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 13393-C(13306-P)
 
 
                    ZENITH DATA SYSTEMS CORPORATION,
 
                                                Applicant,
 
                                   v.
 
                      DEPARTMENT OF THE TREASURY,
 
                                                Respondent.
 
        Laura K. Kennedy of Seyfarth, Shaw, Fairweather & Geraldson,
   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).
 
        On  August 30,  1995, Zenith  filed  a motion  for award  of
   protest costs in the amount of $184,013.31.  The motion for costs
   included  claims for attorney fees, disbursements, consultant and
   expert  fees,  secretarial  and  support  staff  overtime,  court
   reporter  fees,   in-house  personnel  costs,  and  expenses  for
   photocopying,  long distance telephone  calls and  faxes, courier
   service,  computer  research,  and other  costs  associated  with
   filing and  pursuing  the protest.   Protester's  Motion for  the
   Award of  Protest Costs.   Treasury objected  only to  claims for
   attorney fees and expert witness  fees in excess of the statutory
   cap.   Respondent's Response to  Protester's Motion for  Award of
   Protest Costs.
 
        While all attorney fees, expert consultant fees, and out-of-
   pocket disbursements related  to the filing  and pursuit of  this
   protest were reasonably and  properly incurred, the circumstances
   surrounding this case do not warrant a "special factor" exception
   to  the cap  of $150  per hour  on attorney  fees.   Furthermore,
   protester did  not sufficiently  document its in-house  personnel
   costs so as to allow the Board to  evaluate the reasonableness of
   the  incurred  costs.    The   Board  thus  grants  in  part  the
   application, awarding $134,922.43 and denying the remainder.  
 
                               Discussion
 
        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).
 
        Under Board 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).
 
   Attorney Fees
 
        ZDS' application for costs includes an exhibit detailing the
   daily  activities of  its attorneys  during the  pursuit  of this
   protest.   Protester's  Motion for  the Award  of Protest  Costs,
   Exhibit  A.   The  exhibit  also establishes  the  rate for  each
   attorney's services.   Id.  ZDS'  motion sufficiently allows  the
   Board  to determine  that, subject  to the limitation  below, ZDS
   reasonably and  necessarily incurred  these costs  in filing  and
   pursuing this protest.
 
        Section  1435 of  the Federal  Acquisition Streamlining  Act
   (FASA),  as an  amendment  to the  Brooks Act,  40 U.S.C.    759,
   denies  the recovery  of a  prevailing party's  attorney fees  in
   excess  of $150  per hour, unless  the party is  a small business
   concern or explains why  a "special factor" or an increase in the
   cost of living adjustment would justify  a higher fee.  40 U.S.C.
     759(f)(5)(C)  (1994).   Rule 35,  quoting  the FASA  provision,
   provides, in pertinent part:
 
             If  the  application   requests  reimbursement  of
        attorney fees that  exceed the statutory  rate, explain
        why  an increase  in the  cost of  living or  a special
        factor, such as the  limited availability of  qualified
        attorneys for the proceedings  involved, justifies such
        fees.
 
   Rule 35(c)(6).
 
        In a recent decision, protester Advanced Technology Systems,
   Inc. (ATSI), applied  for the "special  factor" exception to  the
   cap on  attorney fees, citing  its "major commitment  of attorney
   resources . . . on short notice"  and the "numerous, complex  and
   novel" issues of fact and law involved  in the protest.  Advanced
   Technology Systems,  Inc.  v.  General  Services  Administration,
   GSBCA 13398-C(13312-P), slip op. at 5 (June 28, 1996).  The Board
   refused to reimburse fees  in excess of the statutory cap of $150
   per hour, stating: 
 
 
        The applicant has not suggested, and there is no reason
        to believe,  that Congress  was unaware  either of  the
        short  time frame to  develop the record  in a protest,
        with  the immediate  need for  staffing,  or that  many
        protesters retain  counsel from  the Washington,  D.C.,
        area, or of the prevailing rates of retained counsel in
        protest proceedings. . . .  The issues of fact and  law
        were   focused,   straightforward  and   routine,   not
        "numerous,  complex and  novel."   This  protest was  a
        typical  challenge  to an  agency determination  not to
        place the protester in the competitive range. . . .  To
        permit recovery of an hourly  rate in excess of $150 in
        this  case  would  circumvent  the  express  limitation
        established in the statute.
 
   Id.
 
        In its  motion  for costs,  ZDS  states that  "this  protest
   demanded instant familiarity  with the legal and factual bases of
   the procurement and did not  permit attorneys an extended time to
   'get up to speed' on the case."  Protester's Motion for  Award of
   Protest  Costs at 17.   ZDS also  claims that  its attorneys were
   uniquely  qualified to represent  ZDS because they  specialize in
   GSBCA bid  protests.  Id.   Furthermore, ZDS  claims that it  was
   precluded  from  hiring other  law  firms based  on  conflicts of
   interest because the  awardee in the protest, EDS,  hires many of
   the "top government contracts law firms."  Id. at 18.
 
        ZDS' claims do  not qualify as special  factor exceptions to
   the $150 per hour  cap on attorney fees imposed  by FASA.  As  in
   ATSI, the short preparation time typical to all protests does not
   justify the award of attorney fees in excess of the cap.  Counsel
   also failed  to demonstrate  how their  unique qualifications  to
   represent ZDS warrant the award of attorney fees in excess of the
   cap.   While ZDS counsel are obviously skillful, well-experienced
   government contract litigators,  ZDS did not demonstrate  how its
   attorneys  applied "specialized"  skills to the  instant protest.
   The  parties settled  the protest  based  on Treasury's  admitted
   violation after the Board granted ZDS' motion to dismiss.   As in
   ATSI, the  issues  were "focused,  straightforward and  routine."
   ZDS failed to demonstrate how any aspect of this protest required
   application of unique and special skills.  We consequently reduce
   ZDS'  award  of costs  by eliminating  all costs  attributable to
   attorney fees in excess of $150 per hour.
 
   Employee Costs
 
        In its application for costs,  ZDS submitted an exhibit  for
   the time spent by  its employees in support of its  protest.  The
   exhibit  lists employees  by name,  with  a number  of hours  and
   dollar figure attributable to each.  The total number of hours is
   ***** and the  total dollar  figure is  $*********.   Protester's
   Motion for Award  of Protest Costs, Exhibit F.   The exhibit also
   included   an  affidavit  by  Joel  A.  Lipkin,  Vice  President,
   certifying that  the amounts  are  true and  correct.   Id.   Mr.
   Lipkin's affidavit stated that:
 
 
        Employees  performed a  variety of  necessary  tasks in
        support of the Protest, including; gathering  documents
        for counsel; preparing  documents and charts; preparing
        for depositions;  being deposed; and  helping to answer
        interrogatories and document production requests.
 
   Id.   The affidavit  did not  attribute activities to  individual
   employees.    Id.    The   affidavit  also  stated  that  written
   documentation  of ZDS'  employee hours  expended  in the  protest
   would  be "available  on  request."   Id.    The Board  requested
   further  written documentation  on  July 17,  1996,  but ZDS  was
   unable to furnish supporting documents within the allotted time.
 
        As this Board has emphasized,  we 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.  Sytel, Inc. v. Department of Health
   and Human Services, GSBCA 12901-C(12827-P), 96-1 BCA   28,124, at
   140,396, 1995 BPD   224,  at 3 (citing Materials, Communication &
   Computers,   Inc.    v.   Defense    Logistics   Agency,    GSBCA
   13084-C(12930-P), et al., 95-2 BCA   27,867, at 138,953, 1995 BPD
      161, at  5).   The  applicable Board  Rule  states that  "[a]n
   application for  costs shall be  accompanied by an  exhibit fully
   documenting  any fees or  expenses being sought."   Rule 35(c)(3)
   (emphasis added).   The  applicant has the  burden to  supply the
   Board with the requisite information.
 
        The  information  submitted   by  ZDS  does  not   meet  the
   requirement set  forth in  the rules.   The application  does not
   show the  "particular services  performed [by  each employee]  by
   specific date [or] the rate at which each fee has been computed."
   Rule 35(c)(3).   The application merely  describes the  aggregate
   number of  hours spent  by each employee  on the  protest without
   specifying the basis  for any hourly wage or the  number of hours
   spent by each individual on a specific activity.  A certification
   by the applicant's officer that  the costs claimed were  actually
   incurred   is   insufficient   to   overcome   the   absence   of
   documentation.    Sterling  Federal  Systems,  Inc.  v.  National
   Aeronautics and Space  Administration, GSBCA 10000-C-REM(9835-P),
   95-1 BCA   27,575, at 137,428, 1995 BPD   65, at 15.
 
   Other Costs Incurred in Filing and Pursuing the Protest
 
        In  its application for  costs, ZDS submitted  the following
   expenses incurred  by  its outside  attorney  in the  filing  and
   pursuit of this protest:
 
        Duplicating Expenses
             In-House                      $2,290.80
             Outside                        1,755.82
                       Sub-total                          $4,046.62
 
        Long Distance Phone Calls and 
             Facsimile Transmissions                       1,652.00
 
        Courier Service                                      148.27
 
        Computer Research                                    901.00
 
        Secretarial and Support Staff Overtime               671.42
 
        Miscellaneous Expenses -- Food, Cab Fares, Car
                                      Rental, Parking        186.58
 
        Court Reporter Services                           19,385.00
 
 
                            TOTAL                         26,985.89
 
   Protester's Motion for the Award of Protest Costs, Exhibit C.  In
   support  of   these  costs,  ZDS  submitted   detailed  invoices,
   receipts,  and   printouts  documenting  each   cost  and,  where
   necessary,  explanations for  the rate upon  which each  cost was
   based.  Id., Exhibit D.
 
