GRANTED IN PART:  April 1, 1993
                                                     
 
 
                         GSBCA 12176-C(12075-P)
 
 
                    INTEGRATED SYSTEMS GROUP, INC.,
 
                                                Protester,
 
                                   v.
 
                         DEPARTMENT OF ENERGY,
 
                                                Respondent.
 
        Shelton H. Skolnick, Derwood, MD, counsel for Protester.
 
        Elizabeth Arnold,  Office of the General Counsel, Department
   of Energy, Washington, DC, counsel for Respondent.
 
   Before Board Judges LaBELLA, WILLIAMS, and VERGILIO.
 
   WILLIAMS, Board Judge.
 
                               Background
 
        On November  17, 1992, protester, Integrated  Systems Group,
   Inc. (ISG), filed  a motion for award of  costs incurred pursuing
   its  protest  concerning  the   Department  of  Energy's  (DOE's)
   rejection of its bid as nonresponsive.   As a result of mediation
   by  the  hearing   judge,  the  alternative  dispute   resolution
   procedure agreed to by the  parties, the hearing judge  concluded
   that   respondent  violated  statute   and  regulation   in  that
   protester's  bid  should  not  have  been  deemed  nonresponsive.
   Pursuant to an agreement of  the parties, the result was accepted
   by  the  parties,  and  the  Board  dismissed  the  protest  with
   prejudice  on October  23,  1992.   In  accordance with  Rule 35,
   protester timely  filed a motion  to recover its costs  of filing
   and pursuing the protest.   Respondent has not filed any response
   to protester's motion for the award of protest costs.
 
                               Discussion
 
        Statute empowers the Board to award costs whenever the Board
   makes  a determination that a challenged agency action violates a
   statute  or regulation  or the  conditions of  any  delegation of
   procurement authority.  40 U.S.C.   759(f)(5)(B), (C) (1988).  As
   in prior  cases, this protester  asks the Board to  award protest
   costs when the underlying protest was settled and then  dismissed
   with prejudice. E.g.,  Syncsort, Inc. v. U.S.  Nuclear Regulatory
   Commission, GSBCA  11819-C(11753-P), 93-1 BCA   25,413,  1992 BPD
     247; Dun's Marketing Services, Inc., GSBCA 9875-C(9746-P), 89-1
   BCA   21,565,  1989 BPD   43.   Unlike earlier cost  cases, where
   the  record  consisted   principally  of  agency   admissions  or
   stipulations  reached by  the parties,  and a  defined  course of
   conduct to be followed by  the agency, the underlying record here
   also  contains a determination  by the  presiding judge  that the
   agency had improperly deemed protester's bid to be nonresponsive,
   Integrated Systems  Group, Inc.  v. Department  of Energy,  GSBCA
   12075-P,  slip op.  at  5 (Oct.  23, 1992).    These parties  had
   requested that the  assigned panel make  no determination on  the
   merits  under Rule 1(e).  Rather,  the parties agreed to be bound
   by  a determination of  the presiding judge--whatever  the result
   dictated  by  the presiding  judge,  the  parties  agreed  to  an
   alternative  dispute resolution  and that  the  protest would  be
   dismissed with prejudice and the  agency would act in  accordance
   with any suggested revision of its procurement authority.
 
        Although the Board did not resolve the merits of the protest
   in this case,  the protest was dismissed with prejudice, so as to
   operate  as an  adjudication on  the merits.   Rule  28(a).   For
   purposes  of  resolving  the pending  cost  motion,  the existing
   record enables the Board to determine that an agency violation of
   statute and  regulation occurred  and to  deem the  protester the
   prevailing party in this protest  for recovery of costs  incurred
   in filing and pursuing the protest.  The record reveals both that
   the  agency improperly deemed protester's bid to be nonresponsive
   (as the agency implicitly admits through the determination of the
   presiding judge), and that the agency has taken corrective action
   in direct response  to the protest, namely, the  agency agreed to
   amend the solicitation to state  its actual needs, and to proceed
   in accordance with statute and regulation.
 
        The agency  violated statute  and regulation; the  protester
   obtained  significant  relief.    Therefore,  the  protester  may
   recover its reasonable costs of filing and pursuing the protest.
 
        Protester  has  claimed $2,254  as  its cost  of  filing and
   pursuing  the protest.   This  includes  $1,275 representing  8.5
   hours of outside counsel's time  and $931 representing 3 hours of
   ISG's marketing representative's time for document preparation as
   well as 11  hours of ISG's vice president's  time for preparation
   of  the   protest,  conversations   with  outside   counsel,  and
   participation in the mediation proceeding, as well as preparation
   of  the cost  motion.    Finally, protester  has  claimed $48  in
   expenses including parking and messenger services.
 
 
        The Board  finds  both the  hours  expended and  the  amount
   billed  by  outside  counsel  to  be  reasonable.    The  $48  in
   protester's expenses are  also recoverable.  However,  as we have
   recognized, the Board is not  authorized to award in-house,  non-
   attorney costs  in excess  of  taxable costs.   Sterling  Federal
   Systems, Inc.  v.  National Aeronautics  & Space  Administration,
   GSBCA  10000-C(9835-P), 92-3 BCA   25,118, 1992 BPD   141, appeal
   docketed,  No. 92-1552  (Fed. Cir.  Sept.  28, 1992);  Integrated
   Systems  Group, Inc.  v.  Department of  the  Navy, GSBCA  12236-
   C(12127-P), 1993 BPD   25 (Jan. 22, 1993); Rocky Mountain Trading
   Co.  v. Department of the  Army, GSBCA 11033-C(20879-P), 1993 BPD
     20 (Jan. 14, 1993).
 
                                Decision
 
        For  reasons  stated  above, we  GRANT  IN  PART protester's
   motion  for  costs  and  award  protester the  amount  of  $1,323
   representing  outside counsel's  fees  and  expenses.    We  DENY
   protester's claims for in-house labor costs.
 
                                      __________________________
                                      MARY ELLEN COSTER WILLIAMS
                                      Board Judge
 
   We concur:
 
 
 
   ____________________________       ____________________________
   VINCENT A. LaBELLA                 JOSEPH A. VERGILIO
   Board Judge                        Board Judge