In the United States Court of Federal Claims Bid Protest

Transcription

1 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 1 of 27 In the United States Court of Federal Claims Bid Protest HYPERION, INC Commerce Park Drive, Suite 120 Reston, Virginia Plaintiff, v. No C Judge Charles F. Lettow THE UNITED STATES, Defendant. PLAINTIFF S CLAIM FOR ATTORNEY S FEES AND RELATED NONTAXABLE EXPENSES Under RCFC 54(d(2 Plaintiff Hyperion, Inc. (Hyperion herewith Claims, 28 U.S.C. 2412(d(1, the Attorney Fees and Related Nontaxable Expenses which were incurred in this Civil Action.

2 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 2 of 27 This Motion is timely filed by a qualified Party: (a a Judgment entitling Plaintiff Hyperion to this Award was entered on April 10 th, 2014 (ECF Document Number 33, filed April 10 th, 2014; (b this Judgment became final on June 9 th, 2014, when no Appeal was taken to the United States Court of Appeals for the Federal Circuit, 28 U.S.C. 1295(a(3; (c this Motion for Award of Attorney Fees and Related Nontaxable Expenses is timely filed within thirty days from the date the Judgment became final, 28 U.S.C. 2412(d(1(B; and (d Plaintiff Hyperion, which when this Civil Action was filed on December 23 rd, 2013 had not more than $7,000,000 in net worth or 500 employees (Attachment 1, is a qualifying Corporate private Party, 28 U.S.C. 2412(d(2(B(ii. Plaintiff Hyperion is a prevailing Corporate private Party, 28 U.S.C. 2412(d- (1(A: Plaintiff Hyperion sought a Permanent Injunction compelling Defendant and its Agency, United States Army Contracting Command Aberdeen Proving Ground (Defendant, to terminate the Contract proposed by Solicitation Number - 2 -

3 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 3 of 27 W15P7T-13-R-D002 and awarded to Technical Communications Solutions Corporation (TCSC on December 16 th, 2013 (ECF Document Number 10, page 30 of 33, filed December 31 st, 2013; and the Court ultimately entered a Judgment settingaside the Contract awarded by Defendant s Agency to TCSC (ECF Document Number 33, filed April 10 th, The overall position of Defendant in this Civil Action and the overall position of its Agency prior to filing this Civil Action were both without substantial justification. Miles Construction, LLC v. United States, 113 Fed. Cl. 174, 178 (2013. Plaintiff Hyperion raised at the telephonic debriefing required by 10 U.S.C. 2305(b(5 and conducted by the Agency on December 20 th, 2013 that (1 TCSC did not comply with definitive responsibility criteria of Solicitation Number W15P- 7T-13-R-D002, this in violation of Federal Acquisition Regulation (a (e-cfr December 16 th, 2013 which authorizes Special Standards of responsibility, and (2 that TCSC s Competitive Proposal and the Competitive Proposals submitted by two - 3 -

4 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 4 of 27 other Offerors whose prices are lower than the Price proposed by Plaintiff Hyperion comply neither with the LIMITATIONS ON SUBCONTRACTING (NOV 2011 provision of Solicitation Number W15P7T-13-R-D002 nor with 15 U.S.C. 644(o, 657s(a, this also in violation of Federal Acquisition Regulation (d (e-cfr December 16 th, 2013 (ECF Document Number 10, pages 3 and 4 of 33, filed December 31 st, The Court found the Competitive Proposals of TCSC and the two other Offerors whose prices are lower than the Price proposed by Plaintiff Hyperion to be facially non-compliant with the LIMITATIONS ON SUBCONTRACTING (NOV 2011 provision of Solicitation Number W15P7T-13-R-D002 (ECF Document Number 37, pages 11 through 16 of 19, filed April 17 th, The Court chose not to rule on Plaintiff Hyperion s assertion that TCSC did not comply with definitive responsibility criteria of Solicitation Number W15P7T-13-R-D002 (ECF Document 37, page 14 n.16 of 19, filed April 17 th,

5 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 5 of 27 The Agency made no response to Plaintiff Hyperion s assertions at the telephonic Debriefing; Defendant has no substantial justification for its subsequent litigation of the merits of Plaintiff Hyperion s assertions. 360Training.Com, Inc. v. United States, 111 Fed. Cl. 356, 361 (2013. Here no special circumstances make unjust an Award of Attorney s Fees and Related Nontaxable Expenses, 28 U.S.C. 2412(d(1(A. The Competitive Proposals before the Agency and this Post-Award Procurement Protest which followed concerned facts known to the Agency, not substantive legal issues there were no credible interpretations or extensions of existing law here in issue. Plaintiff Hyperion has not reaped a windfall in circumstances which counsel against an Award. Lion Raisins, Inc. v. United States, 57 Fed. Cl. 505, (2003. Plaintiff Hyperion seeks an Award of $30, in Attorney s Fees and $ in Related Nontaxable Expenses. Attorney s Fees are claimed for hours of time worked during the period December 17 th, 2013 through April 17 th,

6 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 6 of 27 Claimed Attorney s Fees are reduced by forty-eight minutes each for time billed on February 4 th, 2014 and on March 11 th, 2014, this time billed on un-related Matters. Billings supporting these Attorney s Fees and Related Nontaxable Expenses are Attachment 2. Besides these Monthly Billings, Plaintiff Hyperion has incurred 7.6 hours for Attorney s Fees: (1 to complete and file this Claim for Attorney Fees with its supporting Attachments, and (2 to complete and separately file a related Bill of Costs. Attorney s Fees here Claimed are calculated based on the cost-of-living adjustment contemplated by 28 U.S.C. 2412(d(2(A(ii. The mid-point for the period of these legal services rendered is February The calculated hourly rate with cost-of-living adjustment for these legal services is $ Here is the formula: $125 hourly rate cap X /155.7 cost-of-living adjustment = $ The cost-of-living adjustment is calculated using the Bureau of Labor Statistics Consumer Price Index (CPI-U for All Urban Consumers and this by comparing the - 6 -

7 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 7 of 27 CPI-U Index for March 1996 with the CPI-U Index for February Lion Raisins, 57 Fed. Cl., at n.19. Respectfully submitted, /s/ Cyrus E. Phillips IV Cyrus E. Phillips IV Virginia State Bar Number June 17 th, 2014 ALBO & OBLON, L.L.P. Courthouse Plaza 2200 Clarendon Boulevard, Suite 1201 Arlington, Virginia Telephone: ( Facsimile: ( Mobile: ( Electronic Mail: lawyer@procurement-lawyer.com - 7 -

8 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 8 of 27 CERTIFICATE OF SERVICE I certify, under penalty of perjury, that on Tuesday, June 17 th, 2014 this Plaintiff s Motion for Attorney s Fees was filed electronically via the Court s Electronic Case Filing System, through which notice of this filing will be sent to: Ryan M. Majerus, Esq. Electronic Mail: Ryan.M.Majerus@usdoj.gov Attorney of record for Defendant, United States Department of Defense, United States Army Contracting Command Aberdeen Proving Ground. /s/ Cyrus E. Phillips IV Cyrus E. Phillips, IV - 8 -

9 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 9 of 27 ATTACHMENT 1

10 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 10 of 27 In the United States Court of Federal Claims Bid Protest HYPERION, INC Commerce Park Drive, Suite 120 Reston, Virginia Plaintiff, v. TH E UNITED STATES, Defendant. No C Judge Charles F. Lettow D ECLARATION OF P AUL MILO, JR. Pursuant to 28 U.S.C. 2412(d(2(B(ii, I, Paul M ilo, Jr., make the following Declaration under penalty of perjury: 1. I am the President of Hyperion, Inc. (Hyperion, a Virginia domestic for-profit Corporation, at the time this Civil Action was filed. 2. This Civil Action was filed on December 23'd, 2013.

11 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 11 of As of that day the net worth of Hyperion did not exceed $7,000,000, and Hyperion had not more than 500 employees. I declare, under penalty of perjury, that the foregoing is true and correct. Executed on Tuesday, June l 7 1 h, Paul Milo, Jr. President Hyperion, Inc Commerce Park Drive, Suite 120 Reston, Virginia ( x

12 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 12 of 27 ATTACHMENT 2

13 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 13 of 27 ALBO & OBLON, L.L.P. ATTORNEYS AND COUNSELORS AT LAW COURTHOUSE PLAZA 2200 CLARENDON BOULEVARD, SUITE 1201 ARLINGTON, VIRGINIA TELEPHONE: FACSIMILE: ELECTRONIC MAIL: TAXPAYER IDENTIFICATION NUMBER January 6 th, 2014 Paul Milo President Hyperion, Inc International Drive, Suite 660 McLean, Virginia INVOICE LEGAL SERVICES FOR THE PERIOD DECEMBER 1 st, 2013 THROUGH DECEMBER 31 st, 2013 Matter Fees Disbursements GENERAL CORPORATE $14, $ TOTALS: $14, $ TOTAL FEES FOR LEGAL SERVICES $15, TOTAL DUE THIS STATEMENT $15,362.50

14 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 14 of 27 BILLING STATEMENT DECEMBER 1 st, 2013 DECEMBER 31 st, 2013 LEGAL SERVICES DATE DESCRIPTION HOURS GENERAL CORPORATE 12/17 - telephone conference with Paul Milo, Tom Bryan, Bill Schlichter, Richard Lee re Award Notice, APG Solicitation W15P7T-13-R-D002; review Award Notice, Dun & Bradstreet Trade Information Report on Technical Communications Solutions Corporation; draft Court of Federal Claims Prefiling Notification, forward copies for review; telephone conference with Paul Milo, David Ruesch, Bill Schlichter, Richard Lee; complete and serve Prefiling Notification /18 - review Solicitation documents; Lexis-Nexis online legal research on definitive responsibility criteria; telephone conference with Paul Milo, Tom Bryan, Bill Schlichter, Richard Lee re Awardee performance arrangements; review all published Q & A s, SOW, and SRD; prepare questions for telephonic Debriefing; Lexis-Nexis online legal research on Limitations on Subcontracting provision; begin drafting Post-Award Procurement Protest Complaint /19 - Lexis-Nexis online legal research; continue drafting Post-Award Procurement Protest Complaint; telephone call with Ryan Majerus; telephone conference with Paul Milo, Tom Bryan, Bill Schlichter, Richard Lee; telephone call with Tom Bryan; review Debriefing slides; telephone call with Paul Milo /20 - Lexis-Nexis online legal research; telephone conference with Paul Milo, Tom Bryan, Bill Schlichter, Richard Lee re Debriefing; complete Post-Award Procurement Protest Complaint; telephone call with Ryan Majerus re filing; exchange electronic messages with Ryan Majerus re agreed stay, schedule for proceedings; complete RCFC 7.1 Disclosure Statement; complete Cover Sheet

15 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 15 of 27 12/21 - Lexis-Nexis online legal research; prepare final Post-Award Procurement Protest Complaint; prepare paper copies for filing; telephone call with Paul Milo, Bill Schlichter /23 - travel to National Courts Building and return; file Cover Sheet, Post-Award Protest Complaint, Disclosure Statement; review and correct scanned copies of Post-Award Procurement Protest Complaint; review Notice of Appearance; forward corrected copies of scanned Post-Award Procurement Protest Complaint to Ryan Majerus, Paul Milo, David Ruesch, Tom Bryan, Richard Lee, Bill Schlichter; telephone call with Chambers re scheduling telephonic Prehearing Conference; review and respond to electronic message from Tom Bryan re Percentages for Limitation on Subcontracting provision; meet with Paul Milo re Declarations; review Scheduling Order /27 - Scheduling Conference with Judge Lettow, Ryan Majerus; begin preparation of Amended Post-Award Procurement Protest Complaint /28 - Lexis/Nexis on-line legal research; continue preparation of Amended Post-Award Procurement Protest Complaint /30 - telephone call with Paul Milo; revise and file protected Amended Post-Award Procurement Protest Complaint; prepare public Amended Post-Award Procurement Protest Complaint and serve Ryan Majerus together with copies of Debriefing slides /31 - file public Amended Post-Award Procurement Protest Complaint, provide filed copies to Paul Milo, David Ruesch, Tom Bryan, Richard Lee, Bill Schlichter 0.5 SUMMARY OF LEGAL SERVICES Rate/Hour Hours Dollars Cyrus E. Phillips IV $ $14, GENERAL CORPORATE 39.9 $14, TOTAL FEES FOR LEGAL SERVICES $14,

16 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 16 of 27 COSTS AND DISBURSEMENTS 12/23 - Court of Federal Claims Filing Fee $ TOTAL COSTS AND DISBURSEMENTS $ TOTAL DUE THIS STATEMENT $15,

17 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 17 of 27 ALBO & OBLON, L.L.P. ATTORNEYS AND COUNSELORS AT LAW COURTHOUSE PLAZA 2200 CLARENDON BOULEVARD, SUITE 1201 ARLINGTON, VIRGINIA TELEPHONE: FACSIMILE: ELECTRONIC MAIL: TAXPAYER IDENTIFICATION NUMBER February 6 th, 2014 Paul Milo President Hyperion, Inc International Drive, Suite 660 McLean, Virginia INVOICE LEGAL SERVICES FOR THE PERIOD JANUARY 1 st, 2014 THROUGH JANUARY 31 st, 2014 Matter Fees Disbursements GENERAL CORPORATE $11, TOTALS: $11, TOTAL FEES FOR LEGAL SERVICES $11, PAST DUE $15, TOTAL DUE THIS STATEMENT $27,520.00

