Alderman Building Co., Inc. ( 2022 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Application Under the Equal Access )
to Justice Act of -- )
)
Alderman Building Co., Inc. ) ASBCA No. 58082-EAJA
)
Under Contract No. N40085-09-D-5321 )
APPEARANCE FOR THE APPLICANT: Marilyn H. David, Esq.
D’Iberville, MS
APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq.
Navy Chief Trial Attorney
Russell Shultis, Esq.
Genifer M. Tarkowski, Esq.
Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE SHACKLEFORD
ON APPLICANT’S EQUAL ACCESS TO JUSTICE ACT APPLICATION 1
Applicant, Alderman Building Co., Inc. (Alderman), submitted an Application for
Award of Attorneys’ Fees and Other Fees & Expenses under the Equal Access to Justice
Act (EAJA), 5 U.S.C. § 504, as amended. The underlying appeal arose from a sponsored
subcontractor claim seeking unabsorbed home office overhead during government-caused
delays. See Alderman Bldg. Co., ASBCA No. 58082, 20-1 BCA ¶ 37,613. We assume
familiarity with that decision. We find that Alderman is an eligible, prevailing party, and
that the government’s position was not substantially justified. Accordingly, we grant
Alderman’s application, but reduce the requested recovery amount.
BACKGROUND
The underlying appeal involved a March 27, 2009, task order for supplies or
services under Contract No. N40085-09-D-5321 awarded to Alderman for renovations of
the interior, repairs to building systems, and incidental work, on building M403 at Marine
Corps Base Camp Lejeune, North Carolina. Id. at 182,566. Alderman entered into a
subcontract with Big John’s Electric Co. Inc. (Big John’s), for labor, equipment,
materials, and supplies for specified portions of the interior repairs to the building. Id.While the solicitation provided that the contract start date would be 10 days after
award, we found that contract performance was characterized by repeated
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Judge Alexander Younger, who authored the underlying decision on entitlement and
quantum, has retired.
government-caused delays that aggregated to 263 days and pushed the start work date
into February 2010. Id.By letter dated August 18, 2011, Alderman submitted a pass-through claim for
$20,518, on behalf of Big John’s, for Eichleay damages. Id. at 182,568. While the
appeal was pending, Alderman’s proffered expert calculated that the correct amount of
the claim should be $56,548. Id. The contracting officer (CO) denied the claim in its
entirety. Id.Our May 21, 2020, decision on the merits, found that Alderman was entitled to
Eichleay damages. Id. at 182,574-76. While we found that the Navy did not explicitly
require Alderman or Big John’s to place their workforces on standby, Alderman
demonstrated by indirect evidence that it had to place its forces on standby. Id.
at 182,574-75. We also found that while Big John’s made efforts to obtain replacement
work, it was unable to obtain sufficient replacement work to compensate for the
disruptive effect of the multiple delays. Id. 182,575-76. Accordingly, we found that
Alderman was entitled to recover $34,795 for Eichleay damages. Id. at 182,576.
As a separate category of relief, we denied Alderman’s contention, independent of
the Eichleay formula, that it was entitled to $21,753 in direct costs of standby. Id.DISCUSSION
To recover under the EAJA, an applicant must timely file its application, establish
it is an eligible party as defined by the EAJA, and prove that it was a prevailing party in
the underlying action. Asia Commerce Network, ASBCA No. 58623, 19-1 BCA ¶ 37,352at 181,621 (citing Rex Sys., Inc., ASBCA No. 52247, 02-1 BCA ¶ 31,760 at 156,854). An
application may be denied if the government’s position was substantially justified or when
special circumstances make an award unjust. Asia Commerce Network, 19-1 BCA
¶ 37,352 at 181,621; see also 5 U.S.C. § 504(a)(1). As a partial waiver of sovereign
immunity, the EAJA is to be strictly construed in favor of the United States. Ardestani v.
I.N.S., 502 U.S. 129,137 (1991).
