GSI & Whitesell-Green, JV
Docket: ASBCA 62216
Decision date: 2020-01-30

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of--
GSI & Whitesell-Green, JV 
Under Contract No. FA3022-15-C-0001 
APPEARANCE FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 62216 
Mr. Josh Owens 
President 
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. <ltd. November 11, 2019). 
FINDINGS OF FACT 
The Board issued its decision in GS! I on March 20, 2019. On September 24, 
2019, the Air Force reported to the Board that the contracting officer had issued a 
modification in the amount of $9,828 (the amount sought by appellant in its claim) plus 
interest under the Contract Disputes Act, 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 ). 
2 

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. 
The appeal is denied. 
Dated: January 30, 2020 
(Signatures continued) 
CONCLUSION 
3 
~)}1~ I'{). e) '~-U 
MICHAEL N. O'CONNELL 
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 
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: 
4 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals