_____________________
 
                          DENIED:  May 29, 1996
                         _____________________
 
 
                GSBCA 12967-C(12891-P), 12969-C(12891-P)
 
 
                     DIGITAL EQUIPMENT CORPORATION,
 
                                  and
 
                           GDE SYSTEMS, INC.,
 
                                        Applicants,
    
                                   v.
 
                    GENERAL SERVICES ADMINISTRATION,
 
                                        Respondent.
 
        Jeffrey H. Schneider  of Jeffrey H. Schneider  & Associates,
   Silver Spring, MD; and Daniel B. Abrahams, Raymond Fioravanti and
   Shlomo D. Katz of Epstein Becker & Green, Washington, DC, counsel
   for Applicant Digital Equipment Corporation.
 
        Stuart B. Nibley  and Kevin J. Edmundson  of Seyfarth, Shaw,
   Fairweather  & Geraldson,  Washington, DC, counsel  for Applicant
   GDE Systems, Inc.
 
        Michael  D. Tully  and  Wendy Nevett  Bazil,  Office of  the
   General Counsel, General Services Administration, Washington, DC,
   counsel for Respondent.
 
   Before Board Judges PARKER, VERGILIO, and DeGRAFF.
 
   VERGILIO, Board Judge.
 
        Digital  Equipment Corporation  and GDE  Systems, Inc.  each
   filed an application to recover  its costs of filing and pursuing
   a protest  dismissed with prejudice by  the Board.  In  the post-
   award   protest,    the   respondent,   the    General   Services
   Administration, stipulated that it violated a specific regulation
   in the  source selection  process and  represented that it  would
   terminate  the  underlying  contract.    The  Board  granted  the
   agency's motion to dismiss the  protest, neither Digital nor  GDE
   having  established   a  basis   to  deny   the  agency   motion.
   Thereafter,  the agency  reselected the  same awardee,  utilizing
   solely the information contained in the record at the time of the
   dismissal with prejudice.   Neither Digital  nor GDE objected  to
   the reselection determination.
 
 
        Despite the agency admission of a violation of regulation in
   its original source  selection determination, the  limited nature
   of  its  admission  together  with   its  subsequent  reselection
   involving  the same proposals  and utilizing only  information in
   existence at  the time of  the dismissal do not  demonstrate that
   these applicants  are appropriate, prevailing parties  to recover
   costs.  The record leaves  open the possibility that, despite the
   agency-admitted violation, the developed  protest record may have
   supported  the original selection determination such that, with a
   de novo  review, had the Board  reached the merits it  would have
   denied  the  protest.    Another possibility  (as  urged  by  the
   applicants)  is  that  the  violation  actually   prejudiced  the
   applicants.  However,  if the selection  could not be  justified,
   then  the reselection (based  on no additional  information) also
   would not be justified.   Hence, this scenario requires the Board
   to  conclude  that the  agency  knowingly made  a  reselection in
   violation of  the regulation--a  conclusion the  record does  not
   support.  In short, the  record does not demonstrate that Digital
   or  GDE is  an appropriate  prevailing party.    Accordingly, the
   Board denies the applications.
 
                            Findings of Fact
 
        1.   On  June 29, 1994,  Digital filed a  post-award protest
   challenging actions of the agency in conducting a procurement and
   in  awarding  a  contract  to  International   Business  Machines
   Corporation  (IBM).  Participating as an intervenor of right, GDE
   pursued a single ground of  protest: the agency failed to conduct
   an  adequate price-technical trade-off analysis.  By motion dated
   August 5, 1994, the agency  requested a dismissal with  prejudice
   of the protest.   The agency represented that  it would terminate
   the contract awarded to IBM.  Further,
 
        GSA stipulates that the contract [with IBM] was awarded
        in violation  of Federal  Acquisition Regulation  [FAR]
          15.612(d).   GSA stipulates that Digital and GDE have
        succeeded  as  to  a significant  issue  and  should be
        deemed the  prevailing parties  and awarded  reasonable
        and  documented attorney fees and costs of pursuing the
        protests.
 
   In  granting the  motion  to dismiss  with  prejudice, the  Board
   stated:
 
             In  light of the agency's stipulations, all of the
        parties agreed  that a  hearing on  the merits in  this
        protest  was not  necessary.   No  party  has asked  to
        submit  the  matter  on  the  record.    No  party  has
        introduced an admission which would enable the Board to
        grant the  protest.  Before  the Board is  the agency's
 
        motion to  dismiss.  Neither  Digital nor GDE  agree to
        the  dismissal  unless the  Board  makes determinations
        which the Board presently is not in a position to make.
        However, no party has suggested an alternate resolution
        given  the state of proceedings and of the procurement.
        No  party has  offered a  basis to  deny the  motion to
        dismiss with prejudice.
 
