WECC, Inc.
Docket: ASBCA 60949
Decision date: 2022-04-13

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE MELNICK ON APPELLANT’S 
APPLICATION UNDER THE EQUAL ACCESS TO JUSTICE ACT 
 
 Appellant, WECC, Inc. (WECC), seeks fees and costs under the Equal Access 
to Justice Act (EAJA), 5 U.S.C. § 504, as a result of its successful recovery in the 
underlying appeal.  WECC, Inc., ASBCA No. 60949, 21-1 BCA ¶ 37,948.  We find 
that WECC is an eligible, prevailing party, and that the government’s position was not 
substantially justified.  Accordingly, we grant recovery with adjustments for 
reasonableness.      
 
BACKGROUND 
 
 In this appeal involving the renovation of a Post Exchange, WECC alleged 
compensable delay by the government and sought associated overhead.  In addition, it 
claimed entitlement to costs of field management related to its original performance 
period, change orders, asbestos testing, steel plates, bond, claim preparation, and 
various subcontractor costs.  WECC also sought remission of liquidated damages and 
retainage.   
 
The Board’s October 19, 2021 decision found WECC was entitled to 169 days 
of compensable time extension, equating to $383,927.17 in extended field office 
overhead.  WECC, 21-1 BCA ¶ 37,948 at 184,306-08.  WECC was also entitled to 
Application Under the Equal Access )  
  to Justice Act of --                                      )  
 )  
WECC, Inc. ) ASBCA No. 60949-EAJA 
 )  
Under Contract No. 70-0014-1522 )  
   
APPEARANCES FOR THE APPELLANT: G. Scott Walters, Esq. 
Jacob W. Scott, Esq. 
Brian S. Wood, Esq. 
    Smith, Currie & Hancock LLP 
    Washington, DC 
 
APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq. 
    Army Chief Trial Attorney 
 MAJ Joseph D. Levin, JA 
Dana J. Chase, Esq. 
    Trial Attorneys 

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$10,655.63 in unsupported government price deductions.  Id. at 184,311.  Reduced by 
$120,000 in liquidated damages and an incidental expense of $4,545, the Board found 
that the government owed WECC $270,037.80.  The government also owed 
$276,408.31 in retainage for a total recovery of $546,446.11, plus interest.  Id.  
 
As adjusted in its reply brief, WECC seeks EAJA compensation for 2,123.4 
attorney hours worked over more than five years.  When rates are reduced to account 
for EAJA’s $125 per hour cap (see 5 U.S.C. § 504(b)(1)(A)(ii)), WECC requests 
$265,425 in attorney fees.  It also seeks $20,740.16 in expenses incurred by its counsel.  
WECC seeks $12,141.60 in court reporting and copying charges.  WECC’s reply also 
adjusted its expert witness fees to comply with another EAJA limitation (see 5 U.S.C.  
§ 504(b)(1)(A)(i)) and seeks $172,233 in expert witness fees and $1,361.43 in expenses 
related to its experts.  WECC submitted supporting materials for all of its claims (app. 
br., exs. E, G-H, 1-4; app. reply br., exs. F, J-K).
1  
 
DECISION 
 
The Board shall award fees and other expenses incurred by a prevailing party 
(other than the government) unless it concludes that the agency’s position was 
substantially justified or that special circumstances make an award unjust.  5 U.S.C.  
§ 504(a)(1).  To receive an award, WECC must qualify as a party as defined by EAJA.  
It must be a “prevailing party,” the government position cannot have been “substantially 
justified,” no “special circumstances make an award unjust,” and its petition must have 
been timely.  See Comm’r, INS v. Jean, 496 U.S. 154, 158-61 (1990).   
 
I. Timeliness 
 
The government does not question that WECC’s December 29, 2021 
application was filed within thirty days of final disposition of this appeal decided 
October 19, 2021.  We agree.  See Avant Assessment, LLC, ASBCA No. 58903,  
18-1 BCA ¶ 37,040 at 180,324 (finding the application is due thirty days after the  
120-day period to appeal the Board’s decision has expired).   
 
II. Status as a Party  
 
 As a corporation, WECC qualifies as a party under EAJA if its net worth did not 
exceed $7,000,000 and it did not have more than 500 employees at the time the 
adversary adjudication was initiated.  5 U.S.C. § 504(b)(1)(B).  The government disputes 
                                              
1 The government questions whether WECC was charged expert witness fees but we 
are satisfied with the evidence it has produced showing it has paid at least the 
claimed amount in fees (app. reply br., exs. J-K).   

3 
 
whether WECC has demonstrated it meets these criteria.  Net worth is determined by 
subtracting total liabilities from total assets.  K&K Indus., Inc., ASBCA No. 61189,  
19-1 BCA ¶ 37,353 at 181,627.  WECC initiated its appeal on December 19, 2016.  
Schedule L of WECC’s 2016 U.S. Income Tax Return for an S Corporation shows its 
total assets at the beginning of the year were valued just under $1,000,000 and were 
$601,056 at the end of the year (app. br., ex. B, Form 1120S at 4).  This satisfies us that 
WECC’s net worth did not exceed $7,000,000.  WECC has also provided a declaration 
by its president testifying that WECC only employed five people in 2016 (app. reply br., 
Meaza decl. ¶ 5).     
 
III. Prevailing Party 
 
 A party is a “prevailing part[y] for attorney’s fees purposes if [it] succeed[ed] 
on any significant issue in litigation which achieves some of the benefit the part[y] 
sought in bringing suit.”  Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (quoting 
Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)); Maggie’s Landscaping, 
Inc., ASBCA No. 56748, 12-1 BCA ¶ 34,974 at 171,918.  The government does not 
question WECC’s status as a prevailing party.  WECC succeeded in establishing 
compensable delay and unsupported price deductions by the government, entitling it to 
a monetary recovery.  It achieved some of the benefit sought by its appeal.    
 
IV. Substantially Justified Agency Position 
 
 “The Government’s position is substantially justified if it is ‘justified to a degree 
that could satisfy a reasonable person’ and has a ‘reasonable basis both in law and fact.’”  
Int’l Custom Prods., Inc. v. United States, 843 F.3d 1355, 1358 (Fed. Cir. 2016) (quoting 
Pierce v. Underwood, 487 U.S. 552, 565-66 (1988)).  “Whether or not the position of the 
agency was substantially justified shall be determined on the basis of the administrative 
record, as a whole, which is made in the adversary adjudication for which fees and other 
expenses are sought.”  5 U.S.C § 504(a)(1).  The government bears the burden of proof.  
See Athey v. United States, No. 2020-2291, 2021 WL 4282593, at *5 (Fed. Cir. Sept. 21, 
2021); Job Options, ASBCA No. 56698, 11-1 BCA ¶ 34,663 at 170,761.  We make one 
threshold determination for the entire action.  Int’l Custom Prods., 843 F.3d at 1358 
(citing INS v. Jean, 496 U.S. at 159); K&K Indus., 19-1 BCA ¶ 37,353 at 181,628.   
 
 First, the government contends that its position was substantially justified 
because it offered to settle the claim before the appeal was filed, but WECC refused.  
One of the government’s offers exceeded the total amount ultimately awarded by the 
Board to WECC (gov’t br., ex. G7).  The Board has recognized that the rejection of a 
settlement offer is a factor informing the reasonableness of the amount of any awarded 
fee.  C.H. Hyperbarics, Inc., ASBCA No. 49375 et al., 05-2 BCA ¶ 32,989 at 163,494; 
see also Oneida Constr., Inc./David Boland, Inc., JV, ASBCA No. 44194 et al.,  

4 
 
95-2 BCA ¶ 27,893 at 139,147.  Here, we are not determining the reasonableness of 
WECC’s fees but instead the threshold question of whether the government’s position 
was substantially justified.  We consider WECC’s rejection of government settlement 
offers later in this opinion.     
 
 Next, the government emphasizes that before the appeal even commenced it 
extended the contract for 127 of the 169 days of compensable delay found by the 
Board, implying that it had already given WECC most of what it deserved.  The 
government ignores the fact that the Board found none of those extensions paid 
WECC the extended overhead it was owed for the 169 days.  WECC, 21-1 BCA  
¶ 37,948 at 184,306-08.  Indeed, the very first paragraph of the government’s post 
hearing brief argued that WECC was entitled to zero days of compensable delay, but 
in any event no more than a total of 23 (gov’t post hearing br. at 6).  Later, it cut that 
number back to six but then changed its mind again and said nine (gov’t post hearing 
br. at 59).2  The misleading nature of the government’s argument hardly advances its 
case for substantial justification.   
 
