Favor Techconsulting, LLC v. United States
| Decision Date | 31 May 2017 |
| Docket Number | No. 16-1365 C,16-1365 C |
| Parties | FAVOR TECHCONSULTING, LLC, Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Competition In Contracting Act ("CICA"), 31 U.S.C. § 3553 (d)(3)(A) (Automatic Stay), (d)(3)(C) (Stay Override), (d)(4)(A) (Filing Period For Automatic Stay); Equal Access To Justice Act ("EAJA"), 28 U.S.C. § 2412.
Todd Robert Overman, Bass Berry and Sims PLC, Washington, D.C., Counsel for Plaintiff.
Antonia Ramos Soares, United States Department of Justice, Civil Division, Washington, D.C., Counsel for the Government.
On May 26, 2016, the Defense Intelligence Agency (the "DIA") issued a Solicitation, wherein the DIA announced that it planned to issue three Blanket Purchase Agreements ("BPAs") for certain information technology services. Favor TechConsulting, LLC v. United States, 129 Fed. Cl. 208, 210 (2016). On June 8, 2016, Favor TechConsulting, LLC ("FTC") submitted a quotation to the DIA. Id.
On September 27, 2016, FTC received an e-mail from a DIA Contracting Officer (the "CO") with an attached Unsuccessful Offeror Notification And Debriefing for FTC (the "Notice of Award"), dated September 27, 2016, notifying FTC that the three BPAs were awarded to other companies. Id.
On October 7, 2016, i.e., 10 days later, FTC filed a protest with the Government Accountability Office ("GAO") challenging the DIA's evaluation criteria, and requested an automatic stay of performance, pursuant to the Competition In Contracting Act (the "CICA"), 31 U.S.C. § 3553(d)(3)(A).2 Favor TechConsulting, 129 Fed. Cl. at 210-11.
On October 13, 2016, the DIA's counsel notified FTC that the BPAs were awarded on September 26, 2016, not September 27, 2016, so that FTC's protest was untimely for purposes of the CICA automatic stay. Id. at 211; see also 31 U.S.C. § 3553(d)(4)(A) ().
On October 14, 2016, FTC filed a Pre-Filing Notice Of Protest, as required by Rule 2 of Appendix C of the Rules of the United States Court of Federal Claims ("RCFC"). Favor TechConsulting, 129 Fed. Cl. at 211. Shortly thereafter, the Government contacted FTC and provided a copy of the cover pages of all three BPAs to show that a representative of the respective awardees signed the BPA on September 26, 2016. Id. The BPAs, however, also showed, under section 31c "Date Signed," that the CO signed on September 27, 2016. Id. Two of the BPAs also showed an "Award/Effective Date" of September 27, 2017. Id.
On October 19, 2016, FTC filed a Complaint ("Compl.") in the United States Court of Federal Claims, alleging that the DIA's failure to implement the automatic stay was arbitrary, capricious, lacked a rational basis, and was contrary to applicable law, and requesting an injunction to prevent the DIA from proceeding with performance of the BPAs, until a decision was issued on FTC's pending GAO protest. ECF No. 1. On that same day, FTC also filed: a Motion For Declaratory Judgment; a Motion For A Temporary Restraining Order; a Motion For A PreliminaryInjunction; and a Memorandum Of Points And Authorities In Support Of Plaintiff's Motions. ECF Nos. 4-5. Also on that same day, the court convened a telephone status conference, during which the Government represented that the automatic stay was not instituted, because the actual date of award was September 26, 2017, and the procurement was "mission critical." Favor TechConsulting, 129 Fed. Cl. at 211.
Thereafter, on October 19, 2016, the court issued a Memorandum Opinion And Temporary Restraining Order ("TRO"), to prohibit performance of the three BPAs until October 26, 2016, so that the Government had time to demonstrate that award in fact was made on September 26, 2016 and, if the procurement indeed was "mission critical," to obtain an override, pursuant to 31 U.S.C. § 3553(d)(3)(C).3 See Favor TechConsulting, LLC v. United States, No. 16-1365, 2016 WL 6123571 (Fed. Cl. Oct. 19, 2016).
On October 24, 2016, the court convened a telephone status conference, during which the Government advised the court that a filing would be made later in the day. See Favor TechConsulting, 129 Fed. Cl. at 211. Accordingly, the court extended the TRO until November 3, 2016, to afford Plaintiff time to respond to the Government's filing. See Favor TechConsulting LLC v. United States, 129 Fed. Cl. 392, 393 (2016). Later that day, the Government filed a Brief In Response To The Court's October 19, 2016 Order ("Gov't Resp.") and an Appendix ("Gov't App'x") including: e-mails generated by the DIA's Contracting Management System ("CMS"); the CMS Operations Manual; and the October 24, 2016 Declarations of Donald Camden, the DIA Contracting Chief; Ryan Corcoran Luhman, a DIA CO; and Holly Carr, a DIA Contracting Specialist. ECF No. 10. On October 31, 2010, FTC filed a Reply. ECF No. 11.
