Relyant, LLC
Docket: ASBCA 59809
Decision date: 2019-04-22

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Application Under the Equal Access ) 
to Justice Act of -- ) 
) 
Relyant, LLC ) 
) 
Under Contract No. W91B4N-08-D-001 l ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 59809 
James H. Price, Esq. 
Lacy, Price & Wagner, PC 
Knoxville, TN 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
MAJ Jason W. Allen, JA 
Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE PROUTY 
ON APPELLANT'S EQUAL ACCESS TO JUSTICE ACT APPLICATION 
In a timely filed application, appellant, Relyant, LLC (Relyant), seeks attorney's 
fees and compensation for other costs of this litigation pursuant to the Equal Access to 
Justice Act, 5 U.S.C. § 504 (EAJA). The government opposes the request, contending 
that its defense of this appeal was substantially justified, making Relyant ineligible for 
fees (gov't br.). We rule in favor of Relyant, though we slightly reduce the amount to 
which it is entitled from what it seeks. 
BACKGROUND 1 
In our opinion, dated June 27, 2018, we granted Relyant partial relief for its 
claims. The above-captioned contract was for the provision of relocatable buildings to 
the United States Army (Army or government) in Afghanistan. Relyant had wished to 
change the specifications for the wall insulation for components of these buildings 
known as "cans," and asserted that the government had agreed to the change before 
rejecting cans that had been manufactured in accordance with the hoped-for design 
change. We held that the government had not, in fact, agreed to the changes, but that its 
1 Unless otherwise noted, these facts are all taken from our earlier decision in favor of 
Relyant following the trial: Relyant, LLC, ASBCA No. 59809, 18-1 BCA 
,i 37,085,partial reconsideration denied, 18-1 BCA ,i 37,146. Familiarity with 
that opinion and our decision upon Relyant's request for partial reconsideration 
is presumed. 

faith and fair dealing in the circumstances presented. We found the government liable 
for damages flowing from a later date than Relyant hoped for, leading to substantially 
lower damages than it sought. Relyant sought partial reconsideration on the calculation 
of damages, but we denied that request. 
Relyant' s request for attorney fees in this matter includes a declaration from its 
chief executive officer, Mr. Daniel Smith, asserting that at the time of the filing of the 
appeal in January 2015, Relyant's net worth was less than $7 million and it had less 
than 500 employees (see app. br., ex. A at 1 ). Relyant also includes a declaration from 
its attorney, Mr. James Price, setting forth a copy of his firm's billing records for this 
appeal, as well as expenses (see id., ex. B, ex. 12). The number of attorney hours sums 
to 750.1 (id., ex. 1 at 20), which, multiplied by the statutory hourly rate of$125, yields 
$93,762.50, although Mr. Price's firm billed Relyant at a higher rate, yielding 
$174,898.75 in paid fees (id.). Expenses paid and advanced add up to $10,231.58 
(id. at 21), which, added to the $93,762.50 in attorney fees at the EAJA rate, totals 
$103,994.08. 
One matter of note is that Relyant claims 11. 7 hours for work on its 
unsuccessful motion for partial reconsideration (app. br. at 19-20). At $125 per hour, 
this is $1,462.50. 
DECISION 
EAJA provides that a business with a net worth less than $7,000,000 that 
prevails before the Board "shall (be] award[ed]" the fees (at the EAJA rate) and other 
expenses that it incurred unless the position of the government was "substantially 
justified" or other circumstances make such an award unjust. 5 U.S.C. § 504; see also 
SST(Supply & Service Team) GmbH, ASBCA No. 59630, 18-1 BCA ii 36,932 
at 179,932 (citing Rex Systems, Inc., ASBCA No. 52247, 02-1 BCA ,i 31,760 
at 156,854). The government has essentially conceded that Relyant is the prevailing 
party (gov't br. at 2), and does not dispute that its application is timely or that it is of a 
size to be eligible for an EAJA award. Moreover, its opposition to Relyant's filing 
does not contest the amount sought by appellant. Instead, the entirety of the 
government's opposition to Relyant's EAJA application rests upon the notion that the 
government's position was "substantially justified" as that term is used in the EAJA 
statute. (Gov't br. at 2-5) In particular, the government argues that a number of 
factors should lead to the conclusion that it was substantially justified: first, that 
Relyant did not prevail on its argument that the specifications for the cans had been 
amended by the government (id. at 4 ); next, that Relyant only received a fraction of 
the damages that it sought (id. at 5); and finally, that the law on good faith and fair 
2 Mr. Price's declaration, exhibit B to Relyant's request for fees, had its own attached 
exhibit, exhibit 1. 
2 

dealing was ambiguous enough to make the government's defense against such a claim 
substantially justified (id. at 4-5). We disagree on all these particulars. 
The law regarding .. substantial justification'· and EAJA is straightforward. To 
prevail, the government is not required to prove that it had a substantial likelihood of 
victory in the litigation, but it does bear the burden of proof to 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." SST, 18-1 BCA 136,932 at 179,932 (quoting 
Pierce v. Underwood, 487 U.S. 552,566 n.2 (1988)); Rex Systems, 02-1BCA131,760 
at 156,854. Put another way, the government's position is more likely to be 
substantially justified when greater "legal uncertainty'· is presented. SST, 18-1 BCA 
~ 36,932 at 179,932 (citing Rex Systems, 02-1 BCA, 31,760 at 156,855). 
It is important to recognize that substantial justification applies to the entirety of 
the litigation position and not just the posture on individual issues. Thus, the Supreme 
Court has held that, '·[w]hile the parties' postures on individual matters may be more 
or less justified, the EAJA - like other fee-shifting statutes - favors treating a case as 
an inclusive whole, rather than as atomized line-items." Commissioner, INS v. Jean, 
496 U.S. 154, 161-62 (1990) (citations omitted); cf Texas State Teachers Ass'n v. 
Garland Indep. Sch. Dist., 489 U.S. 782, 793 (1989) (in another fee-shifting statute, 
overall success goes to reasonableness, not availability, of the award). 
On the other hand, when determining the reasonableness of the award, we may 
exclude fees for separable work on claims that were unsuccessful. Hart's Food 
Services, Inc., dba Delta Food Service, ASBCA No. 30756R et al., 93-1 BCA 
125,524 at 127,179 (citing Hensley v. Eckerhart, 461 U.S. 424, 440 (1983)). 
Thus, we tum to the government's contentions. Since we primarily focus upon 
the overall result of the litigation for purposes of substantial justification analysis, 
Relyant' s lack of success on one particular cause of action (its allegation that the 
government had agreed to the change in can specifications) does not make the 
government's defense substantially justified. Nor does Relyant's failure to obtain all 
of the money that it sought mean that the government's position was substantially 
justified. We now tum to whether "legal uncertainty" regarding the doctrine of good 
faith and fair dealing supports a finding that the government's defense was 
substantially justified. 
We made no secret in our decision of our view that the tests set forth in some 
cases explicating the doctrine of good faith and fair dealing lacked precision. See 
Relyant, 18-1 BCA 137,085 at 180,539. In large part, though, that was because those 
cases appeared to have few limits upon their application to "unreasonable" 
government action. Id. Our opinion sought to put the doctrine on somewhat firmer 
ground by drawing clearer, tighter borders upon its use, as it did. See id. Indeed, after 
3 

our decision here. the United States Court of Appeals for the Federal Circuit issued its 
opinion in Dobyns v. United States. 915 F.3d 733 (Fed. Cir. 2019), which took a 
similar approach to more narrowly delineating the duty. See id. at 739. Thus, though 
we ruled in favor of Relyant by finding a breach of the duty of good faith and fair 
dealing, we did so in a way that was no more expansive than pre-existing law and, if 
anything, set forth a more limited application than might have been divined by a loose 
reading of some earlier cases. Consequently, even given a more "conservative'' 
reading of the pre-existing case law on good faith and fair dealing, the government's 
actions (inactions may be a better descriptor here) were clearly within the definition of 
a breach of the duty of good faith and fair dealing. I ts defense of its inactions in the 
facts presented in this appeal, then. was not substantially justified. 
The government has made no challenge to the reasonableness of Relyant's 
attorney fees which, to us, appear quite reasonable on their face with one exception: 
the fees incurred working on Relyant's unsuccessful motion for partial 
reconsideration. Given Relyant' s complete lack of success on that motion, the fact 
that it did not contribute to Relyant' s ultimate success on the merits ( coming, as it did, 
after that success), and the fact that these fees are easily severable from Relyant's 
other fees, we deduct the 11. 7 hours spent on the motion for partial reconsideration, 
which sums to $1,462.50. from Relyant's recoverable fees. 
CONCLUSION 
Relyant has demonstrated its entitlement to fees and the government has not 
carried its burden to prove that its defense of this appeal was substantially justified. 
Moreover, the government has not challenged the quantum of$103,994.08 in fees and 
expenses sought by Relyant, which appears to us to be reasonable - with the exception 
of the $1,462.50 incurred in support of the motion for partial reconsideration. 
Relyant's application for the award of fees and expenses is granted in the amount of 
$102,531.58. . 
Dated: April 22, 2019 
(Signatures continued) 
4 
J. REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 

I concur 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
Administrative Judge 
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 on an application for fees and other 
expenses incurred in connection with ASBCA No. 59809, Appeal of Relyant, LLC, 
rendered in accordance with 5 U.S.C. § 504. 
Dated: 
5 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals