Information Sciences Corp. v. United States

88 Fed. Cl. 626, 2009 U.S. Claims LEXIS 349, 2009 WL 2868835
United States Court of Federal Claims·Decided September 2, 2009·No. No. 07-744C·Published·Cited by 17 cases

Opinion

MEMORANDUM OPINION AND FINAL ORDER

BRADEN, Judge.

This case concerns the court’s award of fees and costs for 2005 and 2007 bid protests, where the Government elected not to appeal the substantive merits of the court’s bid protest decisions, but instead has continued to litigate the court’s attorney fees and costs awards.

I. THE COURT’S PRIOR DECISIONS AND PROCEDURAL HISTORY.

On December 22, 2005, Information Sciences Corporation (“ISC”) filed a protest of the General Services Administration (“GSA”)’s December 7, 2005 award of the Federal Business Opportunities Contract (“FBO Contract”) to Symplicity Corporation (“Symplicity”) in the United States Court of Federal Claims. On December 29, 2005, Gallagher, Hudson, Hudson, and Hunsber-ger, Inc. (“DEVIS”) filed a Motion To Intervene, that the court granted. On September 19, 2006, the court issued a Memorandum Opinion And Final Order that set aside the December 7, 2005 award, because the court determined that the GSA violated FAR 15.306(c) in establishing the competitive range and the Source Selection Authority violated FAR 15.308 in not exercising independent judgment and not documenting that exercise. Info. Scis. Corp. v. United States, 73 Fed.Cl. 70, 114-22, 129 (2006) (“Info. Scis. I”).

On May 27, 2007, DEVIS filed an Application For Attorney Fees And Expenses, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). On October 25, 2007, the court issued a Memorandum Opinion And Final Order, awarding DEVIS attorney fees and expenses. Info. Scis. Corp. v. United States, 78 Fed.Cl. 673 (2007) (“Info. Scis. II”).

On September 28, 2007, GSA re-awarded the FBO Contract to Symplicity. On October 24, 2007, ISC filed a second protest. On October 29, 2007, DEVIS again filed a Motion To Intervene, that the court granted. On March 18, 2008, the court issued a Memo[629]*629randum Opinion And Final Order that set aside the September 28, 2007 award, finding that the GSA violated FAR 15.101 and FAR 15.308, by failing to “comply with the evaluation criteria set forth in the Solicitation.” Info. Scis. Corp. v. United States, 80 Fed.Cl. 759, 788-93 (2008) (“Info. Scis. III”)

On June 17, 2008, DEVIS filed an EAJA Application For Fees for the October 24, 2007 protest. On June 18, 2008, ISC also filed an EAJA Application For Fees. On March 31, 2009, the court issued a Memorandum Opinion And Final Order Regarding Attorney Fees And Expenses, awarding DE-VIS and ISC attorney fees and expenses. Info. Scis. Corp. v. United States, 86 Fed.Cl. 269 (2009) (“Info. Scis. IV”).

On April 16, 2009, DEVIS filed a Motion To Amend Judgment And Supplemental Application For Attorney Fees (“4/16/09 PI. Mot. to Am.”), together with two Exhibits (“4/16/09 PI. Mot. to Am. Ex. A-B”), requesting fees incurred for litigating the June 17, 2008 Application For Fees. On April 20, 2009, the Government filed a Motion For Reconsideration (“4/20/09 Gov’t Mot.”) of the March 31, 2009 Memorandum Opinion And Final Order granting DEVIS and ISC fees and other expenses. On June 10, 2009, DEVIS and ISC filed a Joint Response to the Government’s April 20, 2009 Motion For Reconsideration (“6/10/09 Pis. Jt. Resp.”). On June 15, 2009, the Government filed a Response (“6/15/09 Gov’t Resp.”) to the April 16, 2009 DEVIS’ Motion To Amend Judgment.

On June 24, 2009, DEVIS filed a Reply to the Government’s June 15, 2009 Response to DEVIS’ April 16, 2009 Motion To Amend (“6/24/09 DEVIS Reply”). On July 31, 2009, the Government filed a Reply to the June 10, 2009 Joint Response to the Government’s April 20, 2009 Motion For Reconsideration (“7/31/09 Gov’t Reply”).

II. DISCUSSION.

A. The Government’s April 20, 2009 Motion For Reconsideration.

1. The Government’s Argument.

The Government requests reconsideration of the award of attorney fees in Info. Seis. IV, arguing that the court made a “manifest error of law.” 4/20/09 Gov’t Mot. at 2. Specifically, the court: (1) “created and applied an improper standard to evaluate substantial justification;” (2) “failed to reduce the requested fees and costs commensurate with ISC and [DEVIS’] very limited success;” and (3) made other “clear mistakes of fact,” including that the award to DEVIS was reasonable. Id. at 1,10.

As a threshold matter, the Government’s decision was “substantially justified.” Id. at 2. Instead of applying the well-settled standard of “agency reasonableness,” the court held that “if the Government violates a regulation, that violation ipso facto is ‘unreasonable.’ ” Id. (quoting Info. Scis. TV, 86 Fed. Cl. at 284). The United States Supreme Court and numerous United States Courts of Appeals, however, have rejected a per se standard in determining whether the Government’s litigating position is “substantially justified.” Id. at 3. The United States Supreme Court held that the Government’s litigating position had a “reasonable basis in both law and fact,” if “a reasonable person could think it correct.” Id. at 3 (quoting Pierce v. Underwood, 487 U.S. 552, 556, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)). For this reason, the United States Court of Appeals for the Federal Circuit has never applied an ipso facto standard and rejected any interpretation of the EAJA as a mandatory fee-shifting statute. Id. at 4-5 (citing RAMCOR Services Group, Inc. v. United States, 185 F.3d 1286 (Fed.Cir.1999)). The Government argues that the court’s decision in Info. Seis. TV created a “new standard” that “effectively converts EAJA into a mandatory fee-shifting statute in bid protests in which a court determines that the agency violated a regulation.” Id.

In addition, the court erred in failing to make the necessary determination as to whether it should award fees for unsuccessful claims. Id. at 9-10. In the same vein, the court incorrectly determined that the relief sought by Plaintiffs was the same as the relief actually received. Id.

The court also erred in concluding that DEVIS’ billing three times the hours spent [630]*630by ISC was reasonable. Id. at 10-1Í. Although the court concluded that the DEVIS briefs were “longer than ISC’s, more factually-intensive, and, in the court’s judgment, were more cogent and persuasive than any other party’s briefs,” in fact, DEVIS’ briefs were only slightly longer than those of ISC. Id. at 10-11 (quoting Info. Seis. IV, 86 Fed. Cl. at 288). Moreover, the facts sections of DEVIS’ and ISC’s briefs were equivalent and ISC had a separate Statement Of Facts. Id. at 11. The bottom line is the court agreed with DEVIS on only two of the nine arguments advanced and ordered a remedy that was not requested by DEVIS, confirming that “the [cjourt was persuaded by something other than the cogency of [DEVIS’] briefs.” Id. at 12. Accordingly, the award of attorney fees to DEVIS was not reasonable and should be reconsidered. Id. at 10.

2.Plaintiff and Plaintiff-Intervenor’s Responses.

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Information Sciences Corp. v. United States, 88 Fed. Cl. 626, 2009 U.S. Claims LEXIS 349, 2009 WL 2868835 (uscfc 2009).

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