Hyperion, Inc. v. United States
120 Fed. Cl. 504
Fed. Cl.2015Background
- Army issued a small-business set-aside solicitation for fiber-optic installation in Jordan; Hyperion and Technical Communications (TC) were offerors.
- Court in Hyperion I (115 Fed. Cl. 541) set aside the Army’s initial award to TC for prejudicial errors in evaluating offerors under the solicitation.
- After judgment became final, Jordan submitted a Letter of Request directing a sole-source award to TC; DSCA/SAMM procedures were used and a memorandum and notice effectuated a sole-source award.
- Hyperion filed a new post-award protest seeking bid-preparation and proposal costs (~$402,583) and alleging the renewed procurement was a sham and preordained for TC.
- Government moved to dismiss (or for summary judgment), arguing claim preclusion and that the International Agreement exception (FMS/SAMM authority) permitted the sole-source award.
- Court found jurisdiction, converted briefing to judgment on the administrative record, rejected claim preclusion (new transactional facts), and denied relief because Jordan’s sole-source direction complied with the International Agreement exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to hear post-award protest of the second award | Hyperion: Tucker Act covers agency corrective actions and subsequent procurement decisions | United States: did not meaningfully contest; urged procedural defenses | Court: jurisdiction exists under 28 U.S.C. § 1491 for post-award/procurement corrective-action claims |
| Whether complaint is barred by claim preclusion (res judicata) | Hyperion: new post-judgment events (cancellation + Jordan’s sole-source request) create new transactional facts | United States: prior judgment on merits precludes relitigation; Hyperion should have sought relief under RCFC 60(b) | Court: claim preclusion does not bar this suit because subsequent events changed transactional facts |
| Proper procedural vehicle for deciding the motion | Hyperion: relied on record materials; opposing conversion | United States: relied on extra-pleading administrative materials | Court: converted motion to judgment on the administrative record under RCFC 52.1 |
| Entitlement to bid-preparation costs given sole-source award | Hyperion: renewed procurement was a sham; Army predetermined award to TC, causing prejudicial error and recoverable costs | United States: after Hyperion I, Jordan (a sovereign FMS purchaser) properly directed a sole-source award under the SAMM/International Agreement exception; no agency prejudicial error post-judgment | Court: denied costs—Army lawfully followed FMS/SAMM procedures; International Agreement exception applied, so no prejudicial error in post-judgment sole-source award |
Key Cases Cited
- Hyperion, Inc. v. United States, 115 F. Supp. 3d 541 (Ct. Cl. 2014) (prior decision setting aside original award)
- Systems Application & Technologies, Inc. v. United States, 691 F.3d 1374 (Fed. Cir. 2012) (bid-protest jurisdiction when agency takes corrective action)
- E.W. Bliss Co. v. United States, 77 F.3d 445 (Fed. Cir. 1996) (standards for recovering proposal-preparation costs)
- Jet, Inc. v. Sewage Aeration Systems, 223 F.3d 1360 (Fed. Cir. 2000) (elements of claim preclusion)
- Insight Systems Corp. v. United States, 115 F. Supp. 3d 734 (Ct. Cl. 2014) (post-judgment events can create new claims for bid costs)
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir. 2005) (court must make factual findings from the administrative record)
- L-3 Communications Corp. v. United States, 99 Fed. Cl. 283 (Ct. Cl. 2011) (interpretation of FAR/10 U.S.C. exceptions permitting FMS-directed procurements)