GRANTED IN PART: September 8, 1992
                                                  
 
 
                      GSBCA 10781-C(10642-P)-REIN
 
 
                   SYSOREX INFORMATION SYSTEMS, INC.,
 
                                           Protester,
 
                                   v.
 
                      DEPARTMENT OF THE TREASURY,
 
                                           Respondent.
 
        Carleton S. Jones,  Campbell Killefer, and Jonathan  T. Cain
   of Shaw, Pittman, Potts & Trowbridge, Washington, DC, counsel for
   Protester.
 
        William  L.  Murphy  and Mark  K.  Hingston,  Office of  the
   General Counsel,  Department  of the  Treasury,  Washington,  DC,
   counsel for Respondent.
 
   Before the Full Board.
 
   DANIELS,  Board Judge, with whom LaBELLA, DEVINE, BORWICK, NEILL,
   PARKER, HYATT, WILLIAMS, and VERGILIO, Board Judges, concur.
 
        On July  20, 1990, this  Board granted a protest  brought by
   Sysorex  Information Systems, Inc. (Sysorex) against the award of
   a contract by the Department  of the Treasury (Treasury) to Sears
   Business Systems Centers,  a unit of Sears, Roebuck and  Co.  The
   contract,  known as  the  Departmental Microcomputer  Acquisition
   Contract   (DMAC-II),  was   an  indefinite   delivery-indefinite
   quantity vehicle through which Treasury and all its bureaus might
   order microcomputer hardware, software,  local area networks, and
   services.    We  found,  as  Sysorex  and  its  fellow-protesters
   alleged,  that  the  award  was  in   violation  of  statute  and
   regulation because the proposal made  by the awardee did not meet
   ten separate mandatory requirements of the solicitation.  Sysorex
   Information  Systems, Inc.,  GSBCA  10642-P,  et  al.,  90-3  BCA
     23,181,  1990  BPD    193,  reconsideration  denied,  91-1  BCA
     23,334, 1990 BPD   255.
 
        On August 20, 1990, Sysorex timely filed a motion under Rule
   35 for award  of costs  incurred in  prosecuting these  protests.
   Sysorex   sought  an  award  of  $414,854.07  in  protest  costs,
   consisting  of $290,547.50  in  legal  fees  and  $124,306.57  in
   disbursements.  The latter category includes $81,312.52 in expert
   consultant and witness fees and $42,994.05 in charges for courier
   service, local  transportation, long-distance  telephone service,
   deposition  and  hearing   transcripts,  secretarial  and   legal
   assistant overtime, document reproduction and exhibit production,
   computerized  legal  research,  telecopier usage,  and  equipment
   rental and testing.  Sysorex supplemented its motion on September
   17, 1990, to request reimbursement for an additional $7,150.91 in
   specified  disbursements, almost all  of which was  for copies of
   hearing transcripts.
 
        Our decision in the underlying protest was  then appealed to
   the Court  of Appeals for  the Federal Circuit.   On November  1,
   1990, in  accordance with  Board policy,  we dismissed  Sysorex's
   cost case  without prejudice, pending  resolution of the  case by
   the Court of Appeals.   Sysorex Information Systems,  Inc., GSBCA
   10781-C (10642-P), 1990 BPD   365.
 
        The Court affirmed  our protest decision  on July 30,  1991.
   SMS Data Products Group, Inc. v. Austin, 940 F.2d 1514 (Fed. Cir.
   1991).  On August 14, 1991, Sysorex timely moved to reinstate the
   case involving  its request for reimbursement of  costs.  Sysorex
   then supplemented its  motion on September 12, 1991,  to ask that
   reimbursement  also be  made  for  seventy-five  percent  of  the
   attorney  fees  expended in  the proceeding  before the  Court of
   Appeals  --  $28,076.25.   (Sysorex  made  a  twenty-five percent
   reduction in costs incurred before the Court in light of the fact
   that of  the four issues  addressed by  the firm  on appeal,  one
   pertained to the  Board's holding in a related  protest, SMS Data
   Products Group, Inc., GSBCA 10864-P, 91-1 BCA    23,464, 1990 BPD
     348.  Sysorex  intervened in  that protest on  the side of  the
   Government.)
 
        Treasury  responded to the  request, as amended,  by raising
   two objections.   First,  the agency noted  that the  hourly rate
   billed  by Sysorex's lead  counsel was $260  (actually, only $255
   until the case went on appeal),  and maintained that this rate is
   excessive.    Treasury  suggested  that no  rate  above  $200  be
   approved.  Second,  the agency urged us  to rely on a  holding of
   the  Court of  Appeals for  the  Federal Circuit  by denying  all
   claimed costs incurred on appeal.
 
        The case has been referred to the full Board for the purpose
   of overruling Board  precedent as to the second  matter raised by
   Treasury.  The decision also expressly states that the Board does
   not  require  Treasury  to  reimburse  the  permanent  indefinite
   judgment fund in an amount equal to the funds awarded to Sysorex.
 
                               Discussion
 
        The Brooks Act provides that whenever this Board "determines
   that  a challenged agency action violates a statute or regulation
   or the  conditions of  any delegation  of procurement  authority"
   from  the General Services Administrator, we may "further declare
   an appropriate  interested party to  be entitled to the  costs of
   . . .  filing and  pursuing  the  protest,  including  reasonable
   attorney's  fees."   40 U.S.C.    759(f)(5)(C)(i)  (1988).   This
   statute "implies that a prevailing protestor should be made whole
   from pursuing its protest so long as  the fees and costs it seeks
   to  recover  are  reasonable."    United  States  v.  Compusearch
   Software Systems, 936 F.2d 564, 566 (Fed. Cir. 1991).
 
        Our  decision in  the protest  underlying  this cost  motion
   contains  a  clear  finding that  the  challenged  agency actions
   violated statutory and regulatory provisions.  Sysorex, as one of
   three  protesters who  contested  these  actions,  is  surely  an
   "appropriate interested party."  
 
        Insofar  as costs  incurred  at  the  Board  are  concerned,
   Treasury  objects only  to the  rates  charged by  the attorneys,
   which ranged upward to $255 per hour.   The Brooks Act permits an
   award  of such  attorney fees as  we find  to be reasonable.   40
   U.S.C.   759(f)(5)(C)(i) (1988).  This statute does not contain a
   cap on attorney rates, as does, for example,  the Equal Access to
   Justice Act, 5 U.S.C.   504(b)(1)(A) (1988) ($75 per hour "unless
   the agency determines by regulation  that an increase in the cost
   of living or a special factor . . . justifies a higher fee").  We
   decline  Treasury's   invitation   to  limit   our  analysis   of
   reasonability  by declaring that  no fees above  a specified rate
   will be considered.
 
        Sysorex's lead counsel  certified that the rates  charged in
   this case "represent the hourly rates established and charged  by
   Shaw,  Pittman,  Potts  & Trowbridge  during  the  period  of the
   protest  for  services  performed  by  those   . . .  personnel."
   Motion, Exhibit  C at 2.  Published  sources indicate that a rate
   of $255  for a senior  partner was, during  the time period  when
   this protest was before the  Board, well within the range charged
   by  law  firms  in  the  area in  which  this  firm  is  located,
   Washington, D.C.   See, e.g., Legal Times, Dec. 18 & 25, 1989, at
   17-18 (showing a  1989 range of hourly billing  rates of selected
   major firms as $75 to $380); National Law Journal, Nov. 19, 1990,
   at  S1-S12  (similar   firms,  $75  to  $400).     Based  on  our
   observation, we find  that the case was extremely  complex from a
   technical perspective,  and that  Sysorex's lead  counsel in  the
   case is a superior lawyer who demonstrated great skill in dealing
   with this  complexity.  We  conclude, in light of  these findings
   and the  rates generally charged  by law firms in  the community,
   that the rate charged by this lawyer in this case was reasonable.
 
