GSI & Whitesell-Green, JV ( 2020 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of-- )
)
GSI & Whitesell-Green, JV ) ASBCA No. 62216)
Under Contract No. FA3022-15-C-0001 )
APPEARANCE FOR THE APPELLANT: Mr. Josh Owens
President
APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq.
Air Force Deputy Chief Trial Attorney
Lt Col Byron G. Shibata, USAF
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE O'CONNELL
Per the request of appellant, the Board docketed this as a quantum appeal relating
to our decision on entitlement under Board Rule 12.3 in GSJ & Whitesell-Green, J. V,
ASBCA No. 61816, 19-1BCA137,289 (GS! I). While the parties were successful in
negotiating the costs of the underlying work at issue, they have been unable to resolve
what appellant refers to as "expenses related to the preparation of the [c]laim" (Bp. corr.
ltr. 41 U.S.C. § 7109(a)(l). The Air Force
requested that the Board dismiss the appeal with prejudice. On that same date, appellant
wrote to the Board acknowledging issuance of the modification but stating that it seeks
"additional expenses for the work invested toward the preparation and execution of the
Contractor's[] case ... " (Bd. corr. ltr. dtd. September 24, 2019).
By letter dated October 4, 2019, the Board's Recorder notified the parties that
after the Board issued GS! I, the Board removed the appeal from the active docket and
intended to take no further action on it. The Recorder also stated that the Board would
docket a quantum appeal at appellant's request if the parties could not resolve quantum.
On October 11, 2019, appellant requested that the Board docket a quantum appeal.
The Board docketed the quantum appeal on October 15, 2019. On that same date,
the Board issued an order on proof of costs.
On November 11, 2019, appellant filed its statement of costs. Citing the Equal
Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) and Addendum I to the Board's
Rules, Equal Access to Justice Act Procedures, appellant contended that it is entitled to
the costs for the time its employees worked on No. 61816. It reasoned that if an attorney
performed this work it would be compensable and it would be reasonable to compensate
a contractor for the same work performed by an attorney, particularly when the contractor
rates are much lower than those charged by attorneys. Attached to the statement,
appellant submitted a spreadsheet reflecting 115 .25 hours of administrative time billed at
$36 per hour, plus labor burden of 36%, totaling $5,643. On top of this it adds overhead
and profit at 10% each, bond at 1%, and a Mississippi construction tax at 3 .5%, for a total
of $7,137. Appellant identifies the start date for this work as September 25, 2018, the
date on which it filed No. 61816. Appellant does not identify the employees who
performed the work but the Board observes that Josh Owens (who has identified himself
as the president or managing member) signed the notice of appeal, the complaint,
supplemental Rule 4 file, and statement of costs while Nathan Green, Project Manager,
signed its merits briefs.
DECISION
The applicable portion of the EAJA statute provides:
An agency that conducts an adversary adjudication shall
award, to a prevailing party ... fees and other expenses
incurred by that party . . . . A party seeking an award of fees
and other expenses shall ... submit to the agency an
application which shows ... the amount sought, including an
itemized statement from any attorney, agent, or expert
witness ....
5 U.S.C. § 504(a). The statute defines "fees and other expenses" to include:
[T]he reasonable expenses of expert witnesses, the reasonable
cost of any study, analysis, engineering report, test, or project
which is found by the agency to be necessary for the
preparation of the party's case, and reasonable attorney or
agent fees ....
5 u.s.c. § 504(b ).
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The Federal Circuit considered a matter comparable to this appeal in Fanning,
Phillips, Molnar v. West, 160 F.3d 717 (Fed. Cir. 1998). In Fanning, the Department of
Veterans Affairs Board of Contract Appeals held that a prevailing appellant was entitled
to attorney fees or fees paid to outside consultants or expert witnesses. On appeal, the
Federal Circuit considered whether the statute also allowed for reimbursement of
non-lawyer employees or principals of the contractor as "agents" of the contractor. The
Court of Appeals held that it did not, explaining, among other things, that the use of the
word "fees" in the statute suggested that it was referring to fees by those who supply the
types of specialized services necessary to prosecute a claim, not the employees or
principals of a contractor. Id. at 721.
The Court found additional support in the legislative history of the EAJA. The
original bill would have included compensation for a party's personal absence from
business at an hourly rate but the language was dropped from the enacted statute.
Fanning, 160 F.3d at 722 (citing H.R. Rep. No. 96-1005, pt. 1, at 2 (1980)). The Court
held that the "deletion indicates that compensable 'fees and expenses' were not intended
to include lost opportunity costs of employee or principal time associated with
prosecuting a claim." Id. The Court held that because none of the employees or the
principal was an attorney, a specialized non-attorney practitioner, or an outside specialist
retained to assist with the litigation, the costs were not recoverable under the EAJA. Id.Finally, the Court held that because the purpose of the statute was not to compensate for a
personal absence from a business, none of the time spent by the employee or principal
could be compensated as "other expenses" or as time spent by an "expert witness." Id.·GSI & Whitesell-Green does not identify any of the costs it seeks as time by an
attorney, a specialized non-attorney practitioner, or an outside specialist or expert
witness. Rather, the time appears to be that spent by its president, Mr. Owens, or
Mr. Green, the project manager. Accordingly, these costs are not recoverable under the
EAJA.
CONCLUSION
The appeal is denied.
Dated: January 30, 2020
~)}1~I'{). e) '~-U
MICHAEL N. O'CONNELL
Administrative Judge
Armed Services Board
of Contract Appeals
(Signatures continued)
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I concur
Administrative Judge
Vice Chairman
Armed Services Board
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 in ASBCA No. 62216, Appeal of GSI &
Whitesell-Green, JV, rendered in conformance with the Board's Charter.
Dated:
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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