TranLogistics LLC ( 2019 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Application Under the Equal Access
to Justice Act of--
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TranLogistics LLC ) ASBCA 61574
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Under Contract No. M27lOO-l7-P-6012 )
APPEARANCE FOR THE APPELLANT: Hopewell H. Darneille lIl. Esq.
Jackson Kelly PLLC
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq.
Navy Chief Trial Attorney
Maj John E. Buis, USMC
Associate Counsel
Eastern Area Counsel Office
Camp Lejeune, NC '
OPINION BY ADMINISTRATIVE JUDGE KINNER
ON APPELLANT’S APPLICATION UNDER THE
EQUAL ACCESS TO JUSTICE ACT
TranLogistics LLC timely applied for reimbursement of legal fees and the CPA
expense it incurred in prosecution of its Board Rule 12.2 appeal pursuant to the Equal
Access to Justice Act (EAJA) and the Rules of this Board (5 U.S.C. § 504; ASBCA
Rules Addendum I). The Contract Disputes Act, 41 U.S.C. § 7106(b)(4)-(5), as
implemented by Board Rule 12.2, provides a decision under 12.2 shall have no value as
precedent, and in the absence of fraud, shall be final and conclusive and may not be
appealed or set aside. The government has not responded to the application, In support
of its application, TranLogistics LLC has submitted declarations by its president and its
CPA to demonstrate that it had a net worth of less than $7 million and less than 500
employees at the time of its appeal (5 U.S.C. § 504(a)(4); Addendum I(e); Tran decl.
1] 17, ex. 7). lt is therefore an eligible party to recover fees pursuant to EAJA.
Kostmayer Construction, LLC, ASBCA No. 55053, 09-2 BCA 1] 34,302 at 169,443.
Also as required by EAJA, TranLogistics LLC is the prevailing party in this appeal. On
reconsideration, TranLogistics LLC Was awarded the full amount of its appeal. States
Roofing Corporation, ASBCA No. 55505, ll-l BCA 1l 34,668 at 170,777.
TranLogistics LLC must also establish that the position of the government was
not substantially justified (Addendum I(d), (m)(l)). My initial decision found that the
government participated in formulating the custom documents necessary for crossing
borders to complete the transportation required by the contract. The government
denied TranLogistics LLC’s claim for the additional costs it incurred while the
government delayed delivery of critical documentation and precluded the company
from completing performance The govemment’s defense was not substantially
justified within the meaning of EAJA. States Roofl``ng, ll-l BCA ll 34,668 at 170,778.
TranLogistics LLC has demonstrated that it paid the legal fees for which it
requests reimbursement (Tran decl. ll 14, ex. 5; Addendum I(e)). Its application
requests $7,343 for the fixed fee TranLogistics LLC agreed upon with its counsel (app.
application at lO-l l; Tran decl., ex. 2). That amount reflects legal fees reasonably
incurred prosecuting this appeal (Tran decl., ex. 6; Addendum I(e)).
The amounts incurred for preparation of TranLogistics LLC’s EAJA application
are also recoverable Kostmayer Constructz``on, 09-2 BCA ll 34,302 at 169,445.
TranLogistics LLC seeks its attorney’s $4,987.50 EAJA application preparation fee and
a $500 flat charge for the CPA who prepared the company financial statement (Tran
decl., exs. 6, 8-9). That legal fee is billed at the statutory rate of $125, and supported by
contemporaneous billing details (Tran decl., ll 14, ex. 5). The work product of the CPA
is reflected in his declaration, which explains that TranLogistics LLC does not obtain
annual financial statements (Alonso decl. ll 5). Accordingly, he prepared a compilation
balance sheet as well as additional documentation to support the EAJA application
(Alonso decl. llll 6, 8, ex. l). Based on its application and supporting documentation,
TranLogistics LLC recovers this reasonable fee and expense.
CONCLUSION
TranLogistics LLC is awarded $12,830.50 for reasonable expenses and legal
fees. Appellant elected to have its appeal proceed pursuant to Board Rule 12.2.
Pursuant to that rule, the decision was rendered for the Board by a single
Administrative Judge, as was the decision on its motion for reconsideration, Board
Rule 12.2(c). Pursuant to paragraph (n) of Addendum I to the Board’s Rules, this
decision is rendered by the same Administrative Judge. ld.
Dated: March 25, 2019
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DoNALD E. KINNER
Administrative Judge
Armed Services Board
of Contract Appeals’
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l certify that the foregoing is a true copy ofthe Opinion and Decision ofthe
Armed Services Board of Contract Appeals on an application for fees and other
expenses incurred in connection with ASBCA No. 61574, Appeal of TranLogistics
LLC, rendered in accordance with 5 U.S.C. § 504.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals