A Squared Joint Venture v. United States ( 2020 )

In the United States Court of Federal Claims
No. 17-835C
(Filed: July 1, 2020)
)
A SQUARED JOINT VENTURE, ) Bid Preparation and Proposal Costs;
) Causation; Equal Access to Justice
Plaintiff, ) Act; Prevailing Party
)
v. )
)
THE UNITED STATES, )
)
Defendant. )
)
Joseph P. Dirik, Dallas, TX, for plaintiff.
Borislav Kushnir, Civil Division, United States Department of Justice, Washington, D.C.,
with whom were Joseph H. Hunt, Assistant Attorney General, Robert E. Kirschman, Jr.,
Director, Douglas K. Mickle, Assistant Director, for defendant. Jerry L. Seemann,
National Aeronautics & Space Administration, Office of Chief Counsel, Washington,
D.C., of counsel.
OPINION
FIRESTONE, Senior Judge.
Pending before the court in this bid protest case is plaintiff A Squared Joint
Venture’s (A2JV) motion for bid preparation and proposal costs under the Tucker Act,
28 U.S.C. § 1491, and for attorney’s fees, expenses, and costs under the Equal Access to
Justice Act (EAJA), 28 U.S.C. § 2412. This case has had a long and complex history
ultimately resulting in this court upholding the National Aeronautics and Space
Administration’s (NASA) decision to cancel the procurement that forms the backdrop of
this motion. See A Squared Joint Venture v. United States, 145 Fed. Cl. 676, 678 (2019).
As discussed below, the court finds that A2JV is not entitled to the bid preparation and
proposal costs it incurred in connection with the cancelled procurement because A2JV
has failed to show that NASA’s legal error caused it to unnecessarily incur those costs.
In addition, because the court finds that A2JV is not a prevailing party for purposes of
EAJA, the court finds that A2JV is not entitled to attorney’s fees. For these reasons,
A2JV’s motion is DENIED.
I. BACKGROUND
The dispute that led to this bid protest stems from NASA’s May 1, 2011 award of
a contract for acquisition and business support services at the Marshall Space Flight
Center (ABSS1 Contract) to Al-Razaq Computing Services (Al-Razaq). See A Squared
Joint Venture v. United States, 136 Fed. Cl. 321, 325 (2018) (A2JV I). Near the
conclusion of the ABSS1 Contract, NASA, on February 16, 2016, issued a request for
proposals for a follow-on acquisition and business support services contract (ABSS2
RFP), which NASA planned as a set-aside for women owned small businesses. Id. Al-
Razaq and another company, Adventus Technologies, Inc., created A2JV to submit a
proposal in response to the ABSS2 RFP. Id. A2JV submitted a timely proposal on
March 18, 2016. Id. at 326.
On May 9, 2016, NASA “disqualified [A2JV’s proposal] because of a significant
potential [organizational conflict of interest (OCI)] that tainted the integrity of the ABSS2
competition.” Id. NASA disqualified A2JV’s proposal because: (1) Al-Razaq employees
who worked on A2JV’s proposal “had access to commercial and financial information
that was confidential and contained information that could have given A2JV an unfair
2
competitive advantage,” and (2) Al-Razaq failed to comply with “a contractual
requirement in the ABSS1 [C]ontract to screen future work for OCI and disclose any
identified or potential OCI to NASA.” Id. at 326-27.
On June 20, 2017, A2JV challenged in this court NASA’s disqualification
decision. See Compl., ECF No. 1. The court initially upheld NASA’s OCI
disqualification decision, concluding based on the record provided that Al-Razaq’s
program managers had access to sensitive information in files maintained by Al-Razaq,
which included information relevant to an A2JV competitor. A2JV I, 136 Fed. Cl. at 330-
31. When the court learned from briefing on A2JV’s motion for reconsideration that Al-
Razaq managers did not have the right to access any of the files with sensitive
information regarding potential A2JV competitors, the court granted reconsideration. A
Squared Joint Venture v. United States, No. 17-835C, 2018 WL 2016632, at *1 (Fed. Cl.