 The government also maintains that its position was substantially justified 
because the findings against it involved close factual questions turning upon evidence 
developed at the hearing.  See Job Options, 11-1 BCA ¶ 34,663 at 170,761 (noting the 
Board has denied EAJA recovery when there were close factual questions that were 
not clearly established until after the hearing).  Though the Board did not find all the 
delays alleged by WECC, the 169 days of compensable delay for which it found the 
government responsible was the far majority of the 218 days WECC sought.  WECC, 
21-1 BCA ¶ 37,948 at 184,308.  The causes of those setbacks, including a poor 
concrete slab, the need to replace a storm drain, and the restoration of work in an 
optical area, were all the subject of changes during performance and addressed by 
WECC’s expert report.  Id. at 184,303-05.  They were not newly introduced matters 
unknown to the government prior to the hearing.  Moreover, our findings about the 
compensable delays proven by WECC did not turn on close factual questions.  Though 
the government presented an expert who tried to attribute responsibility for most of the 
                                              
2 The government also seems to suggest that it deserves credit for the fact that 
Amendment No. 16, issued by the contracting officer before the appeal was 
filed, approved “General Conditions” compensation in the amount of $2,006 for 
38 days of extension, or $76,228.  WECC, 21-1 BCA ¶ 37,948 at 184,304.  That 
amount was completely inadequate given the Board’s conclusion that WECC 
was entitled to $383,927.17 for the 169 days of compensable time extension it 
found WECC was owed.  Id. at 184,307-08.  Perhaps more significantly, the 
government seems to have forgotten that it put on sworn testimony at the 
hearing contending that the contracting officer never should have approved the 
$2,006 per day.  Id. at 184,308 n. 18.  

5 
 
delays upon WECC, we found his presentation unpersuasive, conclusory, and 
unsupported.  Id. at 184,306 n.7.  There were no close questions.  
 
 The government points us to the positions it took, some successful some not, to 
deny WECC the compensation it sought for the delays.  Although the government 
mentions its failed attempt to convince us that accord and satisfaction limited WECC’s 
recovery of field office overhead, it does not explain why it was substantially justified.  
It also contends that it was reasonable for it to selectively rely upon one paragraph of 
the contract provision governing price adjustments for change orders to restrict 
WECC’s field office overhead to 10% of direct costs.  As we noted in the decision, not 
all of the delays were due to change orders.  Moreover, the government ignored 
another paragraph of the same provision expressly recognizing that additional recovery 
could be allowed when performance is extended, as happened here.  Id. at 184,307-08.  
The government’s effort to distinguish this paragraph now at the fee application stage 
is too late.  Nor during the litigation did the government try to explain the fact that its 
own conduct during performance was contrary to its restrictive contract interpretation.  
Id. at 184,308.  Given these omissions, the government’s position was completely 
misplaced and not one that a reasonable person would find had a reasonable basis in 
law and fact.  Also, while WECC did not recover the additional home office overhead 
it sought under the Eichleay formula, id. at 184,308-09, that fact does not make 
reasonable its denial of entitlement to any recovery for delays.     
 
 Finally, the government observes that WECC was unsuccessful with other 
components of its appeal, including its effort to recover the costs of field management, 
asbestos testing, steel plates, bond, claim preparation, subcontractor claims, and 
additive change orders.  Id. at 184,309-11.  The government does not suggest its 
rejected position on deductive change orders was reasonable, which is not surprising 
since it made no effort during the appeal to prove its case.  Id. at 184,311.  Though the 
government did achieve success on the other topics mentioned, our task is to make one 
determination of substantial justification for the entire appeal, not to parse the issues.  
The primary focus of this appeal was WECC’s compensable delay claim.  The far 
majority of the evidence and hearing was devoted to that matter.  For the reasons we 
have said, the government’s denial of recovery for those delays was not substantially 
justified and therefore that is the single determination we make for the appeal.   
 
V. Reasonable Fees and Expenses 
 
 As we have suggested, the fact that WECC is a prevailing party and the 
government’s position was not substantially justified does not by itself entitle WECC 
to recover all the fees it seeks.  It remains for us to determine what fees are reasonable.  
5 U.S.C. § 504(b)(1)(A) (requiring fees and expenses to be “reasonable”); Jean, 
496 U.S. at 160-61.  This is where the government’s observations about the 
components of WECC’s appeal that failed become relevant because “work on an 

6 
 
unsuccessful claim cannot be deemed to have been ‘expended in pursuit of the 
ultimate result achieved.’”  Hensley, 461 U.S. at 435 (quoting Davis v. County of 
Los Angeles, 8 E.P.D. ¶ 9444, at 5049 (C.D. Cal. 1974)).   
 
 WECC has provided us with over 200 pages of attorney billing records (app. 
br., ex. B).  The government contends we are obligated to study each line item of each 
of those pages, find the few items that expressly identify work performed on issues 
that succeeded for WECC, calculate its recovery based solely upon those items, and 
then reduce it to 16.9% of that figure because that is the percentage of WECC’s 
original claim that the government says WECC recovered.  The government argues we 
should then reduce the recovery even more to account for WECC’s rejections of the 
government’s settlement offers.  The government expends none of its own energy to 
assist us with that task.    
 
