In the United States Court of Federal Claims
No. 16-44C
(Filed: March 31, 2017)
(Re-filed: April 10, 2017)1
**********************
STARRY ASSOCIATES, INC.,
Plaintiff,
v.
Bid Protest; Equal Access to
THE UNITED STATES,
Justice Act; Attorney Fees;
Special Factors
Defendant,
and
INTELIZANT, LLC,
Intervenor.
**********************
Lars E. Anderson, Reston, VA, with whom was James Y. Boland,
Tysons Corner, VA, for plaintiff.
Alexis J. Echols, Trial Attorney, United States Department of Justice,
Civil Division, Commercial Litigation Branch, Washington, DC, Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, Robert E. Kirschman, Jr.,
Director, Douglas K. Mickle, Assistant Director. Christian Maimone, Office
of General Counsel, U.S. Department of Health and Humans Services, of
counsel.
1
This opinion was originally issued under seal in order to afford the parties
an opportunity to propose redactions of protected information. The parties
have agreed that no redactions are necessary.
OPINION AND ORDER
Bruggink, Judge.
On July 15, 2016, we granted judgment on the administrative record in
favor of plaintiff in this post-award bid protest. Starry Assocs., Inc. v. United
States, 127 Fed. Cl. 539 (2016). Starry Associates, Inc. (“Starry”) protested the
Department of Health and Human Services’ (“HHS”) decision to cancel a
solicitation after the agency lost Starry’s protest at the Government
Accountability Office (“GAO”). Plaintiff now moves for an award of attorney
fees and other costs pursuant to the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412(d) (2012). That motion is fully briefed. Oral argument was held
on February 13, 2017. Because the government was not substantially justified
in its conduct throughout the procurement process, including this lawsuit,
Starry is entitled to an award of fees and costs. Further, the egregious nature
of the agency’s failures throughout the process and the time and resources
necessary to be spent by plaintiff vindicating its rights entitle it to an upward
adjustment of the statutorily-set hourly rate.
BACKGROUND2
The Department of Health and Human Services Program Support
Center (“PSC”) issued Request for Quotations No. 15-233-SOL-00023
(“RFQ” or “solicitation”) on November 13, 2014. The solicitation was sought
to procure a range of business operations services that would support PSC’s
implementation of HHS’s Unified Financial Management System (“UFMS”).
The RFQ sought personnel experienced with using UFMS and two other
independent software systems that the agency uses in coordination with
UFMS. Those are the Managing Accounting and Credit Card Systems
(“MACCS”), a system for accounting purchases made by government credit
card holders, and GovNet-NG, a reporting system used to distribute
operational reports. See Administrative Record (“AR”) 54-55. Both MACCS
and GovNet-NG are proprietary systems developed by Starry and are licensed
to HHS under separate agreements. AR 48.
Three companies submitted timely quotations. The RFQ promised
award to the company who was the lowest priced, technically acceptable
2
The factual background is set out in far greater detail in our earlier opinion
cited above.
2
offeror. The lowest price bidder was Intellizant, LLC (“Intellizant”). It alone
was thus evaluated for technical acceptability. The technical evaluation
involved a two step process. First, the Technical Evaluation Panel (“TEP”),
comprised of three individuals, separately evaluated and rated the offeror.
Second, the TEP met as a group and came to a consensus rating. The
consensus document was then sent to the final decision maker, the Source
Selection Authority (“SSA”), for her review and independent award decision.
Two of the three TEP members rated Intellizant as acceptable, but two
of them noted elements missing from Intellizant’s proposal. The TEP report
was forwarded to the SSA, who was also the Contracting Officer (“CO”). She
agreed that Intellizant was technically acceptable and awarded the contract on
December 18, 2014. The CO/SSA stated in her award decision memorandum
that the concerns noted in the TEP report could “easily be addressed at the time
of the award, and do not outweigh the strengths of the technical aspect of
Intellizant’s quote.”
On December 29, 2014, Starry filed a protest at the Government
Accountability Office (“GAO”), alleging that HHS’s evaluation of Intellizant,
was unreasonable because of Intellizant’s alleged inability to meet all of the
statement of work elements and lack of qualified key personnel. On January
6, 2015, HHS informed GAO and Starry that it intended to take corrective
action. GAO counsel inquired whether HHS intended to reevaluate proposals
or issue a new solicitation. The answer was “no.” The agency informed GAO
that the protest had revealed gaps in the record and that it intended only to fill
those gaps during corrective action. GAO accepted that explanation and
dismissed Starry’s first protest as academic. Plaintiff then sent a pre-filing
notice to the Clerk of Court of this court, stating its intent to file a bid protest
here. After advice of counsel, the CO informed offerors that the agency now
intended to reevaluate proposals and make a new award if necessary. Relying
on that representation, Starry withdrew its notice of intent to protest at this
court.
HHS’s second evaluation lasted from January 16, 2015 to April 29,
2015. Contrary to the agency’s promise to perform a new evaluation, the CO
instructed the TEP to provide more support for its original evaluation. Two out
of the three members of TEP again rated Intellizant as acceptable, while the
lone dissenter, Mr. John Thompson, repeated his concerns and found
Intellizant technically unacceptable. The second final award decision changed
little. The CO/SSA again rated Intellizant as technically acceptable. She thus
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re-awarded the contract to Intellizant. She did not pursue the two TEP
member’s earlier concerns regarding missing information, nor was she
concerned by the staffing deficiencies noted by Mr. Thompson in the second
evaluation attempt.
On May 5, 2015, Starry filed a second protest at GAO, again
challenging the award to Intellizant on the basis that Intellizant lacked
experienced and qualified key personnel. Starry also alleged that Mr. Davis,
the director of accounting services at the PSC, was biased in favor of
Intellizant, having been a former Intellizant employee. Starry complained that
Mr. Davis had influence over the composition of the TEP, prompting inclusion
of members that were in favor of Intellizant. One of the TEP members, Karen
Slater, remained on the panel even though her impartiality was questioned,
having been involved in the past performance rating of an unrelated Intellizant
contract. Deposition testimony revealed that her technical evaluation was
based almost entirely on her previous experience with Intellizant and not on
the merits of Intellizant’s proposal at issue.
On July 15, 2015, GAO held a hearing and took testimony from the CO.
On August 11, 2015, GAO sustained the protest in part and denied it in part.
GAO found that HHS failed to evaluate Intellizant properly under the
solicitation’s PWS and key personnel criteria, but it decided that the
allegations of bias were “without merit” based on Mr. Davis’s representation
to GAO that he had “recused” himself from the procurement process. AR
1130. GAO recommended a reevaluation of Intellizant’s proposal in
accordance with RFQ’s criteria and, if the agency found Intellizant’s proposal
to be lacking, to terminate the award and evaluate the next-in-line offeror
(Starry). AR 1130-31.
The record, however, contains no indication that anyone at HHS
seriously considered following GAO’s recommendation. Shortly following the
GAO decision, agency counsel wrote an email to contracting personnel
informing them that GAO’s decision was not mandatory and that the agency
could cancel the solicitation and procure the services through a new
procurement or amend the current RFP. That message was circulated among
relevant agency personnel, including the head of PSC, John Davis. It was left
to Mr. Davis to decide what to do going forward. He emailed the head of the
contracting department at PSC, Mr. Patrick Joy, on September 2, 2015,
announcing his decision to cancel the solicitation. This came as no surprise to
Mr. Joy, because he had been told earlier by Mr. Davis that the current RFQ
4
solicited unneeded services. Mr. Davis’ email stated that he had instructed his
staff to review the UFMS support contracts, which brought to his attention an
alleged overlap between the license agreements for the MACCS and GovNet
systems and the support services provided under the UFMS main contract.
A declaration submitted to GAO by Mr. Davis stated that his decision
to cancel the RFQ was prompted by a request from the Contracting Officer’s
Representative (“COR”) for the MACCS and GovNet-NG renewals, which
came due in May and September 2015, respectively. This prompted him to
review the support services procured under those license agreements and to
conclude that they were duplicative of the main UFMS support contract. Thus
the best course, per Mr. Davis, was to cancel the current solicitation and to
issue a new RFQ with a more narrowly tailored PWS.
On September 8, 2015, counsel for HHS informed GAO and Starry that
it intended to cancel the solicitation rather than reevaluate the proposals. This
prompted Starry to file its third protest at GAO on September 15, 2015, which
challenged HHS’s decision to cancel the solicitation as the product of bias by
Mr. Davis. GAO, however, found that Mr. Davis’ explanation was reasonable
and denied the protest without considering whether it was the product of bias.
AR 1245.
On January 11, 2016, Starry filed suit here. Shortly thereafter, plaintiff
filed a motion to supplement the record with deposition testimony. Finding
credible allegations of bias and that depositions were necessary for effective
judicial review, we granted that motion and allowed plaintiff to take four
depositions. 125 Fed. Cl. 613 (2016). After the record was supplemented and
the parties filed cross-motions for judgment on the administrative record, we
granted Starry’s request for permanent injunctive relief and enjoined HHS
from canceling the solicitation. 127 Fed. Cl. at 551. Ultimately, it was
unnecessary to reach the question of bias. It was plain from the record that the
agency’s entire procurement process was deeply flawed, culminating in a
completely unsupported decision to cancel the solicitation. Id. at 548.
Starry timely filed an application for attorney fees and other eligible
expenses under EAJA on October 13, 2016. Defendant opposes the motion,
asserting that the United States’s position was substantially justified.
Defendant also asserts that, even if plaintiff is eligible for an award under
EAJA, that maximum rate that it could recover for attorney fees is limited to
a cost of living-adjusted rate of just over $192 per hour.
5
DISCUSSION
EAJA permits a prevailing party other than the United States to recover
fees so long as it meets the statutory requirements: 1) the claimant must be a
prevailing party, 2) an application must be timely filed with adequate
supporting documentation, 3) the claimant must satisfy the statutory size
limits, 4) the fees being sought were expended in civil litigation, 5) the
government’s position was not substantially justified, and 6) no special
circumstances make the award unjust. 28 U.S.C. § 2412(d)(1)(A), (B). The act
also limits attorney fees “in excess of $125 per hour unless the court
determines an increase in the cost of living or special factor, such as the
limited availability of qualified attorneys for the proceedings involved,
justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A)(ii). Only the government’s
justification and the hourly rate of Starry’s claimed fees are at issue here.
Plaintiff asserts that its fees should be adjusted upwards to its actual billing
rate or, in the alternative, at least adjusted to account for the higher cost of
living in the metro Washington, DC, area.
I. Substantial Justification
We begin with the issue of whether defendant was substantially
justified. The government bears the burden of proving that its conduct was
substantially justified. Doty v. United States, 71 F.3d 384, 385 (Fed. Cir.
1995). The standard is one of reasonableness. That is to say that the
government must have had a “reasonable basis both in law and fact” for its
position, such that a reasonable person would be satisfied. Renee v. Duncan,
686 F.3d 1002, 1017 (9th Cir. 2012). The “position of the United States”
means, in addition to the position taken in the civil action, the action or failure
to act by the agency upon which the civil action is based. 28 U.S.C. §
2412(d)(2)(A). The Supreme Court has stated that, when a case involves
multiple stages, the court should look “at the entirety of the government’s
conduct.” Comm’r, I.N.S. v. Jean, 496 U.S. 154, 159 (1990). The court will
assess the government’s action as a whole, encompassing both the agency’s
pre-litigation conduct and the government’s subsequent litigation position. Id.
Defendant contends that the Department of Justice was substantially
justified because it reasonably relied on the agency’s representations that there
were redundancies inherent in the solicitation and the existing software license
agreements. Defendant also argues that it acted reasonably in reliance on the
6
GAO decision to deny plaintiff’s third protest. Defendant makes much of our
holding that we did not need to reach the question of bias, arguing that this
allegation was the real thrust of plaintiff’s protest.
We find defendant’s reliance on HHS’s earlier representations that there
were redundancies between the solicitation and the license agreements to be
unreasonable. As we explained in our opinion on the merits, there is no
evidence in the record that the agency undertook any serious review of the
services provided under those three contract vehicles. Mr. Davis testified that
he did not read the license agreements nor perform any real comparison of the
agreements to the UFMS support contract. See Starry, 127 Fed. Cl. at 550.
There is no basis in fact to support such a position. Defense counsel was not
simply at the mercy of the agency with regard to its understanding of the
evidence. It had the Administrative Record as initially composed and also the
benefit of the deposition transcripts after the record was supplemented. At no
point, but especially not after the depositions, did the record support the
agency’s representation that it had evaluated the three contracts for
redundancies. The government’s position was not substantially justified at any
point during this procurement process, including its defense in court.
Likewise, defendant’s reliance on GAO’s decision in the third protest
is unavailing. Although GAO accepted the agency’s explanation of the
cancellation, it did not examine the underlying evidence. It equated the
plausibility of Mr. Davis’ explanation with its accuracy, assuming his
statements had an underlying basis in fact. As we explained in our earlier
opinion, however, that explanation was illusory and completely contrived. The
decision to cancel was therefore arbitrary and capricious. The record as further
developed in this protest ought to have thoroughly disabused defense counsel
of any notion of rationality.
Lastly, although defendant is correct that we did not reach the issue of
bias on the merits of plaintiff’s protest, that provides no justification for either
the agency’s conduct or the government’s defense in court. Plaintiff challenged
not only the fundamental fairness of the procurement (bias) but also the
rationality of the evaluations and subsequent decision to cancel. Plaintiff’s
challenge to the first two evaluations was sustained by GAO in the second
protest, and we also found that basis to be well supported by the record. As we
stated, the record “contains a lengthy history of agency personnel being
indifferent to the fidelity of the procurement process.” 127 Fed. Cl. at 549. The
problems began well before Mr. Davis’ decision to withdraw the solicitation
7
and continued until the court issued an injunction. At no point was the
government’s position reasonably justified based on the law or the facts.
Plaintiff is therefore entitled to recover fees and costs under EAJA. We turn
then to the quantum of that award.
II. Special Factor
EAJA currently provides for the recovery of attorney fees at up to $125
per hour. The act, however, provides two exceptions for exceeding the $125
hourly rate: a cost of living adjustments (“COLA”) or any other “special
factor” that the court finds justifies a higher amount. 28 U.S.C. §
2412(d)(2)(A)(ii). EAJA does not define what constitutes a special factor but
does provide one example: “the limited availability of qualified attorneys for
the proceedings involved, justifies a higher fee.” Id. The use of the term “such
as” before the example indicates that limited availability of qualified counsel
is not the only “special factor” that can arise. The Supreme Court declined to
delineate specifically what constitutes a special factor but did limit the
applicability of a special factor adjustment to those circumstances that are not
applicable to a broad spectrum of litigation. Pierce v. Underwood, 487 U.S.
552, 573 (1988). It is otherwise left to the courts to determine what constitutes
a special factor on a case by case basis. Cf. Chui v. United States, 948 F.2d
711, 713 (Fed. Cir. 1991) (stating that whether to award fees under EAJA and
how much are discretionary).
It is plaintiff’s burden to establish its entitlement to a special factor
adjustment. Carmichael v. United States, 70 Fed. Cl. 81, 84 (2006). Here,
plaintiff asserts that “the highly unusual conduct of the agency” and “‘lack of
fidelity to the procurement process’” should constitute a special factor
justifying a higher fee award. Pl.’s Reply at 17 (quoting Starry, 127 Fed. Cl.
at 549). Plaintiff details, much as the court did in our opinion of July 2016, the
tortured and lengthy history of Starry’s attempts to hold HHS accountable to
the standards and processes it was promised in the solicitation. In the
alternative, plaintiff asks for a COLA.
Defendant does not contest the application of a COLA as measured by
the Department of Labor’s Consumer Price Index (“CPI”), which would bring
the adjusted hourly rate to $192.09. But, defendant does dispute the finding of
a special factor justifying any higher rate. Defendant argues that the Supreme
Court in Pierce has narrowed the scope of potential special factors to those
relating to the “distinctive knowledge or specialized skill” of plaintiff’s
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attorneys. Pierce, 487 U.S. at 572. Defendant argues that the nature of the
case, i.e., in this instance, the egregious agency conduct, is relevant only so far
as the proceedings can be handled capably by a very limited number of
attorneys.
Defendant is plainly wrong in this reading of the statute. If Congress
had intended to limit full recovery by a successful litigant only to situations in
which qualified attorneys are scarce, it would not have characterized that
circumstance as merely an example. Further, Pierce lends little support to the
government’s argument that the nature of the case and the agency’s actions
cannot support a finding of a special factor for EAJA purposes. The Supreme
Court narrowly interpreted the meaning of the one special factor listed as an
example in the statute, the“limited availability of qualified attorneys,” to refer
to attorneys in very specialized areas of law and not attorneys that are highly
capable in litigation generally. Pierce, 487 U.S. at 572. In other words, the
Supreme Court determined that a special factor should not be applicable“to a
broad spectrum of litigation.” Id. at 573. The Court declined to specify what
other special factors might be, but found that nothing that the district court in
that case relied on in its upward adjustment of EAJA fees constituted such a
special factor. Id.
In short, while defendant is correct that plaintiff is unable to point to
any reported prior award under similar circumstances, we do not treat that as
the end of the inquiry. Unless we are to turn the special factor exception into
a snipe hunt, we can assume that Congress did, in fact, contemplate that, under
other special circumstances, more than the statutory minimum can be awarded.