May 1, 2018) (A2JV II). The court remanded the OCI issue back to NASA “to ensure
there are ‘hard facts’ to support the [contracting officer’s] disqualification of A2JV” on
OCI grounds. Id.On remand, NASA’s contracting officer conducted “an independent review of the
ABSS1 [C]ontract files” and concluded that Al-Razaq employees, while not authorized to
examine certain files, “could by virtue of location access hard copies of contract files co-
located with NASA employees overseeing contracts of potential A2JV competitors.”
Nov. 29, 2018 Order at 3-4, ECF No. 104. The court found that this explanation was “not
sufficient to support NASA’s decision to disqualify A2JV from the competition.” Id. at
4. The court held that Al-Razaq’s mere ability to access confidential, competition-
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sensitive information based on location did not establish the “hard facts” necessary for a
finding of significant potential OCI. See id. at 8-10.
The government moved for reconsideration, arguing, inter alia, that the “hard
facts” standard did not apply to an agency’s OCI determination and that the court
improperly held that the mere appearance of impropriety was insufficient to find
significant potential OCI. See Def.’s Mot. for Recons., ECF No. 106. The court denied
in relevant part the government’s motion. Dec. 21, 2018 Order, ECF No. 113. The court
then instructed the parties to brief the propriety and scope of injunctive relief. Id. at 12.
The parties did not, however, have an opportunity to submit any briefing on
injunctive relief. On March 12, 2019, NASA formally decided to cancel the ABSS2
solicitation in favor of a longstanding centralized procurement strategy. A Squared Joint
Venture v. United States, 145 Fed. Cl. 676, 679 (2019) (A2JV III). A2JV challenged the
cancellation decision in an amended complaint. Id. at 680. After briefing, the court
upheld NASA’s cancellation decision. See id. at 681-84. The court also rejected A2JV’s
claim that NASA cancelled the ABSS2 procurement to avoid an adverse decision in this
case, finding instead that “a number of events other than this litigation, including
unrelated GAO protests and a partial government shutdown, created a need to review the
ABSS2 procurement.” Id. at 684.
Thereafter, the court denied A2JV’s motion to reconsider the court’s opinion
upholding the cancellation decision. See A Squared Joint Venture v. United States, 146
Fed. Cl. 705, 713 (2020) (A2JV IV). The court, however, held that the case should not be
closed, and that “A2JV be permitted to pursue bid preparation costs based on [NASA’s
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earlier] disqualification decision.” Id. at 712. This was because the court, before
determining whether the cancellation decision was proper, had held that the cancellation
decision had not mooted A2JV’s claims for declaratory relief based on the
disqualification decision. Specifically, the court held that A2JV “still ha[d] a claim for
bid preparation costs” based on the disqualification decision, and that the effect of the
cancellation decision on the declaratory claims was still uncertain at that stage of the
case. See A Squared Joint Venture v. United States, No. 17-835C, 2019 WL 2591205, at
*3 (Fed. Cl. June 24, 2019). The court stated that any relief that should be issued with
regard to the disqualification decision would be dealt with after the court determined
whether the cancellation decision was justified. See A2JV IV, 146 Fed. Cl. at 712.
Accordingly, A2JV filed the pending motion for bid preparation and proposal
costs, as well as for attorney’s fees, expenses, and costs under EAJA,1 on March 2, 2020.
Pl.’s Mot. at 1, ECF No. 175. A2JV argues that it is entitled to bid preparation and
proposal costs and attorney’s fees because it obtained “some of the relief it sought in this
matter that materially altered the legal relationship between the parties,” in light of the
court’s declaratory ruling that NASA’s disqualification decision was arbitrary and
capricious. Id. at 1, 8, 13-14.
1
On February 4, 2020, the court set a schedule for A2JV’s motion for bid preparation and
proposal costs “and/or attorney’s fees under 28 U.S.C. § 2412.” Order at 2, ECF No. 172.
Applications for EAJA fees have been considered by this court as premature when they are filed
prior to a final judgment. See Heger v. United States, 114 Fed. Cl. 204, 208 (2014). However,
given the court’s invitation in the February 4, 2020 scheduling order and no objection regarding
timeliness from the government, the court considers A2JV’s EAJA application as one for interim
EAJA fees, and will address it. See id. at 209 (discussing the availability of interim fees).
5
In response, the government argues that A2JV is not entitled to bid preparation
and proposal costs because NASA’s legal error – the disqualification decision – did not
cause A2JV’s ultimate inability to become an awardee. Def.’s Resp. at 5-10, ECF No.
176. The government further contends that most of A2JV’s claimed bid preparation and
proposal costs are not reasonable, and some are not allowable. Id. at 10-17. Finally, the
government argues that A2JV is not entitled to attorney’s fees because A2JV is not a
prevailing party and the government’s position regarding A2JV’s disqualification was
substantially justified. Id. at 18-23.
In reply, A2JV argues that this court recognized that A2JV had been prejudiced
despite the cancellation and that A2JV need not show that it could have become an
awardee to qualify for bid preparation and proposal costs. Pl.’s Reply at 2-5, ECF No.
179. A2JV further contends that its costs are reasonable and allocable. Id. at 8-12.
Finally, A2JV reiterates that is entitled to recover attorney’s fees because it is a
prevailing party and because the government’s position was not substantially justified.
Id. at 12-16.
II. DISCUSSION
The court first turns to A2JV’s request for bid preparation and proposal costs, and
then to the request for attorney’s fees and costs. For the reasons that follow, the court
denies both.
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A. A2JV Is Not Entitled to Bid Preparation and Proposal Costs Because
the Disqualification Decision Did Not Cause A2JV’s Ultimate Inability
to Become an Awardee
Under the Tucker Act, this court in bid protest cases “may award any relief that
the court considers proper . . . except that any monetary relief shall be limited to bid
preparation and proposal costs.” 28 U.S.C. § 1491(b)(2). “Bid preparation and proposal
costs in essence are damages awarded to a protestor to provide relief for its wasted efforts
in bidding on an unfair, erroneous, or illegal procurement.” Q Integrated Cos., LLC v.
United States, 132 Fed. Cl. 638, 642 (2017). Bid preparation and proposal costs “are
recoverable only if three conditions are satisfied: (i) the agency has committed a
prejudicial error in conducting the procurement; (ii) that error caused the protester to
incur unnecessarily bid preparation and proposal costs; and (iii) the costs to be recovered
are both reasonable and allocable, i.e., incurred specifically for the contract in question.”
Reema Consulting Servs., Inc. v. United States, 107 Fed. Cl. 519, 532 (2012). The
protestor “bears the burden of proving that it is entitled to recover its costs.” Q Integrated
Cos., LLC v. United States, 133 Fed. Cl. 479, 485 (2017).
Applying these standards, the court agrees with the government, Def.’s Resp. at 5-
10, that A2JV is not entitled to bid preparation and proposal costs. To recover bid
preparation and proposal costs, a protestor must demonstrate that the agency’s prejudicial
error “caused the protester to incur unnecessarily bid preparation and proposal costs.”
Reema, 107 Fed. Cl. at 532. This causation prong operates to “place the [protestor] in the
position he or she would have occupied but for defendant’s wrong.” Id. (internal
quotation omitted). If these costs were “not rendered a needless expense by defendant’s
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erroneous conduct, but rather were lost due to” some other reason, the bid preparation
and proposal costs are not recoverable. Id. at 533 (internal quotations and citations
omitted); see also Hyperion, Inc. v. United States, 120 Fed. Cl. 504, 507-08 (2015)
(holding that the protestor was not entitled to bid preparation and proposal costs where
the protestor’s successful challenge resulted in the set-aside of the initial award, but
where the protestor was then unable to re-compete due to a proper decision to cancel the
solicitation and re-procure the services through a sole-source award).