   Digital Equipment Corp. v. General Services Administration, GSBCA
   12891-P, 1994 BPD   171 (Aug. 12, 1994).
 
        2.   The regulation  referenced in the  agency's stipulation
   provides:
 
             Source Selection  Decision.  The  source selection
        authority shall  use  the factors  established  in  the
        solicitation (see 15.605) to  make the source selection
        decision.
 
             (1)  The source selection authority shall consider
        any  rankings  and  ratings,  and,  if  requested,  any
        recommendations  prepared  by evaluation  and  advisory
        groups.
 
             (2)  The supporting documentation prepared for the
        selection decision shall show  the relative differences
        among proposals  and their  strengths, weaknesses,  and
        risks   in  terms  of  the  evaluation  factors.    The
        supporting documentation  shall include  the basis  and
        reasons for the decision.
 
   48  CFR 15.612(d)  (1994).   The agency  has provided  no greater
   details as to the specifics of the alleged violation.
 
        3.   In  September 1994,  Digital  and  GDE  each  filed  an
   application  to recover  its  costs of  filing  and pursuing  the
   protest, docketed as GSBCA 12967-C(12891-P) and 12969-C(12891-P),
   respectively.
 
        4.   In  November 1994, the  agency "reselected" IBM  as the
   awardee.  New proposals did not  form the basis of the selection.
   The  agency  relied  upon  the  initial  evaluations  and  source
   selection material and a cost/technical trade-off report prepared
   in the course of the Digital protest and dated July 28, 1994.  As
   noted  in a  protest of the  November selection of  IBM, "The GSA
   source  selection  authority  testified  that  that  decision [to
   reselect IBM] 'was  based on the  initial comparative best  value
   analysis contained in the June 14, 1994 Source Selection Advisory
   Council  Analysis Report  as supplemented  by  the July  28, 1994
   Cost/Technical Tradeoff Report.'"  Data General Corp. v. Johnson,
   78 F.3d 1556,  1559 (Fed. Cir. 1996).  Thus, the agency justified
   the November selection of IBM  solely based upon the  information
   existing for inclusion in the record in the underlying protest of
   Digital.  No  new analysis or new consideration  of trade-offs is
   said to have occurred.
 
 
                               Discussion
 
        The  Brooks Act,  applicable  at  the  time  the  underlying
   protest and  cost cases were  filed, specified that if  the Board
   determines that a challenged agency action violates a statute  or
   regulation  or  the  conditions of  an  applicable  delegation of
   procurement  authority, then  the Board  may  further declare  an
   appropriate  interested  party to  be  entitled to  the  costs of
   filing  and  pursuing  the  protest  and  of  bid   and  proposal
   preparation.  40 U.S.C.   759(f)(5)(C) (1988).
 
        The  Board  did  not  reach the  merits  of  the  underlying
   protest.   In light of a dismissal,  an applicant may request the
   Board  to determine  that  an  agency  action  violated  statute,
   regulation,  or the conditions  of procurement authority,  and to
   conclude that  the applicant is  an appropriate party  to recover
   its requested costs.   An agreement by the parties does  not bind
   the   Board   in  resolving   a   subsequent   cost  application.
   Information &  Telecommunications Strategies v. Department of the
   Navy,  GSBCA  12680-C-R(12605-P),  94-3  BCA    27,270, 1994  BPD
     202;  International Data  Products  Group,  Inc., GSBCA  10302-
   P(10241-P),  1989 BPD    327  (Oct.  23, 1989).    The Board  may
   conclude, based upon  the terms of a stipulation  and the actions
   of  the agency,  that  a party  has  significantly prevailed  for
   purposes of recovering its costs.  Zyga Corp., GSBCA 10059-P, 89-
   3 BCA   21,988, 1989 BPD   169;  Zyga Corp., GSBCA 10154-C(10059-
   P), 90-1 BCA   22,376, 1989 BPD   310.
 
        A  necessary predicate  for Digital  and GDE  to  recover in
   their cost applications is a demonstration of an agency violation
   in the underlying procurement.  Integrated Systems Group, Inc. v.
   Department of  the Air  Force, GSBCA  12256-C(12099-P), 95-2  BCA
     27,738,  1995 BPD   107.   Not every  agency-asserted violation
   demonstrates  entitlement to relief--the  violation may  not have
   affected the protested agency actions or the determination by the
   Board.  Here, the agency stipulated that the contract was awarded
   in violation of  a regulation.  The stipulation  does not address
   whether   or  not  that  selection  determination  was  otherwise
   supportable.
 
        The  de  novo  standard  of  review  applicable  to  protest
   proceedings  requires the  Board  to review  a  challenge to  the
   source selection determination in accordance with that standard:
 
        While it is true that the board based its decision upon
        a  different best value analysis than that relied on by
        the [agency], such action is entirely permissible under
        a  de novo  standard of  review  because the  reviewing
        board is not limited to the findings made by the agency
        or contained in  the initial decision.   Under de  novo
 
        review,  a board may consider the analysis developed by
        the agency or produce and consider its own analysis.
 
   Grumman  Data Systems  Corp. v.  Widnall,  15 F.3d  1044, 1046-47
   (Fed. Cir. 1994) (citations omitted).
 
        The agency has  not stipulated that the  award determination
   was not supported  by the record.  Its November  selection of IBM
   suggests  to  the  contrary.   Solely  based  on  the information
   existing  at  the  time  of the  Digital  protest  (that  protest
   underlying  these  cost cases),  the  agency selected  IBM.   The
   determination went unchallenged by Digital and GDE.
 
        Contrast  the present situation with  the cases in which the
   Board   grants   a   protest  challenging   a   source  selection
   determination,  requires the  agency  to  conduct  a  new  source
   selection,  and the agency reselects the original awardee without
   receipt  of  revised  proposals;  the  initial  protester  is  an
   appropriate party to recover costs in an application.  See, e.g.,
   Grumman, 15 F.3d 1044;  Grumman Data Systems Corp.  v. Department
   of  the Air Force, GSBCA 11799-C-REM(11635-P), 96-1 BCA   28,243,
   1996 BPD   47;  Lockheed Missiles & Space Co.  v. Bentsen, 4 F.3d
   955  (Fed. Cir. 1993);  International Business Machines  Corp. v.
   Department  of the  Treasury,  GSBCA  11605-C(11359-P), 93-1  BCA
     25,420,  1992  BPD    220;  Lockheed Missiles  &  Space  Co. v.
   Department  of the  Treasury,  GSBCA  11604-C(11362-P), 93-1  BCA
     25,478,  1992 BPD    276.    In  those  situations,  the  Board
   concluded that the record existing at the time the Board resolved
   the  merits  demonstrated  that  the  agency's  source  selection
   decision  violated  statute  and  regulation  and prejudiced  the
   protester.   Hence, the Board  granted the initial protest.   The
   protester prevailed, was  replaced in the competitive  range with
   an opportunity for  award, and the agency was  required to engage
   in  a  new analysis  and  exercise  of  discretion to  support  a
   selection  determination.  Had  the record been  developed during
   the  course of  the protest  proceeding to support  the selection
   determination, the protest  would have been denied.   Grumman, 15
   F.3d 1044.
 
        There exists a fundamental inconsistency between the actions
   of  these  parties and  their  contentions that  Digital  and GDE
   succeeded  as  to  a  significant  issue  and  should  be  deemed
   prevailing  parties and awarded reasonable costs.  The regulation
   the agency admits  to have violated dictates  particular conduct:
   the  selecting   individual  must   use  solicitation-established
   factors  in making the  source selection decision;  the selecting
   individual must consider rankings and ratings, and (if requested)
   particular  recommendations; and  the  documentation prepared  in
   support of the  selection determination must show  specific items
   and include the basis and reasons for the decision.
 
        The  agency's stipulation  and  its  subsequent actions  are
   equivocal at best.   The record  reveals no  specifics as to  the
   particular violative  action, whether procedural  or substantive.
   However, the  agency's subsequent  reselection of IBM,  utilizing
   solely the information  in existence at the time  the protest was
   dismissed, suggests that Digital and  GDE may have been unable to
   demonstrate a prejudicial violation.
 
 
        Alternatively,  if the violation was substantive, the agency
   reselected  IBM  without  additional  information.     Thus,  any
   violation would have  been perpetuated in  the reselection.   The
   agency  would knowingly have violated regulation by such conduct;
   Digital and  GDE would have  acquiesced in the reselection.   Not
   only does  the existing record  fail to so implicate  the agency,
   but also  the actions or inactions of Digital and GDE, in failing
   to benefit the procurement process, do not bespeak an appropriate
   party to recover costs from the Government.
 
        The record does not demonstrate  that either Digital or  GDE
   is  an appropriate  party  to  recover its  costs  of filing  and
   pursuing the protest.
 
                                Decision
 
        The Board DENIES the applications.
   ______________________________
 
                                        JOSEPH A. VERGILIO
                                        Board Judge
   We concur:
 
 
 
   ____________________________         ___________________________
   ROBERT W. PARKER                     MARTHA H. DeGRAFF
   Board Judge                          Board Judge