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PHOTO DATA, INC. v. SAWYER

February 22, 1982

PHOTO DATA, INC., Plaintiff,
v.
Danford SAWYER, et al., Defendants



The opinion of the court was delivered by: PENN

MEMORANDUM OPINION

This case comes before the Court on plaintiff's Application for Attorneys' Fees pursuant to Section 204(a) of the Equal Access to Justice Act (Act), 28 U.S.C. § 2412. Plaintiff seeks reimbursement from the United States for attorneys' fees and other litigation costs incurred during the period of September 30, 1981 through November 16, 1981, in connection with its Complaint for declaratory and injunctive relief and this application.

 I

 On or about June 23, 1981, plaintiff received an invitation from the Government Printing Office (GPO) to bid for, inter alia, the printing and distribution of the Federal Personnel Manual. The solicitation provided that the contract would be awarded to the lowest responsible bidder, with responsibility determined by a pre-award survey of the applicant's ability to perform the contract.

 Although plaintiff submitted the lowest bid it was not awarded the contract due to a nonresponsibility finding made by the Contracting Officer, William L. Jackson, on September 30, 1981. His reasoning was as follows:

 
This determination was made because of the submission of improperly coded FIDE tapes on the previous 255-S contract and as a result of an unfavorable Pre-Award Survey conducted at your plant on September 22, 1981. *fn1"

 The contract was awarded to the next low bidder.

 Plaintiff filed a written protest of the nonresponsibility determination on October 1, 1981, requesting that performance of the contract be stayed pending a Small Business Administration review of the GPO's finding. Thereafter, on October 2, 1981, plaintiff filed, in this Court, a Complaint for declaratory and injunctive relief, an application for a temporary restraining order, and a motion for preliminary injunction.

 Immediately prior to a hearing on plaintiff's application for a temporary restraining order on October 5, 1981, the parties entered into a stipulation whereby plaintiff would withdraw its motions without prejudice, and defendants would rescind their previous finding, re-evaluate plaintiff's ability to perform the contract, and issue no work order under the award until they completed a new pre-award survey.

 On November 6, 1981, the GPO informed plaintiff that it had been determined responsible. Accordingly, the contract with the second low bidder was cancelled and was then awarded to plaintiff.

 II

 Under the "American Rule" prevailing litigants are not ordinarily entitled to collect attorneys' fees from the loser. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S. Ct. 1612, 1616, 44 L. Ed. 2d 141 (1975). It is also well established that attorneys' fees may not be levied against the United States unless expressly provided for by Congress. Id. at 265-68, 95 S. Ct. at 1626-27; National Ass'n for Advancement of Colored People v. Civiletti, 197 U.S. App. D.C. 259, 261, 609 F.2d 514, 516 (1979), cert. denied 447 U.S. 922, 100 S. Ct. 3012, 65 L. Ed. 2d 1114 (1980).

 In 1980 Congress enacted the Equal Access to Justice Act, Pub.L. No. 96-481, 94 Stat. 2325 (1980). Section 204(a) of the Act amended 28 U.S.C. § 2412 to authorize attorneys' fees against the United States under certain circumstances. First, a court may assess fees and expenses against the government to the same extent that a private party would be liable for the same pursuant to common law or ...


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