 Fortunately, we have more flexibility available to us than the government 
suggests.  It is true that when a claimant only achieves partial success, basing an EAJA 
award on the hours reasonably expended on the whole case may be excessive because 
no fee may be awarded for services on unsuccessful claims.  However, we have 
discretion in determining the amount of a fee award as long as we make clear that we 
have accounted for the relationship between the amount awarded and the results 
obtained.  Hensley, 461 U.S. at 435-36; Avant Assessment, 18-1 BCA ¶ 37,040 
at180,324 (“Where a party has achieved only limited success, we should award only 
that amount that is reasonable in relation to the results achieved”).  No precise rule or 
formula governs this determination.  We can try to identify specific hours that should 
be eliminated, as the government demands, or we may make an equitable reduction to 
account for the limits of WECC’s success.  Hensley, 461 U.S. at 436-37.  We choose 
the latter.   
 
 We are not persuaded by the government’s contention that fees would be 
equitably reduced if we calculated them based upon the percentage of WECC’s 
original claim that it recovered.  As indicated, by far the majority of the hearing time 
and competing efforts between the parties involved WECC’s successful demonstration 
of compensable delays by the government, entitling it to $383,927.17 in field office 
overhead.  WECC’s additional unsuccessful request for $266,186.72 in home office 
overhead required a relatively small amount of additional testimony, evidence, and 
briefing explaining how it was calculated.  WECC provided very limited testimony 
and briefing supporting field management, asbestos testing, steel plates, bonding, and 
claim preparation.  The one subcontractor witness discussing its own claims testified 
for a very short time period.  WECC made virtually no effort to prove its subcontractor 
claims, which contributed to its failure to succeed on those matters.  WECC’s 
unilateral change order claim was partially successful.  The entirety of that subject 
involved a marginally larger amount of briefing than the other matters.  The proper 
calculation of liquidated damages and retainage was not in dispute.  Taken as a whole, 

7 
 
we conclude that a reduction in WECC’s attorney fees and expenses by 20% equitably 
accounts for the work WECC’s attorneys performed on the portions of its case that 
failed.  It is not necessary to reduce the expert witness fees and expenses sought by 
WECC because that testimony was in support of WECC’s successful compensable 
delay claim.     
 
 What remains is the government’s original argument about its settlement offers 
made before the appeal was filed, including the one that exceeded WECC’s award.  
Had WECC accepted that offer it would have saved itself and the government the 
expense of this litigation.  Though the rejected settlement offers inform the 
reasonableness of an EAJA recovery, they do not disqualify WECC from all of the 
benefits of EAJA’s fee shifting provisions.  See C.H. Hyperbarics, Inc., 05-2 BCA  
¶ 32,989 at 163,494 (reducing the EAJA award to an appellant that rejected a 
significant settlement offer but not denying it outright).  We reduce WECC’s recovery 
by 20% from what it would otherwise have been. 
 
 WECC’s attorney fees, expenses, and charges are reduced by 20% to reflect the 
portions of the appeal that failed.  This reduces them to $238,645.41.  That amount is 
reduced an additional 20% to reflect WECC’s rejection of the government’s settlement 
offers.  The final amount is $190,916.33 in attorney fees, expenses, and charges.
3  
WECC’s expert witness fees and expenses are also reduced by 20% to reflect its 
settlement rejections, lowering them to $138,875.54.4  WECC is therefore entitled to a 
total of $329,791.87 in fees and other expenses.5 
  
                                              
3 $265,425 + $20,740.16 + $12,141.60 = $298,306.76 
   $298,306.76 – ($298,306.76 x .2) = $238,645.41 
   $238,645.41 – ($238,645.41 x .2) = $190,916.33 
4  $172,233 + $1,361.43 = $173,594.43 
   $173,594.43 - ($173,594.43 x .2) = $138,875.54 
5  $190,916.33 + $138,875.54 = $329,791.87 

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CONCLUSION 
 
WECC is awarded $329,791.87 under EAJA.   
 
 Dated:  April 13, 2022 
 
 
 
MARK A. MELNICK 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
I concur 
 
 
 
 I concur 
 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 J. REID PROUTY 
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. 60949-EAJA,
 Appeal of 
WECC, Inc., rendered in conformance with the Board’s Charter. 
 
 
 Dated:  April 14, 2022 
 
 
 
 
        
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals