneous cost/technical tradeoff analysis; 2) that
   EDS  had  an unfair  competitive advantage  because of  its prior
   performance of an actual LAN  installation which was similar to a
   "sample task" used  for evaluation purposes in  this procurement;
   and 3)  that PRC  was wrongly  downgraded for proposing  products
   from General  Services  Administration  schedule  contracts  when
   these products  were  acceptable and  PRC  was unable  to  obtain
   allegedly  proprietary   information  contained   in  Air   Force
   requirements contract  which  was available  to  other  offerors.
   Network Solutions,  Inc. v.  Department of  the Air  Force, GSBCA
   11498-P,  et  al., 92-3  BCA   25,083,  at 125,023-024,  1992 BPD
     131, at 2-3, vacated sub  nom. Electronic Data Systems Corp. v.
   Rice, 988  F.2d 128  (Fed. Cir. 1992)  (table) (text  in Westlaw,
   1992 WL 436547).
 
 
        Thereafter,  NSI entered into  a joint stipulation  with the
   Air  Force concerning  recovery  of  NSI's  protest costs.    The
   stipulation  stated that  "Protester  substantially prevailed  in
   Network Solutions,  Inc. and PRC,  Inc. v. Department of  the Air
   Force, GSBCA Nos.  11498-P, 11532-P (May 11, 1992).   The Board's
   Decision  materially altered the parties' legal relationship in a
   manner which  Congress  sought to  promote  in enacting  the  fee
   statute.   40 U.S.C.   759(f)(5)(C)."   Joint Stipulation  of NSI
   and Air Force (Aug. 17, 1992)   1.  The joint stipulation further
   stated that  the Government agreed  to pay $460,000 of  the costs
   claimed by NSI in full  and final satisfaction of NSI's costs  of
   filing and pursuing the protest.   Id.   8.  The parties did  not
   reach an agreement as  to $243,583.84 that NSI sought  in bid and
   proposal preparation  costs, and  they requested  that the  Board
   stay  all proceedings  connected  to NSI's  request  for bid  and
   proposal preparation  costs.  Id.    7.  The parties  also agreed
   that they would not seek  reconsideration of, or appeal from, the
   Board's decision.  Id.   9.
 
        EDS  appealed  the  Board's  decision  in  the  consolidated
   protests to the  Federal Circuit.  PRC intervened  in the appeal,
   but NSI and the Air Force did not.
 
        On September 14,  1992, the Air Force canceled  the LAN SEII
   procurement by announcement in the Commerce Business Daily (CBD).
   The  CBD   announcement  stated   that  the   project  had   been
   incorporated  into  the   ongoing  Unified  Local  Area   Network
   Architecture  II   (ULANA)  acquisition.     Following  the   CBD
   announcement, PRC moved the Court to dismiss EDS's appeal as moot
   contending that  no offeror would  receive award of the  LAN SEII
   contract because of the cancellation.   The Federal Circuit found
   the appeal was moot and ruled that the Board's decision should be
   vacated  and that,  on  remand, the  Board  should dismiss  PRC's
   protest.  Electronic Data Systems  Corp. v. Rice, 1992 WL 436547.
   Upon  remand, the Board dismissed  both PRC's and NSI's protests.
   Network Solutions,  Inc. v.  Department of  the Air  Force, GSBCA
   11498-P-REM, et al., 1993 BPD   45 (Feb. 10, 1993).
 
        The  Brooks Act  provides that  the  Board may  award to  an
   appropriate  interested  party  protest  and  bid   and  proposal
   preparation  costs when the Board determines  that the agency has
   violated a statute, regulation, or the conditions of a delegation
   of  procurement authority.  40 U.S.C.   759(f)(5)(B), (C) (1988).
   The Board has interpreted the term "appropriate interested party"
   to permit  recovery of  such costs by  a prevailing  party, i.e.,
   "one  that  has  succeeded  on  any  significant  issue  in   the
   litigation  that achieves  some  of  the  benefit  it  sought  in
   bringing suit."   Bedford  Computer Corp.,  GSBCA 9837-C(9742-P),
   89-2 BCA    21,827, at 109,811,  1989 BPD   121, at  3 (citations
   omitted).  A protester crosses the threshold of  prevailing party
   status  if it  can point  to a  resolution of  the  dispute which
   materially alters  the parties'  legal relationship  in a  manner
   which Congress sought to promote in the fee statute.  Id.
 
        The Board does  not automatically award fees  merely because
   the Government has admitted a violation in a settlement agreement
   or  because the  protester succeeded  on  an insignificant  issue
   which did not alter the  parties' legal relationship.  See, e.g.,
   Andersen  Consulting  v.   Department  of  the  Treasury,   GSBCA
   11070-C(10833-P)-REIN, 92-3 BCA   25,086, 1992 BPD   134; Bedford
   Computer Corp., 89-2 BCA   21,827,  1989 BPD   121.  At  the same
   time, the Board will not necessarily decline to award fees merely
   because there has been no hearing or decision on the merits.  The
   Board will independently examine the record to decide for  itself
   whether the protester  is a prevailing  party.  As  we stated  in
   Bedford Computer Corp.:
 
        With  respect to  the requirement  of  a violation  [40
        U.S.C.    759(f)(5)(B),(C)], . .  . we have  never read
        the  statute to require a  full hearing and decision on
        the  merits before  we  may award  costs,  but we  have
        required some minimum showing in the record,  such as a
        stipulation  by  the parties  that  the  respondent has
        violated a material statute, regulation, or  delegation
        of procurement  authority  (DPA) or  has provided  some
        benefit  to  the  protester,  materially  altering  its
        position in favor of full and open competition.
 
   89-2 BCA at 109,812, 1989 BPD   121, at 5.  This is because
 
        . .  . a plaintiff  who brings  an action  that has  no
        colorable, or even reasonable, likelihood of success on
        the merits is  not entitled to recover  attorney's fees
        if the  defendant simply complies  with the plaintiff's
        demands  and moots  the  case  for  reasons  that  have
        nothing to do with the potential merit of the suit.
 
   Hennigan v.  Ouachita Parish  School Board,  749 F.2d 1148,  1153
   (5th Cir. 1985).  
 
        As long as this predicate is met, the Board has held that it
   may  award costs  regardless  of  how  the  protest  is  actually
   resolved.  See,  e.g., Berry Computer, Inc. v.  Department of the
   Navy,  GSBCA 12040-C(11972-P), 93-2 BCA    25,658, 1992 BPD   400
   (protester was  a prevailing  party when  Government admitted  to
   violations  prior to hearing); The Newman Group, Inc. v. National
   Aeronautics and Space Administration, GSBCA 11878-C(11849-P), 93-
   1 BCA   25,345, 1992 BPD    203 (protester was a prevailing party
   when  parties  settled);  Rocky Mountain  Trading  Co.  - Systems
   Division,  GSBCA 10404-C(10210-P),  91-2 BCA    24,004,  1991 BPD
     118 (protester  need not obtain  formal relief to  prevail, but
   must establish a clear causal relationship between the litigation
   and the outcome); Cyberchron Corp., GSBCA 10390-C(10263-P),  90-2
   BCA   22,801,  1990 BPD   61  (protester was  a prevailing  party
   when  parties   filed  a  stipulation   acknowledging  Government
   violation  and consenting to entry  of summary relief against the
   Government).
 
 
        The  Board has  awarded costs even  when the  Government has
   taken immediate action to correct the violations which led to the
   protest so long as it is possible to determine that the protester
   was a  prevailing party.   See Integrated Systems Group,  Inc. v.
   Department  of   Commerce,  GSBCA   11974-C(11921-P),  94-1   BCA
     26,399,  1993  BPD    230 (Board  granted  protest  costs where
   parties entered into a joint stipulation to grant the protest ten
   days after it was filed because the Government discovered it made
   a mistake reading protester's response to Commerce Business Daily
   notice  and  immediately canceled  the  contract); Communications
   Resource  Group, Inc.  v. General Services  Administration, GSBCA
   11038-C(10998-P), 92-2 BCA   24,769, 1992 BPD   29 (Board granted
   protest costs  where protest  was dismissed  thirteen days  after
   being  filed  when  the Government  terminated  the  contract for
   convenience and agreed to reevaluate all proposals).
     
        The situation before us is analogous to those cases in which
   the  parties settled  prior  to  issuance of  a  decision on  the
   merits, but the Board was still able to determine that protesters
   were  prevailing  parties  entitled  to  protest  costs.    Thus,
   awarding  protest costs  here  would  be  consistent  with  Board
   practice and precedent.
 
        In the underlying  decision that was vacated by  the Federal
   Circuit,  we  granted  the protest;  terminated  the  Air Force's
   contract  with EDS;  and required  the  Air Force  to revise  its
   solicitation or to acquire its  requirements in any manner  which
   was consistent with  statute, regulation, and  its DPA.   Network
   Solutions, Inc.  v. Department of  the Air Force,  GSBCA 11498-P,
   et al., 92-3 BCA    25,083, at 125,024, 125,049,  1992 BPD   131,
   at 3-4,  55, vacated  sub nom. Electronic  Data Systems  Corp. v.
   Rice, 988 F.2d 128 (Fed. Cir. 1992) (table).  After receiving our
   decision, the  Air Force  terminated the  contract, canceled  the
   solicitation, and incorporated the  project into another  ongoing
   procurement.  All of these actions were fully consistent with our
   decision.   Even after  the Federal  Circuit vacated  the Board's
   decision, the  Air Force  continued  to maintain  that course  of
   action.  If  the protests had not been filed, the Air Force would
   not have taken these steps.   Thus, there is a  causal connection
   between the filing of  the protest and the Air Force's actions to
   acquire its requirements consistent with statute and regulation.
 
 
        The fact that  our decision was vacated need  not change the
   analysis.  The Court's vacatur occurred because the appeal by EDS
   became moot when  the Air Force took  actions to comply  with our
   decision  by abandoning  the protested  procurement  and entering
   into a  settlement agreement.   Although  the Board's  underlying
   decision ceases  to exist, the  ultimate result is  precisely the
   disposition  that the  protesters  sought  to  achieve  when  the
   litigation  commenced.  The protesters succeeded on a significant
   issue in the  litigation when the contract to  EDS was terminated
   and the  Air Force  subsequently canceled  the procurement.   The
   protesters also achieved the benefit  they sought to achieve -- a
   new opportunity to compete for the Air Force's requirements.
 
        An analogy can be drawn  between the situation before us and
   cases interpreting the  Civil Rights Attorneys' Fees  Awards Act,
   42 U.S.C.   1988 (Civil Rights Act).  We have stated that we will
   construe  our statutory  authority to  award  protest costs  pari
   passu with  other statutes,  including the Civil  Rights Act,  in
   which   Congress  has  authorized  awards  of  attorney  fees  to
   prevailing parties.   NCR Comten, Inc., GSBCA  8229(8091-P), 86-2
   BCA    18,822, at  94,847, 1986  BPD    24, at  2 (citing  Amdahl
   Corp.,  GSBCA 7965(7859-P), 85-3 BCA    18,283, at 91,762).   Our
   test   for  determining  whether  protester  is  an  "appropriate
   interested party" for purposes of protest cost awards mirrors the
   test used for determining prevailing party  status for fee awards
   pursuant to the Civil Rights Act.  
 
        To be  a prevailing party  for purposes of the  Civil Rights
   Act, the  plaintiff must  succeed on a  significant issue  in the
   litigation  which  achieves  some  of the  benefit  it  sought in
   bringing  suit.   Farrar v.  Hobby, 113  S. Ct.  566,  572 (1992)
   (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).  "[T]he
   plaintiff  must be able  to point to a  resolution of the dispute
   which  changes  the  legal relationship  between  itself  and the
   defendant."     Id.  at  572-73  (quoting  Texas  State  Teachers
   Association v. Garland Independent School District, 489 U.S. 782,
   792  (1989)).   This  resolution  can occur  through  a judgment,
   consent decree, or settlement.   Id. at 573.  Thus,  "a plaintiff
   'prevails'  when  actual  relief  on the  merits  of  [its] claim
   materially alters the  legal relationship between the  parties by
   modifying  the  defendant's  behavior  in  a  way  that  directly
   benefits the plaintiff."  Id. 
 
        As  discussed above,  protesters succeeded on  a significant
   issue and  obtained  the  benefits  they  sought  in  filing  the
   protest.   The contract award  to EDS was  canceled and they will
   have another opportunity to compete for the requirements.  
 
        In addition, the Air Force has materially altered the  legal
   relationship between itself and the protesters by entering into a
   joint   stipulation  with   Network   Solutions  concerning   the
   cancellation of EDS's contract and the award of protest costs for
   this protest.  The Air Force  and Network Solutions agreed to the
   terms of  the joint  stipulation prior to  the Federal  Circuit's
   vacatur  of our  decision  and  the vacatur  does  not affect  or
   invalidate the  settlement.   In the  stipulation, the  Air Force
   stated  that  Network Solutions  substantially  prevailed  in the
   protest and  that the  Board's decision  "materially altered  the
   parties' legal  relationship[.]"   Joint Stipulation    1.   This
   obviously refers  to the cancellation  of the award to  EDS which
   continues  notwithstanding the vacatur.  Both parties also agreed
   that neither  would seek reconsideration  of or  appeal from  our
   decision on the merits.  Id.   9.
 
 
        The  settlement  agreement  and the  admissions  it contains
   survive  the Court's  vacatur.    Thus,  the  legal  relationship
   between  the  parties has  been  materially altered  in  a manner
   required by the prevailing party test.
 
        Moreover,  the  cases  interpreting  the  Civil  Rights  Act
   indicate that, under  the prevailing party doctrine,  relief need
   not be "judicially decreed"  to justify a  fee award.  Hewitt  v.
   Helms,  482   U.S.   755,  760-61   (1987).[foot #] 12      Thus,
   the vacatur of the  lower court's decision on the merits does not
   necessarily affect  a  possible fee  award.   Rather,  the  focus
   remains  on determining  whether the  plaintiff  is a  prevailing
   party for purposes of entitlement to attorney fees.  For example,
   in  Williams v.  Alioto,  625  F.2d 845  (9th  Cir. 1980),  cert.
   denied, 450 U.S. 1012 (1981), the Ninth Circuit dismissed as moot
   an  appeal from the grant of  a preliminary injunction preventing
   the City of San Francisco Police Department from enforcing a stop
   and frisk policy  implemented after a series of  murders.  Before
   the appeal was heard, the suspects were caught and convicted, and
   the  police department  stopped the searches.   Id. at  847.  The
   court stated that the preliminary injunction prevented the police
   from enforcing  their search  guidelines, which  was exactly  the
   result the  plaintiffs sought.   Id.  "Our previous  dismissal of
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 12     The  Supreme  Court,  in  Hewitt  v.  Helms,
                                                  _________________
   observed that:
 
        In all civil litigation, the judicial decree is not the
        end but the means.  At the  end of the rainbow lies not
        a judgment, but some action (or cessation of action) by
        the defendant that the judgment produces -- the payment
        of  damages,  or  some  specific  performance,  or  the
        termination of some conduct.  Redress is sought through
                                                        _______
        the  court, but  from the  defendant. .  . .  The  real
        value of  the judicial  pronouncement . .  . is  in the
        settling  of some dispute which affects the behavior of
                                  _____________________________
        the defendant towards the plaintiff.  
        ___________________________________
 
   482 U.S. at 761.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   the appeal  as moot and  vacation of the district  court judgment
   does  not affect  the fact  that  for the  pertinent time  period
   appellees obtained  the desired relief.  . .  ."  Id.  at 847-48.
   The Ninth Circuit found that a fee award was appropriate.
 
 
        Decisions in  other circuits  are in accord.   In  Martin v.
   Heckler, 773  F.2d 1145 (11th  Cir. 1985), the court  stated that
   the  focus  should  be  on  whether  "plaintiff's  lawsuit  was a
   catalyst motivating  defendants  to provide  the  primary  relief
   sought in a manner desired by litigation."  Id.  at 1149 (quoting
   Robinson v. Kimbrough,  652 F.2d 458, 465 (5th  Cir. 1981)).  The
   court determined that a plaintiff  may be a prevailing party when
   the  litigation terminates  by a  mooting of  the case  where the
   plaintiff vindicated his  rights.  Id.  This  would include cases
   where the defendant took remedial  action to correct its wrongful
   actions only after a suit was filed.  See also S-1 v. State Board
   of Education of North Carolina, 6 F.3d 160 (4th Cir. 1993) (court
   must  determine if defendant's actions were causally connected to
   the  litigation to  determine if  mooting of  an action  prevents
   plaintiff from being  a prevailing  party); Grano  v. Barry,  783
   F.2d 1104  (D.C. Cir. 1986)  (party may be prevailing  party when
   the  legal  action  ceases  before  initial  or  final  appellate
   judgment  due to intervening  mootness; plaintiff must  only show
   the  final  result  represents a  disposition  that  furthers its
   interest); Bagby v. Beal, 606 F.2d 411 (3rd Cir. 1979) (plaintiff
   is a prevailing  party if he  "essentially succeeds in  obtaining
   the  relief  he seeks  in  his claims  on  the merits"  even when
   interim relief  during the  pendency of  the appeal  remedies the
   constitutional violation and moots the appeal). 
 
