J.F. Taylor, Inc.
Docket: ASBCA 56105, ASBCA 56322

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Application Under the Equal Access 
to Justice Act of--
J.F. Taylor, Inc. 
Under Contract Nos. N00421-94-D-0012 
N00421-96-C-5286 
N00421-97-C-1234 
N00174-99-D-0020 
N00421-0 1-C-0422 
N00421-02-D-3179 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
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ASBCA Nos. 56105, 56322 
Richard B. O'Keeffe, Jr., Esq. 
Nicole J. Owren- Wiest, Esq. 
Samantha S. Lee, Esq. 
Wiley Rein LLP 
Washington, DC 
E. Michael Chiaparas, Esq. 
DCMA Chief Trial Attorney 
Robert L. Duecaster, Esq. 
Trial Attorney 
Defense Contract Management Agency 
Manassas, VA 
OPINION BY ADMINISTRATIVE JUDGE SHACKLEFORD 
. ON APPLICANT'S MOTION FOR RECONSIDERATION 
J.F. Taylor Inc. (JFT or applicant), has moved for reconsideration of our decision 1 
denying its application for fees and expenses under the Equal Access to Justice Act 
(EAJA). The government has replied to the motion. For the reasons set forth below, the 
motion is denied. We assume familiarity with the decisions issued on the underlying 
appeals, J.F. Taylor, Inc., ASBCA Nos. 56105, 56322, 12-1 BCA ~ 34,920, aff'd on 
recon., 12-2 BCA ~ 35,125, and our initial EAJA decision, J.F. Taylor, Inc., ASBCA 
Nos. 56105, 56322,13 BCA ~ 35,297. 
1 Judge Thomas, who participated in the decision under reconsideration, has since retired. 

In finding the government's conduct reasonable and thus substantially justified, 
we stated our rationale as follows: 
First, the government's position was supported by legal 
precedent. Job Options, 11-1 BCA ~ 34,663 at 170,761 
(government conduct substantially justified where position 
supported by legal precedent). Second, the method used by 
the government to evaluate the reasonableness of executive 
compensation had been used over a long period of time and 
this methodology was part of the DCAA contract audit 
manual. Cf R&B Bewachungsgesellschaft mbH, ASBCA 
No. 42221, 93-3 BCA ~ 26,010, aff'd on recon., 94-1 BCA 
~ 26,315 (government position substantially justified where 
based on published regulation). Third, the statistical evidence 
presented at hearing was a new approach, and the government 
countered. it by reiterating the position it had long taken in 
·executive compensation cases. Finally, while the government 
concedes appellant was a prevailing party, we observe that 
the government prevailed on some amounts where it 
challenged revenue attribution and was substantially justified 
as to those. 
JF. Taylor, Inc., 13 BCA ~ 35,297 at 173,271. 
JFT contends our decision is incorrect and challenges the first three reasons stated 
in the above quoted passage from our decision on the application. It does not challenge 
the fourth rationale because there is no apportionment request pending based upon the 
relatively small amounts where the government prevailed on its challenge to revenue 
attribution. 
As to our first rationale, that the government's position was supported by legal 
precedent, applicant states that it presumed the precedent we referred to was our decision 
in Techplan Corp., ASBCA No. 41470 eta/., 96-2 BCA ~ 28,426, and argues that the 
government "misused and distorted the Techplan decision" (mot. at 3). Moreover, 
applicant points out that while it argued that DCAA's policy decision in JFTwas 
contrary to Techplan, we failed to address this argument in our decision, and that such 
failure is reason enough to reconsider citing Charles G. Williams Constr. Inc. v. White, 
271 F.3d 1055 (Fed. Cir. 2001), as support for that position. 
While applicant argues that the government misused and distorted Techplan, as the 
government points out in its reply (reply at 1 ), we did not so find in our decision on the 
claim. JF. Taylor, Inc., 12-1 BCA ~ 34,920. In fact, we said DCAA generally followed 
the factors set forth in Techplan. !d. at 171,718. What made the government's evidence 
2 

lacking was not its misuse of Techplan, but its total reliance on Techplan without meeting 
the Jackson wrinkle challenging step 6 of the Techplan analysis head-on. That may have 
been a tactical error in defending the claim, but not one fatal to substantial justification of 
the position it took relying on Techplan as precedent. 
Next, JFT argues that as a matter of law it is irrelevant that the method used by 
the government to evaluate the reasonableness of executive compensation had been used 
over a long period of time and that this methodology was part of the DCAA Contract 
Audit Manual. JFT does not dispute that when an agency position is based on a 
published regulation its position may be deemed substantially justified to defeat an EAJA 
applicant, but here, JFT says we have a DCAA policy (invariable 10% ROR) and a 
manual that is not published and does not have the force of regulation. DCMA counters 
by agreeing that reliance on the DCAA manual and long standing practice alone might 
not justify an otherwise unreasonable position, but those factors combined with the fact 
that the methodology in the manual was based upon legal precedent (Techplan) justified 
the government's position. 
We agree with DCMA. As we just pointed out, DCAA "generally followed" the 
factors set forth in Techplan, JF. Taylor, 12-1 BCA ~ 34,920 at 171,718, and we found 
Benz credible for the finding that the reviews were performed using the usual DCAA 
procedures, J.F. Taylor, 12-1 BCA ~ 34,920 at 171,719, which of course are based on 
Techplan. 
Finally, JFT argues unpersuasively that while the statistical evidence presented at 
hearing by JFT was a new approach, countering it by reiterating the position it had long 
taken in executive compensation cases is not a proper legal basis for our finding the 
government's position substantially justified. This argument is a variation of the 
previous argument that the long taken position in executive compensation cases was 
based upon the DCAA manual which is not a published regulation. However, as pointed 
out earlier, said manual is based upon the Techplan legal precedent that it followed. 
Thus, we are not persuaded to modify our decision on this basis. 
Finally, appellant gratuitously states as follows: 
What the EAJA Application Denial thus stands for is, 
in essence, that if an agency does something that is inherently 
unreasonable for a long time, it ultimately becomes 
unreasonable for that agency to compel a contractor to litigate 
the issue, without hope of recouping, under EAJA, some 
small portion of the costs of correcting the agency's error. 
The EAJA Application Denial does not provide any 
reviewable analysis or legal authority to support the 
conclusion that an unjustified position becomes justified 
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(Mot. at 7) 
simply through passage of time. In this case, Respondent's 
position in these Appeals has never been justified as a matter 
of statistics, and it was not justified on the basis of the 
Board's precedent or the DCAM. For these reasons, the 
Board should reconsider its Denial of Appellant's EAJA 
Application. 
Other than voicing our disagreement with the assertion that the agency position 
was inherently unreasonable over a long period of time, we do not reply to applicant's 
characterization of what our decision means, any more than we would speculate as to 
what the outcome would have been had the government presented an expert witness in 
statistics to counter Mr. Jackson. While one could quibble over the status of the DCAA 
manual and the established practice by DCAA in approaching executive compensation 
cases, the fact remains that the Techplan decision was established law that the 
government relied upon and that the DCAA manual was based upon; and, on that basis, 
we do not modify our decision that the government's position was substantially justified. 
Applicant's motion for reconsideration of our decision is denied. 
Dated: 23 October 20 13 
I concur 
4 
RICHARD SHACKLEFORD 
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 Nos. 56105, 56322, Appeals of J.F. Taylor, Inc., 
rendered in accordance with 5 U.S.C. § 504. 
Dated: 
5 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals