Request for fees under the Equal Access to Justice Act is denied. A protester is only entitled to fees under the EAJA if the government’s legal position was not substantially justified. Here, however, the court found that the caselaw governing the issue in dispute was unsettled and conflicting. Reasonable minds could differ on the viability of the government’s position in the protest. Fees under the EAJA therefore were not warranted.
The Green Technology Group filed a protest with the Court of Federal Claims challenging the award of an IT services contract made by the Defense Health Agency. Green objected the agency’s technical, past performance, and price evaluations.
The court found that the agency had reasonably evaluated offerors’ technical approach and past performance. But the court found that the agency’s price evaluation unreasonable. Specifically, the agency had failed to consider the risks associated with the awardee’s unbalanced pricing in making the award decision. After prevailing on this single protest ground, Green moved for an award of attorney’s fees under the Equal Access to Justice Act.
The court noted that eligibility for a few award under the EAJA requires: (1) that the claimant is the prevailing party, (2) that the government’s position was not substantially justified, (3) no special circumstances make a fee award unjust, and (4) the fee application is submitted within 30 days and is supported by an itemized statement.
The court opined that were it to find a fee award appropriate under the EAJA, Green was only entitled to a partial award. Green had only prevailed on one of its four protest grounds. What’s more, that ground, which concerned unbalanced pricing, did not share a common core of facts or legal theories with the losing claims. Thus, Green was only entitled one-quarter of its requested fees.
But the court ultimately determined that Green could not establish the “substantially justified” prong of the EAJA elements. In assessing whether a legal argument is substantially justified, the court considers the clarity of the governing law and whether judicial decisions on the issue have left the law unsettled. A position is substantially justified if there is a dispute over which reasonable minds could differ.
Here, the court found, the legal issue was novel and difficult. The issue was whether the agency had sufficiently analyzed the awardee’s unbalanced pricing when the agency did not consider non-price risks posed by the unbalanced prices. The court found the caselaw on this issued unsettled and conflicting. In fact, a leading academic in the field had noted the lack of clarity on this issue. The agency’s position was substantially justified.
Green is represented by Todd R. Overman, Richard W. Arnholt, and Sylvia Yi of Bass, Berry & Sims PLC. The government is represented by Robert R. Kiepura of the U.S. Department of Justice and Kevin E. Bolin on the Defense Health Agency.