I. Timely Application
An application under the EAJA must be filed within 30 days after the Board’s
disposition of the appeal has become final. 5 U.S.C. § 504(a)(2). The Board issued its
decision on May 21, 2020. Read receipt email messages confirm that both Alderman and
the Navy received the Board’s decision on May 21, 2020. The Board received Alderman’s
EAJA application on June 22, 2020. Because this was within the 120 days permitted for an
appeal of the decision plus the 30 days permitted for filing under the EAJA, we consider
the application timely. Benjamin S. Notkin & Assocs., ASBCA No. 29336, 87-1 BCA
¶ 19,483 at 98,455.
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II. Prevailing Party
The EAJA application must show that the applicant was the prevailing party.
5 U.S.C. § 504(a)(2). Alderman was the prevailing party in the underlying appeal. The
Board sustained the appeal and determined that Alderman was entitled to recover
$34,795. Alderman, 20-1 BCA ¶ 37,613 at 182,576. The government’s response to the
EAJA application also concedes that Alderman was the prevailing party (gov’t resp. at 2).
III. Eligibility
The EAJA application must also show that the applicant is eligible to receive an
award. 5 U.S.C. § 504(a)(2). “A party is generally eligible for consideration of an award
of costs under the EAJA if it is an entity having a net worth of no more than $7,000,000
and no more than 500 employees at the time the adversary adjudication was initiated.”
K&K Indus., Inc., ASBCA No. 61189, 19-1 BCA ¶ 37,353 at 181,627; see also 5 U.S.C.
§ 504(b)(1)(B)(ii). “Net worth is determined by subtracting an applicant’s total liabilities
from its total assets.” Kostmayer Constr., LLC, ASBCA No. 55053, 09-2 BCA ¶ 34,302at 169,440 (citing Broaddus v. United States Army Corps of Engineers, 380 F.3d 162,
167 (4th Cir. 2004)).
Alderman initiated the underlying appeal in April 2012. In order to demonstrate
its net worth at that time, Alderman submitted copies of its Form 1120-S, U.S. Income
Tax Return for an S Corporation, from 2011 and 2012 with its EAJA application (app.
br., exs. 4-5). The Schedule L, Balance Sheets, on these returns show Alderman’s net
worth is below the statutory threshold on each return (id. at 44, 48). Alderman also
submitted an affidavit from its President in 2012 attesting that its maximum number of
employees never exceeded 50 employees (app. br., ex. 3). 2 There is no apparent
objection from the government regarding Alderman’s exhibits. After review of the
documents, we are satisfied that Alderman is an eligible party.
IV. Substantial Justification
An application may be denied if the government’s position was substantially
justified or when special circumstances make an award unjust. Asia Commerce Network,
19-1 BCA ¶ 37,352 at 181,621; 5 U.S.C. § 504(a)(1). “The government bears the burden
to show that its position was substantially justified.” K&K Indus., Inc., 19-1 BCA ¶ 37,353at 181,628 (citing Amaratek, ASBCA Nos. 59149, 59395, 15-1 BCA ¶ 35,866 at 175,348).
In order to prevail, the government must “demonstrate that ‘a reasonable person could
think [the government’s position is] correct, that is [that] it has a reasonable basis in law
and fact.’” Pro-Built Constr. Firm, ASBCA No. 59278, 18-1 BCA ¶ 36,975 at 180,116
2
Alderman also submitted an affidavit, tax returns, and payroll history summary
pertaining to its subcontractor demonstrating that Big John’s also qualifies as an
eligible party (app. br., exs. 6-9).
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(quoting Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988)). “Substantial justification
applies to the entirety of the litigation position and not just the posture on individual
issues.” K&K Indus., 19-1 BCA ¶ 37,353 at 181,628. “[T]he government position is more
likely to be substantially justified when greater ‘legal uncertainty’ is presented.” SST
(Supply & Serv. Team) GmbH, ASBCA No 59630, 18-1 BCA ¶ 36,932 at 179,932 (citing
Rex Sys., Inc., ASBCA No. 52247, 02-1 BCA ¶ 31,760 at 156,855).
The Navy maintains it was substantially justified in litigating the claim for
Eichleay damages. It raises three bases for why it was substantially justified. First, the
Navy argues that it reasonably believed Alderman and Big John’s could not prove their
workforces were on standby (gov’t resp. at 3-4). Second, the Navy argues that it had no
other choice than to litigate the claim because Alderman and Big John’s failed to provide
adequate documentation supporting the alleged costs (gov’t resp. at 4-5). Lastly, the
Navy notes that Alderman rejected a reasonable settlement offer (gov’t resp. at 5-6).
1. Standby
The Navy notes that it “never explicitly directed Alderman or Big John’s to be on
standby, prior to contract performance” (gov’t resp. at 3), which we agreed with in our
2020 decision. Alderman, 20-1 BCA ¶ 37,613 at 182,568 (“[T]he Navy did not explicitly
require Alderman or Big John’s to place their workforces on standby.”). “In order to
recover unabsorbed overhead costs using the Eichleay formula, Eichleay Corp., ASBCA
No. 5183, 60-2 BCA ¶ 2688, aff’d on reconsid., 61-1 BCA ¶ 15,117, [Alderman] had to
show that it was required unreasonably to stand-by during the period of the delay without
staff reduction and that it was impractical to take on additional jobs during this period.”
Alvarez & Assocs. Constr. Co., ASBCA No. 50185, 97-2 BCA ¶ 29,320 at 145,789
(citing Daly Constr. Inc. v. Garrett, 5 F.3d 520 at 522 (Fed. Cir. 1993)).
We previously addressed the question of standby in our December 9, 2014
decision on the parties’ cross-motions for summary judgment. See Alderman Bldg. Co.,
ASBCA No. 58082, 15-1 BCA ¶ 35,841 at 175,273-74. In that decision we found that
the evidence “show[ed] that [Alderman] had employees on standby during the delay
period, but [left] open the question of whether they were ‘required to be ready to resume
work’ by the Navy.” Id. at 175,274 (citing P.J. Dick Inc. v. Principi, 324 F.3d 1364,
1371 (Fed. Cir. 2003). Thus, we found that there was a triable issue regarding standby.
Alderman, 15-1 BCA ¶ 35,841 at 175,274.
While we agreed with the Navy that it did not explicitly order Alderman or Big John’s
to place their workforces on standby (Alderman, 20-1 BCA ¶ 37,613 at 182,568), Alderman
asserted it was entitled to Eichleay damages based on indirect evidence of standby (app.
reply br. at 5-6). In cases where the CO does not issue an explicit order to be on standby, the
contractor must prove standby by indirect evidence. P.J. Dick, 324 F.3d at 1371.
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On the question of indirect evidence, we found “that contract performance was
characterized by repeated government-caused delays that aggregated to 263 days . . . .”
Alderman, 20-1 BCA ¶ 37,613 at 182,566. We found it was “the Navy’s practice to
afford Alderman and Big John’s little advanced notification of the delays in the project’s
start dates.” Id. at 182,568. Ultimately, we concluded it was necessary and reasonable
for Alderman to keep its workforce on standby due to the “dwindling period of
performance with no time extension” coupled with the threat of liquidated damages. Id.
at 182,575.
The Navy’s response to the EAJA application did not discuss the indirect evidence
of standby. The fact that the Board agreed with the Navy on the question of whether
there was an explicit order to be on standby, does not equate to the Navy’s overall
litigation position being substantially justified. “Substantial justification applies to the
entirety of the litigation position and not just the posture on individual issues.” K&K
Indus., 19-1 BCA ¶ 37,353 at 181,628. This is particularly applicable here, where the
established law allowed the contractor to prove standby without an explicit order;
specifically, by indirect evidence.