On November 3, 2016, the court entered a Memorandum Opinion And Order determining the DIA's denial of the CICA automatic stay to be arbitrary, capricious, unlawful, and an abuse of agency discretion, and entered judgment declaring that FTC's filing with the GAO was timely for purposes of the 10 day deadline under the CICA. See Favor TechConsulting, 129 Fed. Cl. at 217. Accordingly, the court ordered the DIA to institute the CICA automatic stay until FTC's pending GAO bid protest was resolved. Id.
On November 4, 2016, the DIA filed a Notice Of Corrective Action with the GAO, indicating that the DIA would re-evaluate proposals and make a new source selection decision. Pl. Mot. Att. A. On November 8, 2016, the GAO issued a decision dismissing FTC's protest, because the DIA had taken corrective action. Gov't Fee App'x at A1.
On February 1, 2017, FTC filed a Motion For Attorneys' Fees And Related Expenses ("Pl. Mot."), pursuant to the Equal Access To Justice Act, 28 U.S.C. § 2412 (the "EAJA"). ECF No. 18. On March 6, 2017, the Government filed a Response ("Gov't Resp."). ECF No. 19. On March 13, 2017, the Government filed a Notice Of Additional Authority ("Gov't Notice"). ECF No. 20. On March 23, 2017, FTC filed a Reply ("Pl. Reply") and attachments ( ). ECF No. 21.
The United States Supreme Court has held that recovery under the EAJA requires: "(1) that the claimant be a 'prevailing party';4 (2) that the Government's position was not 'substantially justified'; (3) that no 'special circumstances make an award unjust'; and, (4) pursuant to 28 U.S.C. § 2412(d)(1)(B), that any fee application be submitted to the court within 30 days of final judgment in the action and be supported by an itemized statement." Comm'r, INS v. Jean, 496 U.S. 154, 158 (1990).
FTC argues that it is entitled to reasonable attorney fees and related expenses under the EAJA. Pl. Mot. at 4. First, FTC asserts that it is a "prevailing party," because it obtained a judgment from the court requiring the DIA to institute the CICA automatic stay, i.e., FTC received the relief it requested. Pl. Mot. at 5-6. In addition, FTC meets the EAJA's net worth and sizerequirements,5 because it is a small business that had fewer than 500 employees and a net worth that did not exceed $7,000,000 when the October 19, 2016 Complaint was filed. Pl. Mot. at 5; see also Pl. Mot. Att. C-1 (FTC's 2014 & 2015 Audited Financial Statements); C-2 (FTC's 2015 Federal Income Tax Return); C-3 (FTC's payroll for October 2016); C-4 (FTC's unaudited 9/30/16 balance sheet).
Since FTC has established that it is a "prevailing party," the burden then shifts to the Government to establish that its position was not "substantially justified." Pl. Mot. at 6. But, the Government's litigation position was not "substantially justified." Pl. Mot. at 6-7 (). In addition, there are no "special circumstances" that would make an award of attorney fees unjust. Pl. Mot. at 7.
FTC adds that the February 1, 2017 Motion For Attorneys' Fees was timely. Pl. Mot. at 5. An EAJA fee application must be submitted within 30 days of a judgment becoming "final and not appealable." 28 U.S.C. § 2412(d)(2)(G) (emphasis added). Under the Federal Rules of Appellate Procedure, the Government had 60 days to appeal the court's November 3, 2016 Memorandum Opinion And Order. Fed. R. App. Proc. 4(a)(1)(B)(i) (). As such, the November 3, 2016 Memorandum Opinion And Order became "not appealable" on January 3, 2017, i.e., 60 days after it was filed. Pl. Mot. at 5. FTC then filed its application for attorney fees on February 1, 2017, i.e., less than 30 days later. Pl. Mot. at 5.
Because FTC has met the legal standard for recovery under the EAJA, it is entitled to reasonable attorney fees and other expenses.6 See 28 U.S.C. § 2412(d)(2)(A). In support, FTCfiled an itemized statement that shows the "actual time expended and the rates at which fees and other expenses were computed." Pl. Mot. at 8; see also 28 U.S.C. § 2412(d)(1)(B) (). This statement evidences the fees and expenses that FTC incurred in litigating this case and preparing the fee application....
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