Friday, August 17, 2012


Judge George Miller of the Court of Federal Claims (COFC) recently determined that the government "failed to conduct proper best-value analyses."  He pointed out that a "tradeoff process" is proper when it may be in the best interest of the government to "consider award to other than the lowest priced offeror or other than the highest technically rated offeror."  When conducting this analysis, the source selection authority (SSA) is required to comparatively assess the proposals and sufficiently document the rationale for any business judgments and tradeoffs made.  

Judge Miller concluded the contracting officer failed to meet the documentation requirements in that the SSA decision was conclusory and generalized.  The government's position was that explanatory documentation was required only when a higher priced proposal was selected over a lower priced offer.  Judge Miller was unimpressed.  He said the government had violated FAR 15.308 and granted relief.

The contractor, a small business, then went for recovery of attorney fees under the Equal Access to Justice Act (EAJA).  EAJA is a fee shifting statute that provides eligible parties the ability to recover fees and expenses provided 1) the plaintiff was the prevailing party; 2) the government's position was not "substantially justified"; 3) there exist no special circumstances that would make the award unjust; and 4) the application is timely filed.

Judge Miller denied the contractor's application saying the government's position was substantially justified.  Apparently recognizing that this test varies depending on the view of the beholder, Judge Miller was impressed that the agency's actions, although clearly wrong, were nevertheless reasonable with regard to its interpretation of FAR 15.308.  Thus, it was reasonable for the government to fight in the litigation.  Therefore, no fees to the small business.

The only solution to small businesses is amendment of EAJA as we have recommended before.  The substantially justified test must be changed to allow small business to recover their fees when they win.   

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