________________________________
 
                   GRANTED IN PART: November 3, 1992
                    ________________________________
 
                         GSBCA 10403-C(10302-P)
 
                INTERNATIONAL DATA PRODUCTS CORPORATION,
 
                                        Protester,
 
                                   v.
 
                         DEPARTMENT OF JUSTICE,
 
                                        Respondent.
 
        Gerard F.  Doyle and  Steven W. DeGeorge  of Doyle  & Savit,
   Washington, DC, counsel for Protester.
 
        Katherine Schulze, Office of the General Counsel, Department
   of Justice, Immigration & Naturalization Service, Washington, DC,
   counsel for Respondent.
 
   Before Board Judges BORWICK, NEILL, and VERGILIO.
 
   VERGILIO, Board Judge.
 
        On November 21, 1989, protester, International Data Products
   Corporation, filed  a motion to  recover its costs of  filing and
   pursuing two protests and of bid preparation.  Protester seeks to
   recover both fees and expenses incurred through retained counsel,
   as  well  as internal  expenses  it  associates with  filing  and
   pursuing the protests or bid preparation.
 
        The  respondent,  the  Department  of  Justice,  objects  to
   reimbursement  of amounts incurred relating to the second protest
   or to bid  preparation.  Specifically, the  agency maintains that
   protester  did  not prevail  in  the  second  protest.   It  also
   contends  that  no  inappropriate  agency  actions  or  inactions
   resulted in  protester's expending resources on  bid preparation.
   It   would  also  reduce  the  requested  costs  attributable  to
   preparing  the  cost motion  by  an amount  proportionate  to the
   disallowed costs.
 
        The  Board concludes that  protester is entitled  to recover
   amounts relating to filing or  pursuing the initial protest which
   are either  taxable  costs or  attorney fees.   Sterling  Federal
   Systems,  Inc. v.  National  Aeronautics &  Space Administration,
   GSBCA 10000-C(9835-P),  1992 BPD    141  (May  22, 1992),  appeal
   filed,  No. 92-1552  (Fed.  Cir.  Sept. 21,  1992).   Based  upon
   Sterling, protester is  not entitled to  recover its other  costs
   associated with the first protest.   Protester did not prevail in
   its second  protest; accordingly,  it may not  recover any  costs
   associated therewith.  Protester has not demonstrated entitlement
   to  bid preparation costs--improper agency actions did not induce
   protester to  expend  costs of  bid  preparation.   Protester  is
   entitled to  recover the full amount requested  as costs incurred
   related  to  this  cost motion;  all  such  requested  costs were
   reasonably and appropriately incurred.
 
 
                            Findings of Fact
 
        1.   On  August  28,  1989,  protester  filed  a  post-award
   protest with the  Board, GSBCA 10241-P, alleging  that the agency
   improperly  made the award  to a non-responsive  bidder, and that
   protester was the  proper awardee.  Before the  Board reached the
   merits of  that and consolidated  protests, the agency  agreed to
   terminate for convenience the protested award and to continue the
   evaluation process.   At  the request of  the parties,  the Board
   dismissed  the protest without prejudice, the dismissal to become
   one with prejudice  "ten working days following  the notification
   of  the  parties that  either  award  of  a contract  under  this
   acquisition  has occurred or the solicitation has been canceled."
   Consys Corp,  GSBCA 10229-P,  et al., 1989  BPD   269  (Sept. 11,
   1989).
 
        2.   Thereafter,  the   agency  canceled   the  procurement.
   Protester filed a  protest with the Board on  September 25, 1989,
   GSBCA 10302-P(10241-P), which it characterized as reinstating the
   earlier  protest.  Protester alleged that the cancellation of the
   solicitation breached the prior settlement agreement and violated
   applicable   law    governing   cancellation   of    sealed   bid
   solicitations.
 
        3.   On October 13, 1989,  protester and the agency filed  a
   joint motion to dismiss the protest, GSBCA 10302-P(10241-P), with
   prejudice.  The joint motion states in part:
 
                  Protester  and  Respondent   agree  that
             Protester shall be deemed  a prevailing party
             for purposes  of submitting a  claim pursuant
             to Board  Rule 35  for the  award of  protest
             costs incurred in  connection with GSBCA  No.
             10241-P, such claim to be submitted within 30
             days  of dismissal.    The parties  base this
             agreement upon Respondent's having terminated
             the  protested  award  for nonresponsiveness.
             The Respondent's finding of nonresponsiveness
             was  based in part upon the grounds raised in
             [protester]'s  Protest  Complaint,  GSBCA No.
             10241-P (i.e.,  that the  Solicitation called
             for  a  bid  of  ProComm  Plus  and   Sysorex
             supplied ProComm 2.3.2).
   International Data Products  Group, Inc., GSBCA 10302-P(10241-P),
   1989  BPD   327 (Oct. 23, 1989).   In dismissing the protest with
   prejudice, the Board stated:
 