2. Documentation Supporting the Alleged Costs
The Navy argues that it was substantially justified because Alderman and Big John’s
failed to provide adequate documentation supporting the alleged costs incurred (gov’t resp.
at 4-5). The Navy maintains that this is demonstrated by the multiple supplements that
Alderman’s proffered expert made to his report (id. at 4). We are not persuaded by the
Navy’s argument. “The government bears the burden to show that its position was
substantially justified.” K&K Indus., Inc., 19-1 BCA ¶ 37,353 at 181,628. The fact that
Alderman’s expert provided multiple supplements to his report does not in itself
demonstrate that Alderman failed to provide documentation supporting the alleged costs.
The Navy has failed to meet its burden in demonstrating how the documentation was
insufficient.
3. Navy’s Settlement Offer
Finally, the Navy maintains that Alderman’s alleged rejection of a reasonable
settlement offer in November 2015 left the Navy with no other choice than to continue
litigating the appeal (gov’t resp. at 5-6). The Navy notes that its settlement offer was
close to Alderman’s ultimate recovery amount (id. at 5). The rejection of a settlement
offer may be “relevant to the reasonableness of the EAJA fees and costs that are to be
awarded.” C.H. Hyperbarics, Inc., on behalf of William J. Miller, Jr., Trustee, ASBCA
No. 49375 et al., 05-2 BCA ¶ 32,989 at 163,494. We address the relevance of the
settlement negotiations in greater detail below in the quantum section of this decision.
The Navy, however, has raised this issue as a factor in its substantial justification
argument, which we do not find relevant here.
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4. Substantial Justification Conclusion
Based upon our review of the record, the Navy has not persuaded us that its
position was substantially justified.
V. Special Circumstances
The government has not contended that there are any special circumstances that
would make an award of fees and costs unjust. 5 U.S.C. § 504(a)(1). We conclude that
no special circumstances exist to preclude an EAJA award.
VI. Quantum
Alderman initially sought an enhanced attorneys’ fees rate of $200 per hour (app.
br. at 7). In response, the Navy properly noted that the Board has long held that it does
not have discretion to award attorneys’ fees in excess of the EAJA prescribed rate of
$125 per hour (gov’t resp. at 7-8). See also Optimum Servs., Inc., ASBCA Nos. 58755,
59952, 17-1 BCA ¶ 36,816 at 179,431-32. Alderman’s reply brief revised its requested
EAJA award amount downward to account for the $125 per hour rate (app. reply br. at 28).
To the extent that this is still an open issue, we find that Alderman’s attorneys’ fees rate is
limited to $125 per hour.
The parties also agree that an EAJA award should not include any amounts for
time spent on the denied direct costs of standby claim (app. br. at 6; gov’t resp. at 10;
app. reply br. at 28). See also C.H. Hyperbarics, 05-2 BCA ¶ 32,989 at 163,491 (“Where
separate claims are involved they should be treated as separate lawsuits, and no fee
should be awarded for services on unsuccessful claims.”). In the underlying appeal, we
denied the direct costs of standby claim and deducted the claimed amount from the
overall recoverable amount. Alderman, 20-1 BCA ¶ 37,613 at 182,576. Accordingly,
Alderman’s EAJA award will not include any amounts for time spent on the denied direct
costs of standby claim.
We now turn to the remaining areas of disagreement between the parties. The
Navy’s primary argument is that the Board should limit Alderman’s EAJA award amount to
its attorneys’ fees and costs from the issuance of the contracting officer’s final decision
(COFD) on January 19, 2012, 3 to the rejection of the Navy’s $34,000 settlement offer in
November 2015 (gov’t resp. at 5-7). The Navy also notes that the parties’ decision not to
3
We agree with the Navy that the date of the COFD is the beginning of the “adversary
adjudication” for purposes of the EAJA (gov’t resp. at 9). See also Levernier
Const., Inv. v. United States, 947 F.2d 497, 500 (Fed. Cir. 1991). Alderman’s
requested attorneys’ fees and costs include amounts prior to January 19, 2012,
but these amounts are relatively minor in comparison to its overall EAJA award
request.
