Appealed from U.S. Claims Court.
Baldwin, Miller, and Nies, Circuit Judges.
This is an appeal from a judgment of the United States Claims Court, Essex Electro Engineers, Inc. v. United States, 4 Cl. Ct. 463 (1984), denying appellant's application for attorney fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (1982). We hold that the Claims Court possesses jurisdiction to award attorney fees and expenses under the EAJA for cases commenced after October 1, 1982, and, on the merits, we affirm the denial of an award in this case.
Essex Electro Engineers, Inc. (Essex) applied for fees and expenses incurred in a bid protest suit in which Essex obtained a judgment declaring it to be a responsive bidder in a procurement conducted by the Federal Aviation Administration (FAA) and a permanent injunction barring award of the subject contract to any other bidder. Essex Electro Engineers, Inc. v. United States, 3 Cl. Ct. 277 (1983). The factual background is detailed in the lower court's opinions, which we only summarize here.
In August 1982, the FAA issued an invitation for bids (IFB) for the production of engine generator sets. The IFB for the production of engine generator sets. The IFB specifications required that the engine run at a maximum synchronous speed of 1200 rpm. Forster Enterprises was the lowest bidder, Essex was the second lowest, and Introl Corporation was third lowest. Forster, in its bid, offered a Cummins engine which,according to its own accompanying descriptive material, did not meet the engine output requirement. Essex offered the same Cummins engine or an Allis-Chalmers engine. Although Essex provided no descriptive literature on the Cummins engine, it did supply two pages of a brochure applicable to a standard model Allis-Chalmers engine but which did not address engine output. The cover letter accompanying the Essex bid stated that, if there were any conflict between the general literature and the IFB specifications, the specifications would control. Introl offered a General Motors engine and supplied no descriptive literature. The FAA provisionally determined that Forster was the lowest responsive and responsible bidder.
Introl initiated a protest before the General Accounting Office (GAO) contending that it was the lowest responsive bidder on the basis that neither the Cummins engine nor the Allis-Chalmers engine met the IFB output requirements. The GAO determined that Forster's bid was nonresponsive because Forster's descriptive literature indicated that the Cummins engine would not meet the output requirement. The GAO also found Essex's bid to be nonresponsive based on the Forster literature showing the Cummins engine unable to meet the output requirement, and on a complete brochure for the Allis-Chalmers engine obtained by the FAAD which showed that the Allis-Chalmers engine normally operated at 1800 rpm and that modification would be needed to permit operation at the required 1200 rpm. The GAO refused to consider evidence submitted by Essex during the protest supporting compliance with the output requirement. Introl's bid was deemed responsive based in part on descriptive literature submitted by Introl during the protest proceedings.
Relying on the GAO decision, the FAA awarded the contract to Introl. Forster unsuccessfully sought in the Claims Court to enjoin issuance of the contract to Introl. Essex then filed suit in the Claims Court asking for injunctive and declaratory relief restraining the FAA from awarding the contract to any bidder other than Essex.
The government's litigating position in the Claims Court consisted of three general arguments:
1) the agency action was rational;
2) the scope of judicial review of an agency's pre-award procurement decision is very limited and both the agency's and GAO's determinations should be accorded strong deference; and
3) Essex was not treated unfairly.
The Claims Court concluded that the agency irrationally determined that Essex's bid was ambiguous, the FAA and GAO irrationally refused to consider literature proffered by Essex showing compliance, and, therefore, that the agency procurement decision was irrational. The court also determined that the agency decision treated Essex unfairly insofar as literature favorable to Introl was considered but literature supporting Essex was not considered. Essex was ...