Our conclusion that the particular circumstances of this case justify an
award of attorneys fees at the actual amounts billed begins with two
observations. First, what the agency did here constitutes an egregious example
of intransigence and deception, not just with regard to the bidder, but to the
GAO and to the court. It is fortunate, but relevant, that this was anomalous
conduct. Second, our bid protest jurisdiction is intended as a high level review
of agency conduct under relevant federal procurement statutes and regulations,
such as the Competition in Contracting Act and the Federal Acquisition
Regulation, which leave a great deal to agency discretion. The bedrock of
those legal criteria, however, is that procurements are to be conducted fairly
and transparently. The government would find its operations considerably
more difficult if vendors could not routinely assume they were being treated
in a straight forward fashion. Disappointed offerors inevitably complain about
9
what amount to good faith disagreements with agency evaluators. They should
not have to worry that government employees do not take their duties
seriously. Plaintiff has been forced to file three bid protests at GAO and one
lawsuit at the court in a more than two-year effort to ensure that HHS kept its
promises and fairly conducted this procurement.
Starry filed its first protest at GAO in December 2014. This quickly
prompted a promise of corrective action taken to fill in gaps in the record, a
half measure. After threat of suit at the Court of Federal Claims, HHS
promised to conduct a more thorough correction and to reevaluate proposals.
Starry withdrew its protest, taking the agency’s representation at face value.
This was the agency’s first misrepresentation. As the depositions of agency
employees made clear, HHS did not conduct a meaningful reevaluation but
instead undertook an attempt to pad the record to better support award to
Intellizant. Further, the record at court revealed that legal errors were made
during the reevaluation concerning advice given to TEP members after
inquiries to the CO. See 127 Fed. Cl. at 545.
This led to Starry’s second protest at GAO, filed on May 5, 2015. GAO
sustained this protest, deciding that HHS failed to evaluate Intellizant properly
under the solicitation’s requirements. This protest process was not without
agency misconduct, however. It misled GAO by submitting a statement by Mr.
Davis that he had “recused” himself from the procurement. Thus GAO did not
find any merit to Starry’s allegations of bias. As we laid out in our two prior
opinions, that representation was untruthful. Mr. Davis was involved in
picking the TEP members, personally selecting at least one of the members;
he was consulted by one member of the TEP during the process, Ms. Karen
Slater; and then later he made the decision to cancel the solicitation rather than
deal with the consequences of losing the protest at GAO, providing an illusory
basis for that decision.
The fact that the agency left the decision of what to do with the
procurement to Mr. Davis after it has just represented to GAO that he was
uninvolved is a further reflection of its lack of commitment to the integrity of
the process. Other agency personnel simply accepted Mr. Davis’ explanation
that the solicitation should be canceled, and no one undertook any effort to
find out whether the basis he offered for cancellation was accurate.
Thus, Starry was again forced to file a protest at GAO, which again
prompted misrepresentations by the agency. HHS proffered to GAO the
10
rationale given by Mr. Davis–redundancies in the services solicited–and GAO
accepted that information without further investigation and denied the protest.
Knowing the illegitimacy of the rationale given, plaintiff was left with no
recourse but to file suit here. We need not detail again the history of the suit
at this court.
The extreme measures that plaintiff was forced to pursue to vindicate
its right to a rational and lawful federal procurement process, combined with
the shocking disregard of the truth by the agency, justify an award at higher
than the default rate.3 Both Starry and GAO were misled on multiple
occasions. Although we did not explicitly reach the question of bias, the record
is replete with examples of agency misconduct.
Fortunately, our holding in this regard is not applicable across a broad
spectrum of litigation, nor would it entitle every successful protestor to an
EAJA special factor award. The circumstances of this case are particular and
unique. The bid protest process, both at GAO and the court, is in most regards
an exception to the norms of civil litigation. The scope of review is normally
limited to the administrative record and discovery is not usually allowed. The
standard of review is highly deferential. The result of all of which is that bid
protests are narrowly tailored to achieve a relatively focused scope of inquiry
and an expedited consideration by the two fora that hear them. When, as here,
however, the agency’s conduct necessitates that an offeror file four protests in
in over two years, in two fora, winning two of them and prompting one
corrective action, and when the agency’s defense of its conduct is highly
irregular (misrepresentations and illusory promises), the circumstances of the
case are anything but ordinary. We find that a special factor justifies award at
a higher rate in this case.
CONCLUSION
Plaintiff is entitled to an award of fees and costs under EAJA. Because
of the unique circumstances of this case, plaintiff is entitled to a special factor
adjustment of the fees recovered at the rates actually billed to Starry by its
3
We note that nothing represented or implied by defense counsel during this
suit was intended to be untruthful. We assume that, like plaintiff and GAO
before them, counsel took agency representations at face value. As held above,
however, that cannot excuse the fact that doing so was not reasonable.
11
counsel. Accordingly, the parties are directed to consult and jointly propose an
amount for judgment in a status report to be filed on or before April 7, 2017.
s/ Eric G. Bruggink
ERIC G. BRUGGINK
Senior Judge
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