18 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 18 of 27 BILLING STATEMENT JANUARY 1 st, 2014 JANUARY 31 st, 2014 LEGAL SERVICES DATE DESCRIPTION HOURS GENERAL CORPORATE 1/2 - review Protective Order; complete and file Application for Access 0.7 1/27 - begin review of Administrative Record 4.3 1/28 - conclude review of Administrative Record; commence drafting RCFC 52.1(c(1 Statement of Facts 6.8 1/29 - continue drafting RCFC 52.1(c(1 Statement of Facts 8.3 1/30 - complete RCFC 52.1(c(1 Statement of Facts; begin drafting Brief in Support 7.2 1/31 - continue drafting Brief in Support 4.4 SUMMARY OF LEGAL SERVICES Rate/Hour Hours Dollars Cyrus E. Phillips IV $ $11, GENERAL CORPORATE 31.7 $11, TOTAL FEES FOR LEGAL SERVICES $11, PAST DUE $15, TOTAL DUE THIS STATEMENT $27,

19 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 19 of 27 ALBO & OBLON, L.L.P. ATTORNEYS AND COUNSELORS AT LAW COURTHOUSE PLAZA 2200 CLARENDON BOULEVARD, SUITE 1201 ARLINGTON, VIRGINIA TELEPHONE: FACSIMILE: ELECTRONIC MAIL: TAXPAYER IDENTIFICATION NUMBER March 4 th, 2014 Paul Milo President Hyperion, Inc International Drive, Suite 660 McLean, Virginia INVOICE LEGAL SERVICES FOR THE PERIOD FEBRUARY 1 st, 2014 THROUGH FEBRUARY 28 th, 2014 Matter Fees Disbursements GENERAL CORPORATE $24, $ TOTALS: $25, TOTAL FEES FOR LEGAL SERVICES $25, PAST DUE SECOND REQUEST $27, TOTAL DUE THIS STATEMENT $52,839.63

20 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 20 of 27 BILLING STATEMENT FEBRUARY 1 st, 2014 FEBRUARY 28 th, 2014 LEGAL SERVICES DATE DESCRIPTION HOURS GENERAL CORPORATE 2/1 - continue drafting Brief in Support 5.1 2/2 - continue drafting Brief in Support 3.4 2/3 - continue drafting Brief in Support 9.6 2/4 - complete Brief in Support; complete Motion for Judgment; complete Print copies of Motion, Statement of Facts, Brief in Support; complete Service copies of Motion, Statement of Facts, Brief in Support; complete public versions of Statement of Facts, Brief in Support 7.2 2/5 - file Motion, Statement of Facts, Brief in Support; serve DoJ; furnish MS Word documents to DoJ; serve proposed redacted versions of Statement of Facts, Brief in Support on DoJ; serve courtesy copies for Chambers 2.8 2/8 - review additional redactions requested by DoJ; revise Statement of Facts, Brief in Support to incorporate additional redactions; file redacted Motion for Judgment on the Administrative Record; serve DoJ 3.3 2/16 - Lexis/Nexis online legal research; begin drafting Price Reasonableness/Price Realism Argument 1.7 2/17 - Lexis/Nexis online legal research, continue drafting Price Reasonableness/Price Realism Argument 1.8 2/20 - review Aberdeen Response to Motion, Cross Motion; begin drafting Response to Cross-Motion, Reply to Response

21 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 21 of 27 2/21 - Lexis/Nexis online legal research; continue drafting Response to Cross-Motion, Reply to Response 7.7 2/22 - Lexis/Nexis online legal research; continue drafting Response to Cross-Motion, Reply to Response 8.4 2/23 - continue drafting Response to Cross-Motion, Reply to Response 5.2 2/24 - complete Brief in Support; draft Response/Reply; prepare paper copies for Chambers; prepare proposed public version of Brief in Support 4.8 2/25 - file Response/Reply, Brief in Support; serve DoJ; serve proposed public copies of Brief in Support; file paper copies for Chambers 1.9 2/26 - review Army redactions of Brief in Support; file public copies of Response/Reply Brief in Support 0.8 2/27 - file paper copies for Chambers 0.6 SUMMARY OF LEGAL SERVICES Rate/Hour Hours Dollars Cyrus E. Phillips IV $ $24, GENERAL CORPORATE 66.4 $24, TOTAL FEES FOR LEGAL SERVICES $24, COSTS AND DISBURSEMENTS 2/5 - FedEx Office printing and binding of courtesy copies for Chambers $ /11 - FedEx Office printing and binding of courtesy copies for Chambers $ /18 - FedEx Overnight deliveries (2/5 and 2/11 to Chambers $ /25 - FedEx Office printing and binding of courtesy copies for Chambers $ /27 - FedEx Office printing and binding of courtesy copies for Chambers $

22 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 22 of 27 3/3 - FedEx Overnight deliveries (2/25, 2/27 to Chambers $ TOTAL COSTS AND DISBURSEMENTS $ TOTAL FEES FOR LEGAL SERVICES $25, PAST DUE SECOND REQUEST $27, TOTAL DUE THIS STATEMENT $52,

23 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 23 of 27 ALBO & OBLON, L.L.P. ATTORNEYS AND COUNSELORS AT LAW COURTHOUSE PLAZA 2200 CLARENDON BOULEVARD, SUITE 1201 ARLINGTON, VIRGINIA TELEPHONE: FACSIMILE: ELECTRONIC MAIL: TAXPAYER IDENTIFICATION NUMBER April 1 st, 2014 Paul Milo President Hyperion, Inc International Drive, Suite 660 McLean, Virginia INVOICE LEGAL SERVICES FOR THE PERIOD MARCH 1 st, 2014 THROUGH MARCH 31 st, 2014 Matter Fees Disbursements GENERAL CORPORATE $4, TOTALS: $ 4, TOTAL FEES FOR LEGAL SERVICES $ 4, PAST DUE $37, TOTAL DUE THIS STATEMENT $41,639.63

24 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 24 of 27 BILLING STATEMENT MARCH 1 st, 2014 MARCH 31 st, 2014 LEGAL SERVICES DATE DESCRIPTION HOURS GENERAL CORPORATE 3/11 - Lexis/Nexis online legal research; prepare Oral Argument notes; 3/12 - travel to the National Courts Building and return; Oral Argument before Judge Charles Lettow SUMMARY OF LEGAL SERVICES Rate/Hour Hours Dollars Cyrus E. Phillips IV $ $4, GENERAL CORPORATE 11.1 $4, TOTAL FEES FOR LEGAL SERVICES $ 4, PAYMENT $15, PAST DUE $52, TOTAL DUE THIS STATEMENT $41,

25 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 25 of 27 ALBO & OBLON, L.L.P. ATTORNEYS AND COUNSELORS AT LAW COURTHOUSE PLAZA 2200 CLARENDON BOULEVARD, SUITE 1201 ARLINGTON, VIRGINIA TELEPHONE: FACSIMILE: ELECTRONIC MAIL: TAXPAYER IDENTIFICATION NUMBER May 5 th, 2014 Paul Milo President Hyperion, Inc International Drive, Suite 660 McLean, Virginia INVOICE LEGAL SERVICES FOR THE PERIOD APRIL 1 st, 2014 THROUGH APRIL 30 th, 2014 Matter Fees Disbursements GENERAL CORPORATE $3, $21.63 TOTALS: $ 3, TOTAL FEES FOR LEGAL SERVICES $ 3, PAST DUE $41, TOTAL DUE THIS STATEMENT $44,811.26

26 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 26 of 27 BILLING STATEMENT APRIL 1 st, 2014 APRIL 30 th, 2014 LEGAL SERVICES DATE DESCRIPTION HOURS GENERAL CORPORATE 4/10 - review sealed Opinion and Order; draft and dispatch electronic message to Paul Milo, Tom Bryan, Richard Lee, Bill Schlichter announcing result; complete and file proposed redactions for sealed Opinion and Order; serve DoJ 3.3 4/17 - review Army Motion to Suppress Opinion, proposed redactions; Lexis/Nexis online legal research; travel to National Courts Building and return; oral argument on Army Motion, coordinate redactions 3.8 SUMMARY OF LEGAL SERVICES Rate/Hour Hours Dollars Cyrus E. Phillips IV $ $3, GENERAL CORPORATE 8.4 $3, TOTAL FEES FOR LEGAL SERVICES $ 3, COSTS AND DISBURSEMENTS 4/15 - FedEx Overnight to Chambers (3/31 $ TOTAL COSTS AND DISBURSEMENTS $

27 Case 1:13-cv CFL Document 39 Filed 06/17/14 Page 27 of 27 PAST DUE $41, TOTAL DUE THIS STATEMENT $44,