        As stated by the Fifth Circuit,
 
        Thus a determination of  mootness neither precludes nor
        is precluded  by  an award  of  attorneys' fees.    The
        attorneys'  fees  question turns  instead  on  a wholly
        independent  consideration:  whether   plaintiff  is  a
        prevailing party.  Even preliminary relief may serve to
        make  a  plaintiff  a   "prevailing  party"  under  the
        statute; the  lawsuit need not  proceed to  completion.
        All that is  required is that the plaintiff  obtain the
        primary relief sought.
 
   Doe  v.  Marshall,  622  F.2d  118,  120  (5th  Cir.)  (citations
   omitted), reh'g denied,  627 F.2d 239  (1980), cert. denied,  451
   U.S. 993 (1981).  
 
        The  prevailing party inquiry is entirely appropriate in the
   context of the Brooks Act.  With regard  to fee shifting statutes
   generally  the  prevailing  party inquiry  enables  the  court to
   ensure  that the public policies underlying fee shifting statutes
   are promoted by  the litigation.  If  the plaintiff is  unable to
   succeed on  a  significant issue  in the  litigation, the  public
   policy underlying the  fee statute at issue will  not be promoted
   and  the  legal relationship  between  the  parties will  not  be
   altered.
 
 
        In the context  of the Brooks Act, this  inquiry enables the
   Board to ensure  that the Congressional intent  of "encourag[ing]
   private enforcement  of the  laws and  regulations mandating  the
   acquisition   of  general   purpose  automatic   data  processing
   equipment and  services through full and open  competition and to
   open  the  'federal  marketplace  to  all   responsible  computer
   companies'" which  underlies the  Act is  promoted.   NCR Comten,
   Inc., GSBCA 8229(8091-P), 86-2 BCA   18,822,  at 94,853, 1986 BPD
     24, at 10 (quoting H.R. Rep. No. 861, 98th Cong., 2d Sess. 1430
   (1984),  reprinted in 1984  U.S.C.C.A. 2118; H.R.  Rep. No. 1157,
   98th Cong., 2d Sess. 26 (1984)).   The Board can only ensure that
   the  policy of  full and  open competition  is promoted  when the
   protester  can demonstrate  that it  succeeded  on a  significant
   issue which  achieved some of  the benefit it sought  in bringing
   suit.   If the protester  is unable to  make this showing,  it is
   highly likely  that the policy  of full and open  competition has
   not been promoted by the litigation at issue.
 
        In this  case, it is clear that the  policy of full and open
   competition has been promoted.  Even after the Court's vacatur of
   our  decision, the protesters can demonstrate that they succeeded
   on a significant issue in the  protest and that they achieved the
   benefit they sought  in bringing suit.  The  Air Force terminated
   the contract with EDS and canceled the procurement only after and
   as a  direct result of the Board's decision  on the merits.  Even
   though  our decision  has been  vacated, the  Air Force  is still
   acting   consistently  with  our   decision  and  its  settlement
   agreement.  The Court's  vacatur did not prompt the Air  Force to
   return to  its former course  of action or  change the  fact that
   protesters  obtained  the  relief  they  desired.    Because  the
   protests caused  the Air Force to change its course of action and
   materially  altered the parties'  legal relationship in  a manner
   consistent  with  the  intent of  Congress  in  enacting  the fee
   shifting  statute, I would  find that protesters  were prevailing
   parties.   
 
        If the Air Force, itself,  had appealed our decision and had
   not entered into the settlement agreement with Network Solutions,
   I might agree  that the Court's vacatur  vindicated its position.
   In that case, protesters would not be  prevailing parties because
   they would not have obtained the relief they sought and would not
   have  materially  altered  the  legal  relationship  between  the
   parties.  This, however, is not the situation before us.
 
        We must keep  in mind that the merits of the protest and the
   motion for protest costs are  two separate actions at this Board.
   Following our decision, the Air Force took actions to ensure that
   its procurement  was conducted in  a manner which  was consistent
   with statute,  regulation,  and its  DPA.   After these  actions,
   there no longer  was a violation with respect  to the procurement
   at issue and  the appeal became moot.  The Court thus vacated our
   decision because  there was  no case  or controversy  between the
   parties left for appeal.   
 
 
        Under  these  circumstances,  I  cannot  conclude  that  the
   vacatur affects the motion for protest costs.  The fact  that the
   appeal was  mooted has no  bearing on whether protesters  in this
   case  are "appropriate  interested  parties"  as  the  Board  has
   interpreted this term.  Because  I would find that protesters are
   prevailing parties, I respectfully dissent.
 
                                      _____________________________
                                      CATHERINE B. HYATT
                                      Board Judge