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move forward with a planned alternative dispute resolution (ADR) session in February 2016
was another lost opportunity to resolve the appeal and should be considered in determining
a reasonable EAJA award (gov’t resp. at 8-9).
Conversely, Alderman’s primary argument is that the EAJA award amount should
not be curtailed by the settlement negotiations or decision to call off the ADR session
(app. reply br. at 12-27). Alderman asserts that while the Board awarded it $34,795 for
its Eichleay damages claim, this amounts to roughly $43,597.65 when interest is included
(id. at 13). Next, Alderman argues that the Navy’s $34,000 settlement offer “was not
significant, because the $34,000 lump sum had to be apportioned among extended
overhead, direct costs, interest, fees, and costs” (id. at 14). Alderman contends that:
[T]he Navy’s offer amounted to at most about $17,000 for
extended overhead and direct costs. Assuming, arguendo,
that the $34,000.00 lump sum was to be divided equally
between the extended overhead and direct costs claims on the
one hand and interest, fees, and costs on the other, it would
mean that 50% of the lump-sum, or $17,000.00, was the part
of the lump sum offered for the extended overhead and direct
costs claims.
(id. at 15). Further, Alderman asserts that it never rejected the Navy’s $34,000 settlement
offer. Rather, Alderman maintains the offer remained on the table as the parties began to
consider ADR. (Id. at 16) Leading up to the ADR session, Alderman argues that the
Navy engaged in bad faith negotiation tactics by “re-litigating” issues and lowering its
offer in the Navy’s mediation statement (id. at 17-18). Alderman notes that the parties
mutually agreed to call off the ADR session (id. at 19). Finally, Alderman asserts that its
fees were reasonable and proportional to the amount recovered (id. at 19-27).
The parties both cite States Roofing Corp., ASBCA No. 55505, 11-1 BCA ¶ 34,668as instructive in determining the reasonableness of an EAJA award amount (gov’t resp.
at 9; app. reply br. at 12-13). In States Roofing, the contractor “incurred $211,191 in fees
and costs to obtain $352,976 (largely exclusive of CDA interest) just $2,976 more than the
$350,000 settlement offered by the [government].” 11-1 BCA ¶ 34,668 at 170,781. The
Board found this amount to be “grossly disproportionate” and adopted a reasonableness
approach to determine the final EAJA award amount. Id. We believe a similar approach
is appropriate here.
The parties agree that on November 4, 2015, the Navy made a $34,000 lump sum
settlement offer (gov’t resp. at 5; app. reply br. at 16, ex. 17). The Navy maintains that
Alderman rejected the settlement offer (gov’t resp. at 5), while Alderman asserts that it
never rejected the offer (app. reply br. at 16). However, it is clear that on November 9,
2015, the parties notified that Board that they agreed to pursue ADR. The Board scheduled
the ADR for February 17-18, 2016. It is also clear that in anticipation of the ADR, on
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February 3, 2016, the Navy submitted its mediation statement, which included a lump sum
settlement offer of $20,421.60 (gov’t resp. at 8-9; app. reply br. at 17-18). Thereafter, on
February 9, 2016, the Board held a conference call during which the parties requested to
cancel the ADR session.
Similar to States Roofing, under the circumstances, we find it useful to look at
Alderman’s attorneys’ fees and costs incurred before and after cancellation of the ADR
session. Alderman provided a breakdown of these costs in its rebuttal:
Before Cancellation of the ADR Session
Marilyn H. David, attorney’s fees $37,968.75
Russell S. Gill, attorney’s fees + $3,125.00
Legal expenses and costs + $11,282.47
Deducting fees and costs for Direct Costs Claim – $889.50
Total: = $51,486.72
(App. reply br. at 26)
After Cancellation of the ADR Session
Marilyn H. David, attorney’s fees $25,843.75
Legal expenses and costs + $25,318.09
Deducting fees and costs for Direct Costs Claim – $2,135.50
Total: = $49,026.34
(Id. at 27)
Alderman’s revised requested EAJA award combines its attorneys’ fees and costs
before and after the cancelled ADR session, totaling $100,513.06 ($51,486.72 +
$49,026.34 = $100,513.06). Alderman requests an additional $9,741.93 for preparation
of its EAJA application and rebuttal. Alderman’s revised total is $110,254.99 (id. at 34).