        We do  make one  reduction, which was  not addressed  by the
   parties, from the total amount sought by Sysorex as  the costs of
   proceeding  before  the  Board.   This  is  from  the  $81,312.52
   requested as  reimbursement  for expert  consultant  and  witness
   fees.   As the  full Board recently  decided in  Sterling Federal
   Systems,  Inc. v.  National  Aeronautics &  Space Administration,
   GSBCA  10000-C(9835-P), 1992  BPD    141  (May  22,  1992),  fees
   charged  by expert  consultants for non-testimonial  services are
   not  compensable under the  Brooks Act  because they  are neither
   taxable costs  (as that  concept is defined  at 28  U.S.C.   1920
   (1988))   nor  attorney  fees.    See  West  Virginia  University
   Hospitals,  Inc.  v. Casey,  111  S.  Ct. 1138  (1991);  Crawford
   Fitting Co. v. J.T.  Gibbons, Inc., 482 U.S. 437 (1987).   Of the
   amount  sought, Sysorex  is  entitled only  to  witness fees  (as
   authorized by 28 U.S.C.A.   1821 (West Supp. 1991)).
 
 
        Sysorex  retained  three  consultants who  testified  in the
   course of the proceedings on the protest.  Each of them testified
   at both deposition and hearing, for one day on each occasion; one
   testified as a rebuttal witness on a separate day of the hearing,
   and  the other  two  appeared  on that  day  because counsel  was
   contemplating calling them as rebuttal witnesses.  For these nine
   person-days of testimony, Sysorex is entitled to reimbursement of
   $30  per day, or a  total of $270, in  witness fees.  28 U.S.C.A.
     1821(b) (1988).1   One of the witnesses traveled  each day from
   Baltimore to  Washington for  the testimony.   He  has documented
   travel of  280  miles by  privately-owned  vehicle.   Sysorex  is
   entitled to  reimbursement for  this transportation  at the  rate
   which was  allowed at that  time by the Administrator  of General
   Services, twenty-four  cents per mile.   Id.   1821(c)(2).    The
   total amount  for mileage is  $67.20.  Sysorex has  also provided
   documentation  that two  of  the  witnesses  incurred  costs  for
   parking and taxicab fares,  in the total amount of $52.50.   This
   is reimbursable  as well.   Id.   1821(c)(3).  Of  the $81,312.52
   Sysorex  seeks as reimbursement for expert consultant and witness
   fees, we consequently award $389.70.
 
        The total  amount awarded for appearance before the Board is
   $341,082.16.
 
        Whether Sysorex should  be reimbursed for costs  it incurred
   in defending  its protest  victory at the  Court of Appeals  is a
   separate matter.   The Board has previously held  that such costs
   may be awarded:
 
             [T]his Board may award protest costs  for the
             purpose of making the protester whole for its
             effort in enforcing the law.  Furthermore, it
             seems  quite clear to  us that the  "costs of
             filing and pursuing the protest" may  include
             the  cost  of  pursuing  the protest  to  its
                       
   ____________________
 
        1    The rate  was increased to  $40 per day on  December 1,
   1990.  We  apply the rate that  was in effect when  the witnesses
   testified.  Sterling Federal, 1992 BPD   141, at 3 n.2.
               ________________
 
             rightful  end  on   appeal  when  a  decision
             rendered by  this  Board is  appealed to  our
             appellate  authority  . . . .    To  conclude
             otherwise would undo the plain purpose of the
             statute.
 
   Thorson  Co., GSBCA 8820-C(8185-P), 87-1 BCA   19,633, at 99,387,
   1987 BPD   26,  at 3.   We called to  the parties' attention  the
   Court  of Appeals'  decision  in  Grubka  v.  Department  of  the
   Treasury, 924 F.2d 1039 (Fed.  Cir. 1991), and asked for briefing
   on the relevance of that holding to our earlier conclusion.
 
