If my small business prevails in its lawsuit against the federal government, will I recover any court costs or attorneys fees?
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Most U.S. courts do not allow for the recovery of legal fees for prevailing parties except for in exceptional situations – a lawsuit against the government is one such exception. Depending on the type of lawsuit and the exact sense in which you “prevail,” recovering your court costs and attorney fees may be a distinct possibility.
Prevailing in Bid Protests
If the government contract at issue in your lawsuit was a procurement contract, then it is likely that your lawsuit takes the form of a bid protest. Bid protests are legal actions that can be taken by interested parties against the government’s allocation of a procurement contract. Bid protests are only sustained by a court if there was impropriety in the decision-making process, e.g. – a failure to follow one of the many rules and regulations that guide and limit the government procurement process.
If you are an interested party filing a bid protest, then having that protest sustained will often result in some form of restitution if that is appropriate to the circumstances of the case. For instance, if you should have received the bid, or have suffered other losses due to this process, a court might be inclined to provide monetary compensation commensurate with your losses. Sometimes this will factor in attorney’s fees and other court costs.
Government Accountability Office and the Court of Federal Claims
If the Government Accountability Office (GAO) determines that a solicitation, proposed award, or award does not comply with a statute or a regulation, it may recommend that the contracting agency pay you the costs of (1) filing and pursuing the protest, including attorneys' fees and consultant and expert witness fees; and (2) bid and proposal preparation.
At both the Court of Federal Claims and U.S. District Courts, the reimbursement of attorneys' fees and consultant and expert witness fees are not available unless you are a small business under the Equal Access to Justice Act, 28 U.S.C. section 2412. Both courts, in addition to granting declaratory and injunctive relief, may grant recovery of bid preparation and proposal costs. However, at the District Courts, such recovery is limited to $10,000.
If your bid protest was sustained by the GAO but the government agency in question chooses not to comply, then you may have to appeal your case in court in order to prevail over the government (and thus have hope of recovering court costs). If you are in such a situation, and have resisted obtaining legal representation up to this point, then now is the time to reconsider. You are enormously more likely to prevail in court if you have competent legal representation. Further, it is likely that only a competent attorney versed in government law issues will be able to navigate the Court of Federal Claims and other courts effectively enough to recover all the value (including court costs) that you deserve.