Most GAO and US Court of Federal Claims protest decisions are pretty dry and not very interesting to read. But every once in a while, they get pretty colorful in their opinions.
Starry Associates, Inc. v. The United States and Intellizant, LLC, No. 16-44C (2017) is a pretty standard case about recovering legal fees. The question was whether Starry Associates, Inc., which had won a prior protest, Starry Associates Inc. v. United States, 127 Fed. Cl. 539 (2016), should recover its fees. In preparing their opinion, the Court criticized the Department of Health and Human Services (HHS) for their “egregious” conduct during both the source selection and bid protest process.
The HHS’s conduct in evaluating proposals and defending itself in four subsequent bid protests was an “egregious example of intransigence and deception,” according to the Court of Federal Claims.
There were plenty of issues starting with the RFQ in 2014 that continued throughout multiple protests. Finally, after two years of fighting, in July 2016, the Court issued a decision sustaining Starry’s protest.
After winning at the Court, Starry sought attorneys’ fees under the Equal Access to Justice Act. EAJA normally allows recovery of attorneys’ fees at no more than $125 an hour. There are some exceptions if there is a “special factor” that the court finds justifies a higher amount.
In determining how much Starry should recover in attorney fees, the judge started his review with: “[w]hat 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.”
The Court continued:
The extreme measures that [Starry] 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. Both Starry and the GAO were misled on multiple occasions. Although we do not reach the question of bias, the record is replete with examples of agency misconduct.
The judge found that Starry was entitled to recover attorneys’ fees and costs under EAJA, and that a “special factor” adjustment was appropriate, allowing Starry to recover for the rates actually billed by its attorneys.
So the moral of the story is to keep fighting even if you don’t win the first protest. You might gain more than you expect.