Favor Techconsulting, LLC v. United States
132 Fed. Cl. 292
| Fed. Cl. | 2017Background
- DIA issued a solicitation for three BPAs; Favor TechConsulting (FTC) submitted a quote and received an "Unsuccessful Offeror Notification" dated September 27, 2016.
- FTC filed a GAO protest on October 7, 2016 and separately sued in the Court of Federal Claims on October 19, 2016 seeking an order to trigger the CICA automatic stay; DIA argued the award date was September 26, 2016 so FTC missed the 10‑day window for the stay.
- The Court issued a temporary restraining order and then, on November 3, 2016, ruled the DIA’s refusal to implement the CICA automatic stay was arbitrary and unlawful and ordered the stay instituted.
- DIA then filed corrective action at the GAO and the GAO dismissed FTC’s protest as moot; FTC subsequently moved under EAJA for attorney fees and expenses.
- The central factual dispute concerned whether the contract award date was September 26 or September 27, 2016 (contract cover pages and notice showed Sept. 27; agency declarations asserted internal records reflected Sept. 26).
- The Court found FTC to be a prevailing party under EAJA, held the Government’s position was not substantially justified, and awarded EAJA fees with a locality-based COLA and paralegal and filing‑fee recovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FTC is a "prevailing party" under EAJA | Court order granted the precise relief sought (implementation of CICA stay) before agency corrective action | DIA argued corrective action could bar prevailing‑party status (citing Buckhannon/Dellew principles) | Held: FTC is prevailing — court issued ruling granting requested relief before agency corrective action |
| Whether Government's position was "substantially justified" | DIA’s refusal to institute stay was arbitrary; award date visible on notice/contract was Sept. 27, so FTC timely filed | Government argued award was Sept. 26 based on internal records and thus its position was reasonable and novel | Held: Government not substantially justified — lack of authority to ignore contract/notice date; position unreasonable on record |
| Recoverable fee rates and COLA methodology | FTC sought local CPI‑based COLA (mean of relevant bimonthly CPIs) to increase $125 cap | Government proposed different CPI methodology (median or national CPI) and challenged some rate bases | Held: Awarded upward adjustment using local (Washington, D.C.) CPI average (resulting in $197.29/hr) based on fee timing and Parrott precedent |
| Reasonableness of claimed hours/fees (including paralegal and supplemental fees) | FTC sought 145.4 attorney hours (including supplemental EAJA work), 13 paralegal hours, and filing fee; defended research on parol evidence and CICA override | Government sought reductions for time on allegedly irrelevant issues and some post‑decision entries | Held: Court allowed full claimed attorney hours except a 2.4‑hour deduction for unrelated settlement/corrective‑action work; allowed paralegal hours at $122/hr and $400 filing fee; total $30,198.47 |
Key Cases Cited
- Comm’r, INS v. Jean, 496 U.S. 154 (1990) (EAJA elements and fee application timing)
- Pierce v. Underwood, 487 U.S. 552 (1988) (definition of "substantially justified")
- Scarborough v. Principi, 541 U.S. 401 (2004) (government bears burden to show substantial justification)
- Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571 (2008) (paralegal fees recoverable at prevailing market rates)
- Wagner v. Shinseki, 640 F.3d 1255 (Fed. Cir. 2011) (supplemental EAJA fees for defending fee application)
- Dellew Corp. v. United States, 855 F.3d 1376 (Fed. Cir. 2017) (voluntary agency corrective action and prevailing‑party status under EAJA)
- Parrott v. Shulkin, 851 F.3d 1242 (Fed. Cir. 2017) (use of local CPI for EAJA COLA adjustments)
- Doty v. United States, 71 F.3d 384 (Fed. Cir. 1995) (government burden to justify position when it loses)