Avant Assessment, LLC
Docket: ASBCA 58903, ASBCA 60143, ASBCA 60144
Decision date: 2018-04-24

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Application Under the Equal Access ) 
to Justice Act of -- ) 
) 
Avant Assessment, LLC ) 
) 
Under Contract No. W9124N-11-C-0015 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 58903 
Dirk D. Haire, Esq. 
Alexa Santora, Esq. 
Sean Milani-nia, Esq. 
Rachel M. Severance, Esq. 
Fox Rothschild LLP 
Washington, DC 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
CPT Harry M. Parent III, JA 
MAJ Julie A. Glascott, JA 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL 
ON APPELLANT'S EQUAL ACCESS TO JUSTICE ACT APPLICATION 
Appellant has applied for $45,405.29 in fees and expenses pursuant to the Equal 
Access to Justice Act (EAJA), 5 U.S.C. § 504, after we sustained ASBCA No. 58903 
and converted the default termination of the contract referenced above ( contract 15 ( for 
the development and delivery of foreign-language test items to the Defense Language 
Institute)) to one for the convenience of the government. Avant Assessment, LLC, 
ASBCA No. 58903 eta!., 17-1 BCA ,r 36,837 at 179,507, 179,510-11. Familiarity with 
that opinion, which also concerns three other appeals (ASBCA Nos. 60143, 60144, and 
60619) and two other contracts ( contracts 33 and 40) is presumed. In response to 
appellant's EAJA application, the government says the application is premature, 
because, it says, our decision in ASBCA No. 58903 is not final (gov't resp. at 1-2). Our 
conversion of the default termination of contract 15 left nothing to adjudicate in ASBCA 
No. 58903; consequently, we reject the government's prematurity argument. See Avant 
Assessment, LLC, ASBCA No. 58867, 16-1 BCA i! 36,436 at 177,601. On August 23, 
2017, the government received our decision sustaining ASBCA No. 58903; that 
disposition became final on December 21, 2017, when the government's 120-day appeal 
period expired. See Radar Devices, Inc., ASBCA No. 43912, 01-1 BCA ,r 31,322 at 
154,712; 41 U.S.C. § 7I07(a)(l)(B). Appellant had 30 days, until Monday, January 22, 

2018, to submit its application for EAJA fees to the Board. See 5 U.S.C. § 504(a)(2). It 
did so on January 18, 2018; therefore, the application is timely. 
The government has the burden of proving that its position in this appeal was 
substantially justified. Scarborough v. Principi, 541 U.S. 401, 414-15, 124 S. Ct. 1856 
(2004). Here it does not assert that its position was substantially justified, and 
concedes appellant's eligibility for an award (gov't resp. at 1 ). Nevertheless, the 
government says that appellant "may only be awarded EAJA fees to the extent it was 
successful" (id. at 2). Where a party has achieved only limited success, we should 
award only that amount that is reasonable in relation to the results obtained. See 
Freedom NY, Inc., ASBCA No. 43965, 09-1 BCA ,r 34,097 at 168,595. Although we 
sustained ASBCA No. 58903, we dismissed ASBCA Nos. 60143 and 60144 (seeking 
price adjustments for contracts 33 and 15) as moot, and denied ASBCA No. 60619 
(seeking breach damages related to contract 40). Avant Assessment, 17-1 BCA 
,r 36,837 at 179,511-12. It appears that, appropriately, appellant has attempted an 
apportionment of its fees and costs, with the objective of obtaining only that portion 
fairly attributable to ASBCA No. 58903, in which it prevailed. See International 
Foods Retort Co., ASBCA No. 34954 et al., 93-3 BCA ,r 26,249 at 130,573. There is 
no precise formula for that task; it is based, instead, on review of the record as a 
whole. Id. 
The government says that appellant's $45,405.29 request equates to 
363.24 hours of attorney time at $125 per hour (gov't resp. at 3); however, attached to 
the EAJA application are "summaries" of the fees and expenses sought for ASBCA 
No. 58903, including one summary that expressly identifies $12,548.29 as an 
"Estimate of ASBCA No. 58903 Related Cost in Entry" (out of $37,645.03 in "Total 
Cost in Entry") for such things as photocopying services and expenses related to travel 
for the hearing. That $12,548.29 estimate (which the government does not reference) 
means that only $32,857.00 of the $45,405.29 that appellant seeks is for fees, which at 
$125 per hour equates to only 262.86 hours. The invoices attached to the application 
indicate that appellant's attorneys spent approximately 1,000 hours on matters related 
to (1) ASBCA Nos. 58903, 60143, 60144, and 60619; (2) contracts 15, 33 and 40; 
(3) two other, related appeals (ASBCA Nos. 58986 and 59713); (4) one other, related 
contract ( contract 109); and (5) another appeal that does not, at least on its face, appear 
related to the others: ASBCA No. 58836. See Avant Assessment, LLC, ASBCA 
Nos. 58986, 59713, 16-1 BCA ,r 36,505 at 177,862; Technologists, Inc., ASBCA 
No. 58749 et al., 2016 WL 692640 (Feb. 4, 2016). Most of the invoice entries appear 
to relate, at least in part, to the matters raised in ASBCA Nos. 58903, 60143, 60144, 
and 60619. We held a two-day hearing of those appeals in Eugene, Oregon. The 
parties filed post-hearing briefs, and appellant prevailed outright in ASBCA 
No. 5 8903, obtaining the conversion of the default termination of contract 15 to one 
for the convenience of the government. Under these circumstances where appellant is 
only requesting compensation for about Y-i of its hours, we find reasonable appellant's 
2 

request for $45,405.29 in fees and expenses. Cf SST (Supply & Service Team) GmbH, 
ASBCA No. 59630, 18-1 BCA ,i 36,932 at 179,933 (granting $39,767.79 in fees and 
expenses after having granted summary judgment to appellant and sustained appeal). 
The government asks that we set off any award against the $71,572.98 that it says 
is "owed to the government pursuant to the Board's decision dated 22 September 2016 
regarding ASBCA No. 58986, the government's affirmative claim on Contract No. 0109" 
(gov't resp. at 5). We reject that request. We never determined in ASBCA No. 58986 
that appellant owed the government any particular amount; rather, we found that the 
government had overpaid appellant under contract 109, then remanded the matter to the 
parties for negotiation of the amount to be reimbursed to the government. Avant 
Assessment, 16-1 BCA ,i 36,505 at 177,863-64. As for our other decision dated 
22 September 2016, we dismissed ASBCA No. 59713 as moot. Id. 
Appellant's application for the award of $45,405.29 in fees and expenses is granted. 
Dated: 24 April 2018 
I concur 
~ 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
3 
~~ ""TIMOTHYB.MCILIL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
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 Anned 
Services Board of Contract Appeals on an application for fees and other expenses incurred 
in connection with ASBCA No. 58903, Appeal of Avant Assessment, LLC, rendered in 
accordance with 5 U.S.C. § 504. 
Dated: 
4 
JEFFREY D. GARDIN 
Recorder, Anned Services 
Board of Contract Appeals