Conversely, the Navy proposes that a reasonable EAJA award would be $42,233.78 4
(gov’t resp. at 13).
After cancellation of the ADR session, Alderman incurred an additional
$49,026.34 in attorneys’ fees and costs to obtain $34,795 (excluding interest) for its
Eichleay damages claim. This was just $795 more than the government’s $34,000
settlement offer. It was also only $14,373.40 more than the government’s proposed lump
sum payment in its mediation statement. Compared with either the Navy’s settlement
4
As discussed above, the Navy’s proposed EAJA award limits recovery “from the
issuance of the COFD on 19 January 2012 to the rejection of the Navy’s
reasonable settlement offer in November 2015” (gov’t resp. at 13).
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offer or the amount proposed in the mediation statement, we find Alderman’s attorneys’
fees and costs to be disproportionate to its ultimate recovery amount. Accordingly, we
find it reasonable to disregard those attorneys’ fee and costs incurred after cancellation of
the ADR session.
We have also considered the nature and relative complexity of the Eichleay
damages claim, the relationship between it and the denied direct costs of standby claim,
and degree of success Alderman obtained (app. reply br. at 12-13). See also States
Roofing, 11-1 BCA ¶ 34,668 at 178,781.
Consistent with the aforementioned discussion, we believe a reasonable EAJA
award includes only those attorneys’ fees and costs incurred before the cancelled ADR
session and those associated with preparing the EAJA application. We disregard those
attorneys’ fees and costs incurred prior to issuance of the COFD and those relating to the
denied direct costs of standby claim. Alderman listed its attorneys’ fees and costs before
cancellation of the ADR session as $51,486.72. Alderman already deducted its fees and
costs related to the denied direct costs of standby claim. (App. reply br. at 26). However,
this amount does include some attorneys’ fees and costs incurred prior to issuance of the
COFD. We disregard the 25 hours ($3,125) attributed to Russell S. Gill, PLLC from
April 27, 2011 to July 14, 2011 (see app. br., ex. 11 at 63-65). We also deduct one hour
($125) billed by attorney Marilyn H. David on January 8, 2012 (see app. br., ex. 12
at 70). Finally, we deduct $302.59 for legal expenses and costs incurred on July 20, 2011
(see app. br., ex. 11 at 63). After adding in the $9,741.93 for preparation of the EAJA
application (see app. reply br. at 30-31), we conclude that an award of $57,676.06 is
reasonable as summarized in the table below:
EAJA AWARD
Add Attorneys’ fees and costs before cancellation of ADR $51,486.72
Deduct 25 hours attributed to Russell Gill from April 27 to July 14, 2011 – $3,125.00
Deduct one hour billed by Marilyn David on January 8, 2012 – $125.00
Deduct legal expenses and costs incurred on July 20, 2011 – $302.59
Add costs for preparation of the EAJA application + $9,741.93
Total: = $57,676.06
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CONCLUSION
Alderman is awarded $57,676.06 in recoverable EAJA fees and costs.
Dated: April 28, 2022
RICHARD SHACKLEFORD
Administrative Judge
Vice Chairman
Armed Services Board
of Contract Appeals
I concur I concur
J. REID PROUTY JAMES SWEET
Administrative Judge Administrative Judge
Acting Chairman Armed Services Board
Armed Services Board of Contract Appeals
of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals on an application for fees and other expenses
incurred in connection with ASBCA No. 58082-EAJA, Appeal of Alderman Building
Co., Inc., rendered in conformance with 5 U.S.C. § 504.
Dated: April 28, 2022
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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