Standbuy Distributors, Inc.

ARMED SERVICES BOARD OF CONTRACT APPEALS
Application Under the Equal Access )
to Justice Act of -- )
)
Standbuy Distributors, Inc. ) ASBCA No. 62721-EAJA
)
Under Contract No. SPE7M3-19-P-0080 )
APPEARANCE FOR THE APPELLANT: Dale Gipson, Esq.
Lanier Ford Shaver & Payne P.C.
Huntsville, AL
APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq.
DLA Chief Trial Attorney
Tyson McDonald, Esq.
Mandy Chiles, Esq.
Trial Attorneys
DLA Land and Maritime
Columbus, OH
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON APPELLANT’S
EQUAL ACCESS TO JUSTICE APPLICATION
Appellant, Standbuy Distributors, Inc. (SDI), applies for $21,181.25 in attorneys’
fees in ASBCA No. 62721, pursuant to the Equal Access to Justice Act (EAJA),
5 U.S.C. § 504 (app. at 1). ∗ In Standbuy Distributors, Inc., ASBCA No. 62721,
2021 WL 3235172 (July 12, 2021), we held that the government’s January 24, 2020
revocation of its acceptance of 111 range finders was untimely because it knew, or had
reason to know, as early as July 13, 2016, and no later than November 5, 2018, that SDI
had been providing parts other than those that the government had requested.
Familiarity with that opinion is presumed.
∗
Although in the first paragraph of its EAJA application, Standbuy requests
$20,293.75, in the concluding paragraph of that application and its reply to the
government’s answer to the application, Standbuy requests $21,181.25 (app.
at 1, 4; reply at 3). In its response to the application, the government references
only the $21,181.25 amount (answer at 4). We understand Standbuy to be
requesting $21,181.25. Standbuy also requests an additional “allowable amount
of fees incurred in connection with this application” (app. at 4; reply at 3),
which request, because that additional amount is unspecified, we disregard.
EAJA provides that a business with a net worth less than $7,000,000 that
prevails before the Board shall be awarded the fees and other expenses that it incurred,
unless the position of the government was substantially justified or other circumstances
make such an award unjust. Buck Town Contractors & Co., ASBCA No. 60939,
20-1 BCA ¶ 37,705 at 183,048. The government disputes only whether its position was
substantially justified (gov’t resp. at 1). To prevail in its substantial justification
defense, the government must demonstrate that a reasonable person could think the
government’s position is correct; that is, that the position has a reasonable basis in law
and fact. Buck Town, 20-1 BCA ¶ 37,705 at 183,048. Substantial justification is
determined on the basis of the entire record before the Board, and the entirety of the
government’s conduct. Id.Taking into account the entire record before the Board, and the entirety of the
government’s conduct, the government fails to satisfy that burden. Although no precise
formula exists to determine the reasonableness of the delay in revoking acceptance of
accepted items, and although the determination must be made on a case-by-case basis,
American Renovation and Construction Co., ASBCA Nos. 53723, 54038, 2009-2 BCA
¶ 34,199 at 169,056-57, and even considering that SDI mislabeled most of the parts that
it supplied and failed to label the others, the government fails to demonstrate that it was
reasonable (and cites no case in which it was found reasonable) to have waited more
than 14 months and as many as 42 months to decide whether to revoke the acceptance
of accepted items.
SDI is awarded $21,181.25
Dated: May 25, 2022
TIMOTHY P. MCILMAIL
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
RICHARD SHACKLEFORD OWEN C. WILSON
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
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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. 62721-EAJA, Appeal of Standbuy
Distributors, Inc., rendered in conformance with the Board’s Charter.
Dated: May 25, 2022
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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