 
                  Here,  the  parties  have  agreed  to  a
             dismissal  of  this protest  with  prejudice.
             Accordingly,  the  protest is  so  dismissed.
             The  parties  also   state  that  they   deem
             protester to have prevailed on the merits for
             purposes  of recovery  of  costs pursuant  to
             Rule 35.   It is  simply noted  that such  an
             agreement does not bind  the Board; the Board
             is  to make  its own  determination regarding
             the award of  costs pursuant  to statute,  40
             U.S.C.   759(f)(5)(C) (Supp. V  1987).  If  a
             claim is filed pursuant to Rule 35, the Board
             will review  the record of this  protest, the
             parties' submissions  under Rule 35,  and the
             records in  the related Compuline  and Consys
             protests  in deciding  whether protester  has
             prevailed.
 
   Id. (citations omitted).   In those  related protests, the  Board
   concluded that  the record  failed to  establish that  the agency
   violated  statute or regulation in canceling the procurement, and
   that  the agency  did not breach  its settlement  agreement which
   obligated  it to  proceed in  accordance  with the  terms of  the
   solicitation.    Compuline  International,  Inc.,  GSBCA  10293-P
   (10237-P), et al., 90-1 BCA   22,494, 1989 BPD   369.
 
        4.   On  November  21,  1989, protester  filed  a  motion to
   recover its costs of filing and pursuing the protests  and of bid
   preparation.
 
        5.   Protester  incurred  costs of  retained counsel  in the
   form of hourly charges and expenses.  The hourly charges for four
   individuals segregated  between the  two protests  and this  cost
   matter   are  well  documented  and  reasonable.    The  expenses
   incurred,  which also are well documented  and reasonable, are of
   the variety reimbursed  by the Board as costs  or legal expenses.
   Sterling.
 
        matter        hourly amts   "expenses"     total  
        GSBCA 10241-P  $4,242.50      $43.37     $4,285.87
        GSBCA 10302-P  $2,132.50      $30.61     $2,163.11
        cost motion    $1,268.75          --     $1,268.75
        TOTAL          $7,643.75      $73.98     $7,717.73
 
   Protester Motion,  Exhibits A and B.   Fewer than nine hours were
   expended in preparing and perfecting  the cost motion.  Given the
   motion and its attachments, it  appears that there would not have
   been  a  substantial  reduction  in  the  legal   time  spent  in
   preparation of a motion not requesting recovery of costs incurred
   relating to the second protest or bid preparation.
 
        6.   Protester also seeks  to recover what it  identifies as
   internal  costs incurred  in  filing  and  pursuing  the  protest
   ($1,790) and  in bid  preparation ($47,163).   Protester  Motion,
   Exhibits C, D.  Protester seeks to recover a total of  $1,395 for
   hours expended  by various  employees.   Protester also seeks  to
   recover $32 as its costs of producing documents and materials for
   its counsel necessary to the pursuit of the initial protest.  The
   amount   as  certified   is  $31.65.      Protester  also   seeks
   reimbursement of  $105 for shipping ($104.50 is certified) and of
   $52 for  travel ($52.08 is  certified), as well as  $206 to cover
   general  and   administrative  expenses  (13%   of  the  itemized
   amounts).   These amounts are not  attributable to any particular
   time period or activity.  Id., Exhibit C.
 
                               Discussion
 
        Statute  permits a  party to  recover costs  only if  it has
   demonstrated  an agency violation.  Further, statute entrusts the
   Board  with determining  if  a party  is  appropriate to  recover
   amounts  requested, and the reasonableness of the amount awarded.
   40 U.S.C.   759(f)(5)(C) (1988); Sterling.
 
        The  agency does  not object  to  reimbursing protester  its
   costs  of filing  and pursuing  the initial  protest; the  agency
   maintains that it terminated the protested contract, having found
   the  accepted  bid to  be  non-responsive, in  part,  for reasons
   alleged by  protester.   However, the  agency  objects to  paying
   protester its costs of filing and pursuing the subsequent protest
   and of bid preparation.  In  support of its position, the  agency
   contends that  there is  no point upon  which protester  could be
   deemed to  have prevailed  in GSBCA 10302-P,  and that  protester
   achieved no benefit  not already afforded by the  prior events or
   agreement.   NCR Comten,  Inc., GSBCA 8299[-C](8091-P),  86-2 BCA
     18,822,  1986  BPD    24;  Computervision  Corp.,  GSBCA  8838-
   C(8709-P), 87-2 BCA    19,918, 1987 BPD   70.   The agency  would
   also reduce  the amount  requested for  preparation  of the  cost
   motion, because the  agency contends protester is  entitled to no
   costs associated with bid preparation.
 
   Costs associated with 10241-P
 
        In  the  first of  the  two  protests underlying  this  cost
   motion, protester prevailed on a  significant issue.  The  agency
   determined  that  it  had  violated  statute  and  regulation  in
   awarding the protested  contract.  Protester's bases  of protest,
   in part, were valid; the  agency agreed to take corrective action
   which terminated that contract.  Protester  could, once again, be
   considered for award.  Findings  1, 3.  The Board concludes  that
   protester  is  an  appropriate interested  party  to  recover its
   reasonable  costs incurred  in  filing  and  pursuing  the  first
   protest.
 
        All  of the  $4,285.87  protester incurred  through retained
   counsel as hourly fees or expenses are reasonable and recoverable
   as taxable costs  or attorney fees under Sterling.   Further, the
   $31.65, Finding 6, is a "taxable cost" which would be recoverable
   under  28 U.S.C.    1920 (1988).   Id.   The  Board awards  these
   amounts.
 
 
        With the exception of $31.65, none of the requested internal
   costs of filing and pursuing  the protest are recoverable  before
   this  Board.   Sterling.    Accordingly,  the Board  denies  that
   requested recovery.
 
   Costs associated with 10302-P
 
        A necessary predicate  to recovery of costs  associated with
   pursuit   of  the  second  protest,  is  protester's  ability  to
   demonstrate  an underlying agency violation.  The Board concluded
   that none of the protested agency actions at issue in  the second
   protest were  improper.  The  Board found no impropriety  when it
   dismissed  protester's second  protest  and denied  the  parallel
   protests of other bidders.
 
        Given that the Board cannot find an underlying  violation by
   the agency, protester is not entitled to recover any of its costs
   associated  with  filing and  pursuing  its second  protest.   40
   U.S.C.   759(f)(5)(A), (C).
 
   Costs of bid preparation
 
        Protester contends that the agency "canceled the procurement
   rather than  continue and  make award  to [it]  as  the next  low
   responsive  bidder,"  and  that this  agency  action  "results in
   [protester]'s  bid  preparation  costs   to  have  been  incurred
   needlessly."   Protest Motion at 5.  Protester has not elaborated
   upon any  nexus between the  agency violations and  its allegedly
   wasted costs.
 
        Protester has  not demonstrated a basis to recover its costs
   of bid  preparation.   The record permits  the Board  to conclude
   that the agency improperly awarded the contract; however, it does
   not permit  the Board  to conclude that  the cancellation  of the
   solicitation  was   improper,  Compuline.     Findings   1,  3-4.
   Protester  has  not demonstrated  that  any agency  improprieties
   induced  protester  to   unnecessarily  expend  efforts  in   bid
   preparation.  The  ultimate cancellation of the  solicitation may
   have occurred absent any earlier agency violations, and reflect a
   possibility in  any agency procurement.   Thus, the  Board denies
   the request for recovery of costs of bid preparation.
 
   Costs incurred with the cost motion
 
        Protester   seeks  to   recover  legal   fees   incurred  in
   preparation  of  the  cost  motion.   Finding  5.    The  agency,
   contending  that protester is  not entitled to  costs incurred in
   filing and pursuing  the second protest  and in bid  preparation,
   requests that the amount be reduced by two-thirds.
 
        A  review of  the  cost motion  suggests  that protester  is
   entitled to  the full amount  requested for its preparation.   No
   substantial reduction in the time spent in its  preparation would
   have  occurred had  the unsuccessful  grounds  for recovery  been
   eliminated.   Finding  5.   The record  does not  show separately
   billed  legal time  expended in  preparing  the documentation  to
   support  the motion.   Nor are there  separate charges associated
   with the preparation of any specific  element of the motion.  The
   Board  deems protester  to be  entitled to $1,268.75,  the entire
   amount requested for  legal costs incurred in  preparation of the
   cost motion.
 
                                Decision
 
        The  Board  GRANTS  IN PART  protester's  motion,  and deems
   protester to be entitled to $5,586.27 (= $4,285.87  + $1,268.75 +
   $31.65), to be paid in  accordance with statute, 31 U.S.C.   1304
   (1988).  40 U.S.C.   759(f)(5)(C) (1988).
 
 
 
                                        _________________________
                                        JOSEPH A. VERGILIO
                                        Board Judge
   We concur:
   _________________________            _________________________
   EDWIN B. NEILL                       ANTHONY S. BORWICK
   Board Judge                          Board Judge