        In Grubka (and in another case, Phillips v. General Services
   Administration,  924  F.2d  1577  (Fed.  Cir.  1991))  a  federal
   employee had succeeded in reversing an agency's adverse personnel
   action.   The  employee was  then  awarded by  the Merit  Systems
   Protection  Board (MSPB)  attorney  fees  incurred in  proceeding
   before both that board and, on  appeal, the Court of Appeals  for
   the Federal Circuit.  The MSPB believed that in making the award,
   it was acting under authority of 5 U.S.C.   7701(g) (1988).  That
   law provides  that the  MSPB "may require  payment by  the agency
   involved of reasonable  attorney fees incurred by an  employee or
   applicant  for employment  if the  employee or  applicant  is the
   prevailing party and  the Board . . . determines  that payment by
   the agency is  warranted in the interest of justice."   The Court
   held  that this  statute gives  the MSPB  "no authority  to award
   attorney fees  for services rendered  by an attorney in  court in
   connection with a judicial review  of a board decision."  Grubka,
   924 F.2d at 1040;  Phillips, 924 F.2d at 1580.   According to the
   Court, award of attorney fees  and expenses incurred on appeal is
   to be made  by the Court itself, if  separate statutory authority
   for  such award exists.  The  Court found that judicial review of
   MSPB  decisions is  governed  by 5  U.S.C.A.    7703 (West  Supp.
   1991),  which does not  contain a provision  authorizing award of
   attorney fees incurred in conjunction with such review.   Grubka,
   924 F.2d at  1040; Phillips, 924 F.2d at 1580  (each citing Olsen
   v. Department  of Commerce, Census  Bureau, 735 F.2d  558, 560-61
   (Fed. Cir. 1984), and Gavette v.  Office of Personnel Management,
   808 F.2d 1456, 1468 (Fed. Cir. 1986) (in banc)). 
 
        Sysorex urges us to follow Thorson and distinguish Grubka on
   the ground that the purposes of the  Brooks Act and Civil Service
   Reform  Act fee-shifting  provisions are  different.   Under  the
   former statute, attorney fees and  costs are to be reimbursed "to
   encourage  private  enforcement  of   the  laws  and  regulations
   mandating  the  acquisition  of  general  purpose  automatic data
   processing  resources   through  full   and  open   competition."
   Thorson, 87-1  BCA  at 99,386,  1987  BPD   26,  at 2.    Section
   7701(g) of the  Civil Service Reform  Act, on the other  hand, is
   intended to  obviate the  need for  successful MSPB claimants  to
   file separate civil actions for the  recovery of costs.  S.  Rep.
   No. 969,  95th Cong.,  2d Sess. 60-61  (1978), reprinted  in 1978
   U.S. Code Cong. & Admin.  News 2782-83.2  The broader  purpose of
   the Brooks Act's fee-shifting provision can only be accomplished,
   Sysorex concludes, if the Board is  to continue to treat the term
   "protest" expansively, to include the defense of an appeal of one
   of our decisions.
 
 
        In   searching   for  guidance   in  support   of  Sysorex's
   proposition, the most  helpful case we have found  is Sullivan v.
   Hudson, 490 U.S. 877 (1989).  There,  the Supreme Court held that
   where judicial and  administrative consideration of a  matter are
   closely intertwined, if the court hearing  the case has authority
   to award  attorney  fees  to  the prevailing  party  against  the
   Government, it  may  include  such  fees  as  were  necessary  to
   vindicate  the party's rights in the administrative proceeding --
   even if the administrative agency itself was without authority to
   make the  award as  to  representation before  it.   To rule  for
   Sysorex, however, we would have to turn this holding on its head,
   concluding that an administrative tribunal which has authority to
   award  attorney  fees  incurred  in  proceedings  before  it  may
   include, without explicit  statutory authorization, such  fees as
   were necessary to prevail before a court on appeal. 
 
        Under  the  "American  Rule,"  the  prevailing  litigant  is
   ordinarily not entitled to collect  attorney fees from the loser.
   Alyeska Pipeline Service Co. v. Wilderness Society,  421 U.S. 240
   (1975).   A prevailing  litigant may collect  such fees  from the
   Government only  when expressly authorized  by statute.   Any law
   permitting an award of the fees constitutes a waiver of sovereign
   immunity   and   consequently   must   be   strictly   construed.
   Ruckelshaus v. Sierra Club, 463  U.S. 680, 685-86 (1983).  Grubka
   and  Phillips  are  consistent with  these  general  precepts; as
   Treasury  suggests, the decisions dictate that because the Brooks
   Act does not expressly grant  us authority to award attorney fees
   incurred in defending  a protest victory against  an unsuccessful
                       
   ____________________
 
        2    The legislative history referenced by Sysorex describes
   a  provision  contained  in  a  Senate bill  which  was  modified
   significantly   prior  to  enactment.    The  Senate  would  have
   permitted the MSPB  to award reasonable attorney fees  only if it
   determined that the  agency's action was taken in  bad faith; the
   statute as enacted  permits an award where the  MSPB finds simply
   that payment  "is warranted in  the interest of justice."   We do
   not know whether this difference, or some other deviation between
   proposed  and enacted  bills,  accounts  for  the  divergence  in
   opinion  between the  Senate committee  and the  Court as  to the
   authority  of  the  appellate court  to  award  attorney fees  in
   section  7701(g) MSPB cases.   What  is key  to our  reasoning in
   resolving  the instant  case is  the  Court's determination  that
   where  a  statute  permits an  administrative  tribunal  to grant
   attorney fees, but does not explicitly provide for judicial award
   of  such   fees   on  appeal,   no  authority   exists  for   the
   administrative  tribunal  to  award fees  incurred  in  the court
   action.
   appeal, we may not exercise such authority.  The laws involved in
   those cases and  this one are strikingly similar.   Both statutes
   permit  a defined  set of  parties to  seek review,  by a  quasi-
   judicial tribunal located  in the executive branch, of  an agency
   determination.   5 U.S.C.    7701 (1988);  40 U.S.C.    759(f)(1)
   (1988).  Both permit the tribunal to award costs to a party if it
   prevails   against   the   Government  in   that   administrative
   proceeding.  5 U.S.C.   7701(g); 40 U.S.C.   759(f)(5)(C).   Both
   allow the tribunal's "final decision" to be appealed to the Court
   of Appeals for the Federal Circuit, and make no mention of a cost
   award in connection  with the appellate  proceeding.  5  U.S.C.A.
     7703(b) (West Supp. 1991); 40 U.S.C.   759(6)(A).   Given these
   similarities,  we cannot distinguish the instant case from Grubka
   and Phillips in  any meaningful way, insofar as the  issue at bar
   is concerned.
 
 
        In  Thorson,  we  stated  that  the  "'costs  of  filing and
   pursuing  the  protest'  may include  the  cost  of  pursuing the
   protest  to its  rightful end  on appeal . . . ."   We  no longer
   consider  the  quoted   statutory  provision  to   be  sufficient
   authority for us to award costs for pursuing a protest beyond the
   Board level.   We note that in Thorson,  we were not requested to
   consider -- and did not  consider -- the impact of  our appellate
   authority's  strict application  of  the  American  rule  in  the
   absence of  explicit  statutory exceptions.   Our  review of  the
   decisions in Grubka and Phillips, which were issued subsequent to
   Thorson,  persuades us  that  the  last-named  case  was  decided
   incorrectly.
 
                                Decision
 
        We  award  to  Sysorex  $341,082.16,  to  be  paid,  without
   interest,  from the permanent indefinite judgment fund, 31 U.S.C.
     1304 (1988).  40 U.S.C.    759(f)(5)(C) (1988).  The Board does
   not  require that  Treasury reimburse the  judgment fund  for the
   amount awarded.3
                       
   ____________________
 
        3    Judges Devine,  Borwick, Daniels, Parker,  and Vergilio
   believe that  this result  is proper because  the Board  does not
   have any authority  to order an agency to reimburse  the fund for
   protest  cost  awards.    The rationale  for  their  position  is
   explained   in   Julie   Research   Laboratories,   Inc.,   GSBCA
                    _______________________________________
   9075-C(8919-P),  89-1  BCA    21,213,  1988  BPD   208  (separate
   opinion  of   Judge  Borwick);  Federal  Computer   Corp.,  GSBCA
                                   _________________________
   10527-C(10389-P),  92-1 BCA    24,415,  1991 BPD    222 (separate
   opinion of  Judge Vergilio);  and Communications  Resource Group,
                                     _______________________________
   Inc. v. General Services Administration, GSBCA  11038-C(10998-P),
   _______________________________________
   92-2 BCA   24,769, 1992 BPD   29 (part VI of separate  opinion of
   Judge Daniels).  Judge Hendley believes that the result is proper
   for  the reasons  explained in  his concurring  opinion.   Judges
   LaBella,  Neill,  Hyatt,  and Williams  would  order  Treasury to
   reimburse  the  fund.    The  rationale  for  their  position  is
   explained in the majority opinions in Julie and Federal Computer.
                                         _____     ________________
 
        Sysorex's   cost  motion  is  denied  insofar  as  it  seeks
   reimbursement of costs incurred before the Court of Appeals.  The
   Board's  earlier  decision  on this  matter,  Thorson  Co., GSBCA
   8820-C(8185-P),  87-1 BCA   19,633,  1987 BPD   26,  is expressly
   overruled.
 
                                      _________________________
                                      STEPHEN M. DANIELS
                                      Board Judge
 
   We concur:
 
 
 
   _________________________          _________________________
   VINCENT A. LaBELLA                 DONALD W. DEVINE
   Board Judge                        Board Judge
 
 
 
   _________________________          _________________________
   ANTHONY S. BORWICK                 EDWIN B. NEILL
   Board Judge                        Board Judge
 
 
 
   _________________________          _________________________
   ROBERT W. PARKER                   CATHERINE B. HYATT
   Board Judge                        Board Judge
 
 
 
   _________________________          _________________________
   MARY ELLEN COSTER WILLIAMS         JOSEPH A. VERGILIO
   Board Judge                        Board Judge
   HENDLEY, Board Judge, concurring. 
 
 
        I join  fully in  all aspects of  the majority  opinion save
   one,  and even there  I concur  in the  result.   Specifically, I
   agree with the reasoning as well as the result that finds Thorson
   Co., GSBCA 8820-C(8185-P), 87-1 BCA    19,633, 1987 BPD   126, no
   longer  in  accord  with  the  law  of  our  circuit.    My  only
   disagreement   with  my   colleagues  is   that   I  view   their
   preoccupation  with our authority  to order reimbursement  of the
   judgment fund as more metaphysical than real.  Whether or not the
   Board has the authority  to direct reimbursement of  the judgment
   fund,  I agree  that we  should not  order reimbursement  for the
   reasons set out below.
 
        Do we  have the  statutory authority to  order an  agency to
   reimburse the  judgment fund in  the amount of the  protest costs
   awarded?  Although good  arguments may be made on  either side of
   the question, the overriding fact  is that the agencies have been
   ignoring such  orders, i.e., they  are not reimbursing  the fund.
   The Department of Justice has rendered an opinion stating that we
   are without authority to require agencies to reimburse  the fund.
   Memorandum  for  William J.  Haynes,  II,  prepared  by the  U.S.
   Department of Justice,  Office of Legal  Counsel (May 29,  1990).
   Our appellate  authority, the  Court of  Appeals for  the Federal
   Circuit, dismissed an  agency appeal of such an  order because it
   was an  "intra-governmental dispute"  and hence  not justiciable.
   United States v. Julie Research Laboratories, Inc., 881 F.2d 1067
   (Fed. Cir. 1989).4   I am more  than reluctant to issue  an order
   requiring  reimbursement which can not be enforced, thus creating
   the impression that our orders may be ignored with impunity.
 
        My  overriding  concern is  to  avoid "Fed  Mail,"  i.e., an
   agency's use of  non-agency funds to pay a  protester to go away.
   Permitting  an  agency  to  use  non-agency  funds, such  as  the
   judgment   fund,  to  settle  a  protest,  removes  an  important
   adversarial balance to the  process and thereby invites raids  on
   the treasury.   Such a settlement is suspect  because it involves
   nothing more than A and B agreeing that C (the judgment fund) pay
   costs,  a happy solution not generally  available to litigants in
   the civilized world.
 
        The aims of the Board  members who would order reimbursement
   are   laudatory.     Reimbursement  would   more   sharply  focus
   accountability   for   agency  settlements.      However,  actual
                       
   ____________________
 
        4    Our appellate court noted, in the context of an appeal,
   that the agency's failure to reimburse the fund was irrelevant to
   the  protester,  inasmuch  as  protester   would  obtain  payment
   regardless  of  whether the  fund  is  ever  reimbursed.    Julie
                                                               _____
   Research, 881 F.2d  at 1068.  Thus, although  our appellate court
   ________
   did  not  conclude  that  we were  without  authority  to require
   reimbursement  of the  judgment fund,  the  decision hinders  the
   direct enforcement of our order.
   reimbursement is not  occurring, and we have  no feasible ability
   to enforce reimbursement.   Accordingly, I view   as academic the
   issue of our authority to direct reimbursement, and  instead seek
   to accomplish a more useful result.
 
 
        The Brooks Act prescribes the  result, as it authorizes this
   Board  to  declare  entitlement  to  costs  only when  the  Board
   determines  that a challenged  agency action violates  statute or
   regulation or  the conditions  of any  delegation of  procurement
   authority.   40  U.S.C.     759(f)(5)(A), (C)  (1988).5   In  the
   underlying protest before the Board, the Board reached the merits
   of  the protest  and found an  agency violation of  statute.  The
   prerequisite to awarding costs exists.  I would declare protester
   entitled to the costs, as does the majority.  Given that the case
   has  been  fully litigated,  there  is  no  reason to  reach  the
   question of reimbursing  the judgment fund.  The  treasury is not
   being raided; there is no hint of Fed Mail.  The statute does not
   direct the Board to require reimbursement.
 
        Contrast the  present scenario  with that  of a  settlement.
   The specter  of Fed  Mail rears  its head  as a  potential to  be
   confronted in every  settlement case.  The Brooks  Act implicitly
   recognizes this.  When a  protest is settled, the Board  does not
   determine that a challenged agency  action is improper, the Board
   does not  know what might  have motivated the settlement.   Under
   the statute, the Board is  unable to declare entitlement when the
   parties settle a case.
 
        Parties  should  not read  the  above views  as  providing a
   disincentive  to resolving  protests.    If at  any  time in  the
   protest process  an  agency recognizes  that  it has  violated  a
   statute, regulation,  or conditions of  procurement authority, it
   may  admit to  a violation,  or recognize  that particular  facts
   exist or  actions  occurred.   Such an  agency recognition  could
   enable  the  Board   to  grant  the   protest  under  40   U.S.C.
     759(f)(5)(A) (1988).  The  Board could then revise, revoke,  or
   suspend  procurement authority  to direct  the agency  on how  to
   proceed  with  the  procurement, id.    759(f)(5)(B),  and  could
   declare an  appropriate party  to be entitled  to its  costs, id.
     759(f)(5)(C).   I would  allow use of  judgment fund  monies in
                       
   ____________________
 
        5    The Brooks Act contains the following language:
 
        Whenever the board  makes such a determination  [that a
                     _____
        challenged agency action violates a statute, regulation
        or  the conditions  of any  procurement authority],  it
        may,  in  accordance  with section  1304  of  title 31,
        ___
        United  States  Code,  further declare  an  appropriate
        interested  party  to  be entitled  to  the [specified]
        costs[.]
 
   40 U.S.C.   759(f)(5)(C) (1988).
   such cases so long as the settlement is clearly not tied  in with
   or  contingent  upon the  protester's  recovery of  costs  in any
   amount.  
 
 
        Parties  should not  understand  my  position as  permitting
   access to the judgment fund if the agency ties its admission to a
   payment to protester or other parties  or if the agency fails  to
   correct a correctable impropriety.   In short, I would declare no
   entitlement in situations involving settlements in which Fed Mail
   appears to be a possibility.
 
        The Brooks Act establishes a  bright line test (a test which
   also  avoids the issue of our authority to direct reimbursement):
   If the  Board actually resolves  the merits of a  protest (either
   based on findings of fact and conclusions or law, or stipulations
   or admissions, or  the like, by  the agency) and finds  an agency
   violation, then  the Board  may declare a  party entitled  to its
   costs, and  the judgment  fund may be  utilized.  If  the parties
   simply  settle  a  protest,  so  that  the  Board  is  unable  to
   unequivocally find an agency violation, the Board may not declare
   a party entitled to its costs.  In a settlement, the door of  the
   judgment fund is closed, whether or not it would be reimbursed.
 
        Elegant or  not, this  application of  the Brooks  Act fully
   recognizes, and  is  true to,  the  language in  our  authorizing
   statute.     It  keeps  in  perspective  the   interests  of  the
   Government,  the agency,  and  the parties  before  us.   Certain
   settlements remove  the Board  from a  continued presence  in the
   protest process.  By denying access to the judgment fund when the
   parties, not  the Board, resolve  the merits of the  protest, the
   Board does not acquiesce in any raid on the treasury.
 
        It is now clear that we can no longer effectively require an
   agency to reimburse the judgment fund, and apparently no one will
   help us do so.  However, we should not allow ourselves to be made
   a party to settlements to be paid from the judgment fund.
 
                                      _________________________
                                      JAMES W. HENDLEY
                                      Board Judge