Here, this court held that NASA acted arbitrarily and capriciously in disqualifying
A2JV’s proposal. See Feb. 4, 2020 Order at 1 (noting that A2JV’s requests for
declaratory relief that the disqualification decision was arbitrary, capricious, and not in
accordance with law had been granted). But this disqualification is not the reason for
A2JV’s inability to become an awardee of the ABSS2 contract. Rather, NASA’s
reasonable decision to cancel the ABSS2 competition altogether after delays caused by
other protests and a change in NASA policy caused A2JV’s inability to become an
awardee of the ABSS2 contract. See A2JV III, 145 Fed. Cl. at 681-84. These reasons for
the cancellation had nothing to do with A2JV’s challenge to its disqualification. A2JV
has thus failed to establish a causal link between NASA’s legal error – the
disqualification decision – and A2JV’s eventual inability to get a contract. See Reema,
107 Fed. Cl. at 532-33. In other words, the disqualification decision was not the cause of
A2JV unnecessarily incurring its bid preparation and proposal costs; ultimately, NASA’s
proper cancellation decision was the cause, and A2JV would have lost its bid preparation
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and proposal costs even if NASA had not disqualified A2JV. A2JV is thus not entitled to
the bid preparation and proposal costs it seeks.
In this connection, it is important to remember that A2JV was not the only offeror
who unsuccessfully competed for an ABSS2 contract. NASA received twenty proposals
in response to the solicitation. A2JV III, 145 Fed. Cl. at 678. Several of these were in the
competitive range, but, just like A2JV, these companies will not be awarded an ABSS2
contract. Id.; see E.W. Bliss Co. v. United States, 77 F.3d 445, 447 (Fed. Cir. 1996)
(“Proposal preparation expenses are a cost of doing business that normally are lost when
the effort to obtain the contract does not bear fruit.” (internal quotations and citations
omitted)). Awarding A2JV bid preparation and proposal costs would provide A2JV a
substantial windfall that other offerors cannot obtain.
A2JV’s arguments to the contrary are not persuasive. A2JV appears to argue that
it was prejudiced by the agency’s cancellation decision. See Pl.’s Reply at 6 (arguing that
“here,” the court found that A2JV “was prejudiced by the agency’s cancellation
decision”). However, the court did not determine that NASA committed a prejudicial
error in cancelling the solicitation. Rather, the court found NASA’s cancellation decision
reasonable. A2JV III, 145 Fed. Cl. at 681-84. Moreover, the court further held that
NASA’s proper cancellation decision was unrelated to the disqualification error. Id. at
684; see also Def.’s Resp. at 8 & n.2.
With this in mind, the cases A2JV relies on to claim bid preparation and proposal
costs are inapposite. First, A2JV cites Innovation Development Enterprises of America,
Inc. v. United States, 114 Fed. Cl. 213, 216 (2014) to demonstrate that it has established
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the causal link between NASA’s legal error and its bid preparation and proposal costs.
Pl.’s Reply at 4. In Innovation Development, the protestor alleged that the agency had
acted unreasonably when it awarded a sole-source bridge contract to the incumbent
contractor, rather than conducting a competitive procurement on which the protestor
could have bid. Innovation Dev. Enters. of America, Inc. v. United States, 108 Fed. Cl.
711, 720-21 (2013). This court agreed with the protestor and held that the agency had
acted arbitrarily and capriciously in awarding the sole-source contract. Id. at 727.
Despite the fact that the sole-source contract had already been fully performed by the
time the court had issued its opinion, the court determined that the matter was not moot
because, although the protestor could not obtain injunctive or declaratory relief, the
protestor could still recover bid preparation and proposal costs. Id. at 724.
Relying on Innovation Development, A2JV argues that this court may award “bid
preparation and proposal costs when, after a finding of the agency’s legal error, a
protestor cannot become an awardee” for a reason other than that error. Pl.’s Reply at 4.
However, in making this argument, A2JV misconstrues the decision in Innovation
Development. The legal error in Innovation Development – the improper sole-source
award – caused the protestor to lose its bid preparation and proposal costs.2 Here,
NASA’s justified cancellation decision ultimately caused A2JV to unnecessarily incur its
bid preparation and proposal costs, not NASA’s erroneous disqualification decision.
2
The protestor in Innovation Development was ultimately denied bid preparation and proposal
costs because no draft proposal was ever prepared by the protestor or submitted to the agency.
114 Fed. Cl. at 222.
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Second, A2JV cites Klinge Corp. v. United States, 82 Fed. Cl. 127 (2008) (Klinge
I) and Klinge Corp. v. United States, 83 Fed. Cl. 773 (2008) (Klinge II) in support of its
position. Pl.’s Reply at 5. In Klinge I, the protestor succeeded in its challenge to the
agency’s indefinite delivery, indefinite quantity contract (IDIQ) solicitation, and this
court enjoined performance under the IDIQ contract. 82 Fed. Cl. at 139. Following the
injunction, the agency recompeted the contract under the Federal Supply Schedule (FSS),
for which the protestor was not eligible to compete. Klinge II, 83 Fed. Cl. at 774-75.
The protestor challenged the FSS solicitation, seeking to enjoin the FSS solicitation on
the grounds that the agency had improperly cancelled the original IDIQ solicitation. Id.
at 774. The court found that there was “prejudicial error in the agency’s de facto
cancellation of the first [IDIQ] procurement.” Id.; see id. at 779-80 (explaining that the
agency erred in determining that it could not consider the protestor’s proposal under the
original solicitation and therefore initiated the FSS solicitation). However, the court
declined to enjoin the FSS solicitation, which was “otherwise unimpeached.” Id. at 780.
Instead, the court awarded the protestor bid preparation and proposal costs in connection
with its challenge to the IDIQ solicitation because the injunctive relief the protestor was
awarded in the IDIQ challenge had been made irrelevant by the erroneous cancellation
decision. Id.; see also Klinge Corp. v. United States, 87 Fed. Cl. 473, 474 (2009).
A2JV argues that Klinge I and Klinge II demonstrate that this court has awarded
bid preparation and proposal costs “when, after a finding of the agency’s legal error, the
agency cancelled the procurement and the successful protestor was not returned to the
position he or she would have occupied but for the defendant’s wrong.” Pl.’s Reply at 5
11
(internal quotation omitted). However, A2JV again fails to recognize that a legal error
caused protestor to lose its bid preparation and proposal costs. In Klinge I and Klinge II,
the court not only determined that the agency had erred in conducting the IDIQ
solicitation, but the agency also committed prejudicial error when it cancelled that
solicitation. Ultimately, the Klinge court determined that the prejudicial cancellation
error warranted an award of bid preparation and proposal costs, because the previously-
awarded injunctive relief was no longer available. Klinge II, 83 Fed. Cl. at 474.
In contrast, here, the court determined that NASA did not err in cancelling the
solicitation at issue, nor did the court previously award A2JV injunctive relief based on
the disqualification decision; in fact, the agency had properly cancelled the solicitation
before injunctive relief could be considered. A2JV has not shown that NASA’s error –
the disqualification decision – was the cause of its unnecessarily incurred bid preparation
and proposal costs. A2JV’s motion for bid preparation and proposal costs is therefore
denied.
B. A2JV is Not Entitled to Attorney’s Fees and Costs Because A2JV is Not
a Prevailing Party
EAJA provides that “a court shall award to a prevailing party other than the United
States fees and other expenses . . . incurred by that party in any civil action . . . brought
by or against the United States in any court having jurisdiction of that action, unless the
court finds that the position of the United States was substantially justified or that special
circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). EAJA also provides
for the award of certain costs to a “prevailing party.” Id. § 2412(a). “The essential
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objective of the EAJA is to ensure that persons will not be deterred from seeking review
of, or defending against, unjustified governmental action because of the expense involved
in the vindication of their rights.” Kelly v. Nicholson, 463 F.3d 1349, 1353 (Fed. Cir.
2006) (alterations and quotations omitted).
“To recover an award under EAJA, the applicant must prove that it was the
prevailing party in the underlying action.” Impresa Construzioni Geom. Domenico
Garufi v. United States, 100 Fed. Cl. 750, 759 (2011) (internal quotations omitted). The
term “prevailing party,” as it appears in EAJA, “means a party that obtains a ‘material
alteration of the legal relationship of the parties.’” Dellew Corp. v. United States, 855
F.3d 1375, 1379 (Fed. Cir. 2017) (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va.
Dep’t of Health & Human Res., 532 U.S. 598, 604 (2001)). Such a change in the parties’
legal relationship “must have a certain judicial imprimatur, such as an enforceable
judgment on the merits or a court-ordered consent decree.” Dellew Corp., 855 F.3d at
1379-80 (internal quotations and alterations omitted).
An award of declaratory relief may confer prevailing party status. See Lefemine v.
Wideman, 568 U.S. 1, 4 (2012). However, declaratory relief is insufficient where it does
not “affect[] the behavior of the defendant toward the plaintiff.” Rhodes v. Stewart, 488
U.S. 1, 4 (1988) (per curiam); see also Tx. State Teachers Ass’n. v. Garland Indep. Sch.
Dist., 489 U.S. 782, 792 (1989). The declaratory relief must “modify[] the defendant’s
behavior in a way that directly benefits the plaintiff.” Lefemine, 568 U.S. at 4.
Applying these standards, the court concludes that A2JV has not demonstrated that
it is a prevailing party under EAJA, and that, therefore, A2JV’s motion for attorney’s
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fees, expenses, and costs must be denied. As an initial matter, it is undisputed that A2JV
has not obtained injunctive relief or money damages in this case, which “will usually
satisfy” the prevailing party test. Id. In fact, following NASA’s cancellation decision,
the court dismissed as moot A2JV’s prayers for injunctive relief seeking to reinstate the
ABSS2 solicitation. See A Squared Joint Venture, 2019 WL 2591205, at *3 (dismissing
the eighth and ninth prayers for relief in A2JV’s third amended complaint); Innovation
Dev. Enter. of Am., Inc. v. United States, 600 F. App’x 743, 747 (Fed. Cir. 2015)
(unpublished) (holding that a protestor who “did not receive an injunction and recovered
no money damages” cannot qualify as a prevailing party under EAJA).
Instead, A2JV relies on the court’s ruling in its favor as to NASA’s
disqualification decision, granting A2JV declaratory relief that the decision was arbitrary,
capricious, and not in accordance with law. Nov. 29, 2018 Order, ECF No. 104 (holding
in A2JV’s favor); Dec. 21, 2018 Order, ECF No. 113 (denying in relevant part
reconsideration and directing the parties to brief the propriety and scope of injunctive
relief); Feb. 4, 2020 Order, ECF No. 172 (noting that A2JV’s requests for declaratory
relief that the disqualification decision was arbitrary, capricious, and not in accordance
with law had been granted). However, as discussed above, declaratory relief is only
sufficient to confer prevailing party status if that relief materially alters the legal
relationship between the parties. See Dellew Corp., 855 F.3d at 1379; Lefemine, 568 U.S.
at 4. Here, the court agrees with the government, Def.’s Resp. at 18-21, that under the
circumstances of this case, the court’s holding that NASA’s disqualification decision was
arbitrary and capricious is insufficient to satisfy the prevailing party test.
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To begin, A2JV has not shown that NASA took any action that directly benefited
A2JV based on the court’s legal holding. Although the court asked the parties to brief
whether injunctive relief should be granted, the parties never had that opportunity
because, for reasons unrelated to A2JV’s challenge, the court found that NASA had
properly cancelled the solicitation. In such circumstances, A2JV’s claim for injunctive
relief became moot. See A Squared Joint Venture, 2019 WL 2591205, at *3. Moreover,
although the court declined to hold that A2JV’s claims for declaratory relief were moot
because “A2JV still has a claim for bid preparation costs” and other relief depending on
the outcome of the cancellation decision, see id., the court has now upheld the
cancellation and has declined to award A2JV bid preparation and proposal costs. A2JV
therefore cannot demonstrate that any direct action has been taken or monetary relief
awarded that is associated with the declaratory relief granted by the court.
Instead, in its motion, A2JV claims that the court’s ruling that the disqualification
decision was arbitrary may alter the parties’ relationship in the future because “[t]here
can be no doubt that if the joint venture were to again bid on a NASA opportunity, that
NASA could not ignore the rulings of this [c]ourt.” Pl.’s Mot. at 14. However, as the
government argues, A2JV’s assertion is speculative and cannot support a finding that the
parties’ legal relationship changed based on the granted declaratory relief. Def.’s Resp.
at 20-21. A2JV does not show that NASA intends to, in the future, solicit services on
which A2JV will bid or that the factual situation that led to A2JV’s disqualification
would arise again in that future solicitation. Because A2JV has not shown that the
court’s declaratory relief “modified the defendant’s behavior in a way that directly
15
benefits” A2JV, Lefemine, 568 U.S. at 4, A2JV has failed to demonstrate that it is a
prevailing party under EAJA.
The two cases A2JV relies on, Infiniti Information Solutions, LLC v. United States,
94 Fed. Cl. 740 (2010) and Naplesyacht.com v. United States, No. 04-252C, 2005 WL
6112642 (Fed. Cl. Mar. 31, 2005), do not show otherwise. Pl.’s Reply at 13-14. It is true
that in both of these cases, declaratory relief was found to convey prevailing party status.
Infiniti, 94 Fed. Cl. at 747-48; Naplesyacht, 2005 WL 6112642, at *8. However, in both
cases, the protestor was able to show that the declaratory relief granted changed the legal
relationship between the parties. In Infiniti Information, the court issued declaratory
relief that affirmatively “set aside” the relevant contract. 94 Fed. Cl. at 747-48. And in
Naplesyacht.com, the court determined that the declaratory relief it had ordered “was
designed to prevent abuse on future contracts for which plaintiff may compete,” and the
court also awarded bid preparation and proposal costs. 2005 WL 6112642, at *8.
In contrast, A2JV here obtained only a declaration that NASA’s disqualification
decision was arbitrary and capricious. That decision, however, became irrelevant once
that court determined that NASA was justified for wholly separate reasons to cancel the
ABSS2 procurement. Because of the justified cancellation decision, the court’s earlier
declaratory judgment did not ultimately alter the legal relationship between the parties.
Cf. Rhodes, 488 U.S. at 4 (holding that a plaintiff who obtains a formal declaratory
judgment but gains no real “relief whatsoever” is not a prevailing party). For these
reasons, A2JV has not demonstrated that it is a prevailing party, and its motion for
attorney’s fees, expenses, and costs under EAJA must be denied.
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III. CONCLUSION
Based on the foregoing, A2JV’s motion for bid preparation and proposal costs and
for attorney’s fees, ECF No. 175, is DENIED.
Pursuant to the court’s November 18, 2019 opinion denying A2JV’s motion for
judgment on the administrative record and granting the government’s cross motion for
judgment on the administrative record, ECF No. 153, and pursuant to this opinion
denying A2JV’s motion for bid preparation and proposal costs, the Clerk is directed to
enter judgment in favor of the government.
IT IS SO ORDERED.
s/Nancy B. Firestone
NANCY B. FIRESTONE
Senior Judge
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