        We find that  the above costs  were necessarily incurred  in
   the  protest, and  that  the  amounts  incurred  are  reasonable.
   Therefore,  we award $26,985.89 to ZDS for the disbursements made
   by its attorneys in the filing and pursuit of this protest.  
 
   Expert Consultant Fees
 
        In its application for costs, ZDS also submitted a claim for
   expert consultant fees.  During the protest ZDS retained Jimmy J.
   Jackson  to  assist  its  attorneys  on matters  related  to  the
   procurement.  ZDS submitted invoices from Mr. Jackson  in support
   of  its claim  for costs.   Protester's  Motion for the  Award of
   Protest Costs, Exhibit  D6.  The  invoices totaled $********  and
   broke down as follows:
 
        Professional Fees        **** hrs @ $***/hr  =    $********
 
        Expenses
 
             Travel              $293.25
             Meals                 33.05
             Lodging              163.74
             Communication/Fax     87.75
 
                                                             577.79
 
                                      TOTAL               $********
 
   Id.  The invoices also gave a detailed account of how Mr. Jackson
   allocated his time while involved with this protest.  Id.
 
        The test for awarding expert  consultant fees is whether the
   expert's assistance  was necessary  for protester  to pursue  the
   protest.   Grumman Data  Systems Corp. v.  Department of  the Air
   Force, GSBCA 11799-C-REM(11635-P), 1996 BPD   47 (Mar. 20, 1996).
   As in Grumman, the protester's employees could not gain access to
   proprietary  information of  other offerors  due  to the  Board's
   protective  order.   As  a result,  ZDS  necessarily employed  an
   outside consultant to assist its  attorneys in the pursuit of its
   case.
 
        Although the Government does not contest the award of expert
   consultant  fees,  the Government  asks  the Board  to  limit the
   amount of the award.  Under  the GSBCA Rules of Procedure,  "[i]f
   the respondent contends  that any fees for  consultants or expert
   witnesses  for which reimbursement  is sought in  the application
   exceed the highest rate of compensation for expert witnesses paid
   . . .  by the Federal Government, the respondent shall include in
   the answer  evidence  of  such highest  rate."    Rule  35(d)(1).
   Treasury cites  FASA    1435  as a  cap on  the  amount that  the
   Government  may reimburse  the  protester for  protester's expert
   witnesses.  Treasury claims that "[t]he limit is the highest rate
   of   compensation  for  expert  witnesses  paid  by  the  Federal
   Government, i.e.,  a daily  rate based on  the rate  of pay  of a
   GS 15, step 10," or approximately $338.58  per day.  Respondent's
   Response to Protester's Motion for  the Award of Protest Costs at
   3 (citing  5 CFR 304.105; 48 CFR 33.105).   ZDS responds that the
   amendments   cited  to  by   Treasury  were  enacted   after  the
   commencement  of  this  protest,  and  therefore  do  not  apply.
   Protester's  Supplement to Its  Motion for  the Award  of Protest
   Costs (Oct. 4, 1995) at 3.
 
        We  agree with  ZDS' position.   The  version of  FAR 33.105
   referenced   by  Treasury  was  to  become  effective  under  the
   following terms:
 
        Effective Date:  October 1, 1995
 
             Where this  rule repeats  a GSBCA  rule that  went
        into effect earlier, the date of the GSBCA rule and its
        applicability provision prevails;  otherwise, this rule
        is applicable to  protests or claims filed  on or after
        the effective date of this rule.
 
   60 Fed.  Reg. 48,229  (1995).  The  amendment to  this regulation
   clearly limits  successful protesters  seeking to recover  expert
   witness fees  to the  new Government-wide  restriction on  expert
   compensation.   The  amendment clearly  does not  repeat a  GSBCA
   rule, and must only  apply to protests filed on or  after October
   1, 1995.  This protest commenced well before October 1, 1995, and
   as a  result, the regulation's cap on expert fees does not apply.
   Because the Government relies entirely on  this regulation in its
   attempt  to  limit  the  expert's  fees,  and  the regulation  is
   inapplicable, we find that the  Government has not met its burden
   on showing  why  the  expert's rate  of  compensation  should  be
   reduced.    Accordingly,  we  award the  full  amount  sought  by
   protester   as   reimbursement    for   its   expert   consultant
   fees.[foot #] 1
 
 
                                Decision
 
        ZDS' application  is GRANTED  IN PART.   ZDS is  entitled to
   $134,922.43  as necessarily and reasonably incurred in filing and
   pursuing the  protest.   The award is  composed of  $99,491.25 in
   attorney  fees, $29,985.89 in disbursements related to the filing
   and  pursuit of the  protest, and $5,445.29  in expert consultant
   fees  and related  expenses.   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
     
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1     We do not decide  here whether the Government
   actually pays some of its experts more than a daily rate based on
   the pay of a GS-15, Step 10.