In a recent ruling, the Federal Circuit in Dellew Corporation v. United States reversed a legal fees award to a contractor because the agency had taken corrective action on the bid protest before it was decided in court on the merits.
In initially awarding the fees and costs, the Court of Federal Claims found that comments it made during the hearing and prior to the Government taking corrective action materially altered the position of the parties so that the contractor qualified as a “prevailing party” under the Equal Access to Justice Act (EAJA), a requirement under the statute for the Court to award fees and costs. Specifically, the Court of Federal Claims focused on certain comments it made during the parties’ oral arguments. The Court stated that it provided “hints” about its views favorable to the contractor on the merits and told the parties that it had drafted an opinion. The Court of Federal Claims also repeatedly expressed its belief that corrective action would be appropriate.
As a result, the Government agreed to take corrective action and the bid protest was dismissed as moot. The contractor subsequently sought attorney fees and costs under the EAJA. In awarding nearly $80,000 in fees and costs, the Court of Federal Claims held that it, in making substantive comments during the oral argument regarding the merits of the case, the Court materially altered the relationship between the parties such that the contractor qualified as a prevailing party under the EAJA.
However, in reversing the fee award, the Federal Circuit held that the contractor was not a prevailing party as required by the EAJA because the Government voluntarily took the corrective action and the Court’s comments about the merits of the case made during the hearing did not constitute sufficient grounds to convey prevailing party status. Therefore, the Federal Circuit reversed the fee award of nearly $80,000.
About the Author:
Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow.
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