Optimum Services, Inc.
Docket: ASBCA 58755, ASBCA 59952
Decision date: 2017-07-20

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Application Under the Equal Access ) 
to Justice Act of -- ) 
) 
Optimum Services, Inc. ) 
) 
Under Contract No. W912EP-09-C-0033 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 58755, 59952 
Joseph W. Lawrence, II, Esq. 
Vezina, Lawrence & Piscitelli, P.A. 
Fort Lauderdale, FL 
Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
Charles T. Pino, Esq. 
Joshua R. Holmes, Esq. 
Engineer Trial Attorneys 
U.S. Army Engineer District, Jacksonville 
OPINION BY ADMINISTRATIVE JUDGE DICKINSON 
ON APPELLANT'S APPLICATION UNDER THE 
EQUAL ACCESS TO JUSTICE ACT 
Appellant, Optimum Services, Inc. (OSI), has applied pursuant to the Equal 
Access to Justice Act (EAJA), 5 U.S.C. § 504, for fees and other expenses incurred in 
connection with the subject appeals. The 
appeals arose from a sponsored 
subcontractor claim for $1.87 million and a 93-day time extension for differing site 
conditions adversely impacting the dredging portion of a contract with the Jacksonville 
District Corps of Engineers (the government or the Corps) to restore the benthic 
substrate and hydro logic process of Rose Bay in Volusia County, Florida. See 
Optimum Servs., Inc., ASBCA No. 58755, 15-1BCA~35,939; Optimum Servs., Inc., 
ASBCA No. 59952, 16-1 BCA ~ 36,490. We assume familiarity with those decisions. 
OSI filed its EAJA application on 28 November 2016. OSI initially sought 
recovery of fees and other expenses in the following categories and amounts: 
Category of Fees, Other Expenses 
Attorneys' Fees 
Joseph W. Lawrence, II (14.2 hrs at $425/hr) 
Joseph W. Lawrence, II (546.2 hrs at $475/hr) 
Paul Washington (2 hrs at $190/hr) 
Robert L. Frye ( 1.6 hrs at $330/hr) 
Amount 
Requested 
$ 6,035.00 
$ 259,445.00 
$ 380.00 
$ 528.00 

Robert L. Frye (2.6 hrs at $350/hr) 
Steven K. Johnson (16.5 hrs at $250/hr) 
Steven K. Johnson (646.4 hrs at $275/hr) 
Kristina Diaz ( 4.2 hrs at $21 O/hr) 
Subtotal (Attorneys' fees) 
Legal Assistant Fees 
$ 910.00 
$ 4,125.00 
$ 177,760.00 
$ 882.00 
$ 450,065.00 
A.M. Lucas (0.8 hrs at $120/hr) $ 96.00 
Koly Cuebas (3.9 hrs at $85/hr) $ 
Jacklyn Frometa (60.6 hrs at $80/hr) $ 
Enidelz Alvarado (52.6 hrs at $65/hr) $ 
Subtotal (Legal Assistants) $ 
Miscellaneous Attorney Expenses 
Copy Costs for copies of documents made in 
preparation for the entitlement, quantum hearings 
Attorney Travel Costs 
Costs/Charges for Hearing Transcripts 
Telephone Bills/Conference Calls 
Courier/Postage 
Trial Exhibit Preparation 
Subtotal (Miscellaneous Attorney Expenses) 
$ 
$ 
$ 
$ 
$ 
$ 
$ 
331.50 
4,848.00 
3,419.00 
8,694.50 
14,172.71 
4,793.64 
557.50 
256.50 
1,018.65 
328.50 
21,127.50 
Expert Witness Fees 
William Humphreys 
Luis A. Prieto-Portar 
Vincent Encomio 
Subtotal (Expert Witness Fees) 
$ 135,468.50 
$ 86,977.50 
$ 1,673.00 
$ 224, 119.00 
Expert Witness Travel Expenses 
William Humphreys 
Luis A. Prieto-Portar 
$ 
$ 
Vincent Encomio $ 
Subtotal (Expert Witness Travel Expenses) $ 
Mr. Humphreys' Mailing and Courier Expenses 
William Humphreys $ 
Subtotal (Mailing and Courier Expenses) $ 
2 
5,519.66 
1,737.11 
641.22 
7,897.99 
791.88 
791.88 

Fact Witness Expenses 
William Ryan 
Juan Garland 
Matt Conneen 
Marc Barnell 
Donald (Sonny) Buchanan 
Subtotal (Fact Witness Expenses) 
TOTAL 
$ 1,652.50 
$ 2,232.70 
$ 561.44 
$ 421.84 
$ 22.00 
$ 4,890.48 
$ 717,586.35 
(See, e.g., appellant's application and brief in support (app. br.); Bd. order <ltd. 7 December 
2016; Bd. corr. ltr. <ltd. 10 February 2017) 
By order dated 7 December 
2016, the Board noted that the liquidation agreement 
between OSI and its subcontractor, Ryan Incorporated Southern (Ryan), provides that the 
parties "will bear attorneys' fees and costs of pursuing this recovery on a pro rata basis in 
proportion to each party's claim to the total of all claims made." The Board directed OSI 
to clarify whether Ryan independently would have met the eligibility requirements for 
fees and expenses under the EAJA and, if so, provide supporting evidence or declaration. 
The government responded to OSI's EAJA application on 27 January 2017. In its 
response, the government conceded, or at least indicated that it does not dispute, that: OSI 
timely filed its application (gov't resp. at 3 ); OSI is a prevailing party in these appeals 
(id.); OSI is an eligible party under the EAJA (id.); and the government's position was not 
substantially justified (id. at 5). For the most part, the government does not contest the 
quantum of hours or the other expenses in OSI's application (see id. at 6-8, 12-16). The 
government contested 25.3 hours of attorney's fees and other expenses as having been 
incurred prior to claim submission (id. at 7, 12, 20-21 ); argued that the hourly rate for 
attorney's fees should be capped at the statutory rate of $125/hour, resulting in a total fee 
amount of$151,050 (id. at 8-12); asserted that travel expenses for attorneys and expert 
witnesses should be reimbursed at government rates (id. at 12-13, 16); and rejected 
entirely OSI's request for compensation for its fact witnesses (id. at 16-19).1 As to its 
position regarding OSl's hourly rates for expert witness compensation, the government 
was vague, providing the rate for one of its own experts and asking the Board to "exercise 
its discretion in fashioning an adjustment addressing" expert witness fees (id. at 15-16). 
The government noted in its response that Ryan would have to demonstrate that it 
1 The government also objected to certain "copy costs" that it alleged to be duplicative 
(see gov't br. at 3, 12-13, 19-21). The Board understands that this "double 
counting" resulted from a mathematical error, in which OSI's copy costs were 
listed by the government on page 3 of its response under both the "Attorney 
Expenses" and "Copy Costs" categories (see gov't br. at 3; app. reply br. at 11-12, 
19-20). Accordingly, we give no consideration to this erroneous amount. 
3 

independently satisfies the eligibility requirements of the EAJA (id. at 4-5). The 
government submitted that an EAJA award to OSI should be structured as follows: 
Category of Fees, Other Expenses 
Attorneys' fees 
Attorney Expensesl2l 
Legal Assistants 
Expert Witness Expensesl3l 
Fact Witnesses 
Copy Costs 
Costs/Charges for Hearing Transcripts 
[Trial Exhibit Preparation] 
Expert Fees to be determined at the Board's 
discretionC4l 
[Expert Witness Travel ExpensesC61 
Amount 
Requested 
$ 151,050.00 
$ 12,271.15 
$ 8,694.50 
$ 791.88 
$ 434.35 
$ 7,877.97 
$ 557.50 
[Silent] 
[TBD5] 
$ [4,756.69] 
TOTAL [TBD] 
(See gov't resp. at 13, 21) The government's proposed EAJA award structure amounts 
to $186,434.04 before adding in reasonable expert witness fees as determined by the 
Board (id). Although not included in the proposed EAJA award structure, the 
government did not contest OSI's request of $328.50 for trial exhibit preparation costs. 
On 10 February 2017, OSI responded to the Board's order and filed its reply to 
the government's response. Attached to OSI's 10 February 2017 reply was an 
affidavit by William Ryan to prove that Ryan independently meets the EAJA size and 
net worth standards (app. reply br., ex. A). In its reply, OSI conceded the issue of the 
inception date and reduced the number of hours claimed, where pertinent, by 25 .3 
hours (app. reply br. at 5). Likewise, OSI conceded $207 of copy costs and another 
2 OSI originally claimed $18,962.82 for Attorney Expenses which includes the following 
amounts which the government stipulates are appropriate: Attorney Travel 
($3,748.19) (gov't resp. at 11-13); Courier/Postage ($1,698.71) (id. at 12); Telephone 
Bills/Conference Calls ($303.51) (id.); Copies ($6,691.67) (id. at 13); and "Westlaw 
Charges" ($6,373.74) (id.). However, because OSI noted in its reply that it did not 
claim "Westlaw Charges" (app. reply br. at 13 n.8), that amount is not included here. 
3 This consists entirely of Mr. Humphrey's expenses ($791.88) (gov't resp. at 16), and 
does not include expert witness travel expenses. 
4 The government noted here the "Office of Personnel Management GS-15 hourly locality 
rates: 2013-$62.06; 2014-$62.68; 2015-$63.31; 2016-$63.94" (gov't resp. at 21). 
5 'TBD" here means "to be determined." 
6 Although not included in its proposed EAJA award structure, the government 
stipulated that $4,756.69 would be an appropriate amount (gov't resp. at 16). 
4 ' 

$94.04 of other miscellaneous attorney expenses that were incurred before the 
inception date (id. at 13-14, 19). Taking into account the parties' respective 
concessions, OSI revised its request as follows: 
Category of Fees, Other Expenses 
Attorneys' Fees 
Legal Assistants 
Copy Costs 
Attorney Travel Costs 
Costs/Charges for Hearing Transcripts 
Telephone Bills/Conference Calls 
Courier/Postage 
Trial Exhibit Preparation 
Expert Witness Fees 
Expert Witness Travel Expenses 
Mr. Humphreys' Mailing and Courier Expenses 
Fact Witness Expenses 
Amount 
Requested 
$ 439,312.00 
$ 8,694.50 
$ 13,965.71 
$ 4,793.64 
$ 557.50 
$ 253.50 
$ 927.61 
$ 328.50 
$ 224,119.00 
$ 7,897.99 
$ 791.88 
$ 4,890.48 
TOTAL $ 706,532.31 
(See app. reply hr. at 21; Bd. corr. ltr. dtd. 10 February 2017) In support of its revised 
request, OSI renewed its arguments for enhanced fees for its attorneys (app. reply br. 
at 5-11 ); expert witness fees (id. at 14-17); travel expenses at market rates, rather than 
government rates (id. at 13-14, 1 7); and expenses for its fact witnesses (id. at 18-19). 
As a threshold matter, we conclude that OSI's EAJA application was timely, 
and the government does not dispute that OSI has adequately demonstrated that it is 
both eligible for and entitled to fees and other expenses. See, e.g., JF. Taylor, Inc., 
ASBCA Nos. 56105, 56322, 13 BCA ~ 35,297 at 173,272; Freedom NY, Inc., ASBCA 
No. 55466, 09-1 BCA ~ 34,031 at 168,329. Furthermore, based on the parties' 
stipulations, we conclude that the following amounts are not in dispute: 
5 

Category of Fees, Other Expenses 
Attorneys' fees 
Legal Assistants 
Copy CostsPl 
Attorney 
Travel Costs 
Costs/Charges for Hearing Transcripts 
Telephone Bills/Conference Calls 
Courier/Postage 
Trial Exhibit Preparation 
Expert 
Witness Travel Expenses 
Mr. Humphreys' Mailing and Courier Expenses 
Fact Witness Expenses 
TOT AL (UNDISPUTED) 
Amount 
Requested 
$ 151,050.00 
$ 8,694.50 
$ 13,965.71 
$ 3,748.19 
$ 557.50 
$ 253.50 
$ 927.61 
$ 328.50 
$ 4,756.69 
$ 791.88 
$ 434.35 
$ 185,508.43 
Accordingly, OSI is entitled to, at the very least, the undisputed amount of 
$185,508.43. We tum now to the disputed portions ofOSl's request, which we 
address seriatim: enhanced attorneys' fees; expert witness fees; travel expenses; and 
expenses for fact witnesses. 
Enhanced Attorneys' fees 
With respect to the question of fee enhancement, the EAJA provides that 
"attomey ... fees shall not be awarded in excess of $125 per hour unless the agency determines 
by regulation that an increase in the cost of living or a special factor, such as the limited 
availability of qualified attorneys or agents for the proceedings involved, justifies a higher 
fee." 5 U.S.C. § 504(b)(l)(A) (emphasis added). Our Board jurisprudence has long held that 
the EAJA "does not confer on the ASBCA discretion to apply cost of living or special factor 
increases without an agency determination so prescribing by regulation." Freedom, NY, Inc., 
ASBCA No. 43965, 09-1BCAii34,097 at 168,595; see also ABS Baumaschinenvertrieb, 
GmbH, ASBCA No. 48207, 01-2 BCA ~ 31,549 at 155,826-27 (declining to enhance fees 
where "the Department of Defense has not issued such a regulation authorizing enhancement 
of fees based on cost of living or any other special factor"); Arapaho Commc 'ns, Inc./Steele 
& Sons, Inc., Joint Venture, ASBCA No. 48235, 98-1 BCA ii 29,563 at 146,544 ("No such 
regulation has been issued by the Department of Defense. We have no authority in this 
instance to award more than [the statutory rate.]"). 
7 Undisputed copy costs ($13,965.71) are based on a comparison ofOSI's revised 
requested amount ($13,965.71) (app. reply br. at 19-20, 21) and the 
government's stipulated amounts ($14,569.64 = $6,691.67 (under attorney 
expenses)+ $7,877.97 (under copy costs)) (gov't resp. at 12-13, 19-21). 
6 

OSI asserts that there is an applicable Department of Defense (DoD) regulation that 
confers such authority upon the Board: the DoD Financial Management Regulation 
(FMR), DoD 7000.14-R, Volume 10, Chapter 12, which provides in relevant part: 
B. Attorney fees and other expenses awarded to 
claimants under EAJA are payable from funds available to the 
DoD activity at the time of the award. Attorney fees payable 
under EAJA are limited to $125 (5 U.S.C. § 504) per hour 
unless the adjudicating officer (deciding official) ... determines 
that a 
higher rate may be allowed under the law. 
DoD FMR, DoD 7000.14-R, vol. 10, ch. 12, ii 120203.B (emphasis added). We do not 
find this language from the FMR to be particularly helpful to OSI's cause. It does not 
confer upon an adjudicating officer any particular authority to enhance fees, nor does it 
determine the circumstances or factors that an adjudicating officer should take into 
account when considering whether to award enhanced fees. Indeed, according to the 
FMR, the adjudicating official may enhance fees only when it determines that such 
enhancement "may be allowed under the law." The law, however, prohibits such 
enhancement by an agency unless "the agency determines by regulation" that such an 
enhancement is warranted. 5 U.S.C. § 504(b)(l)(A). 
The FMR describes, in broad terms, the policy relating to paying parties 
pursuant to EAJA; it does not authorize the Board to award attorneys' fees at more 
than the statutory rate of $125 per hour. OSI has not brought to our attention any other 
DoD regulation, nor are we aware of any, that would confer such authority upon us. 
We conclude that we lack the authority to award OSI enhanced attorneys' fees. 
Expert Witness Fees 
With regard to expert witness fees, the EAJA provides that "no expert witness 
shall be compensated at a rate in excess of the highest rate of compensation for expert 
witnesses paid by the agency involved." 5 U.S.C. § 504(b)(l)(A). In other words, 
OSI's experts should not be paid more than the government's experts. 
The government urges us to apply the DF ARS 23 7 .104 "GS-15 limitation" on 
recovery (see note 4, above) and cites to our decisions in Union Precision & Eng'g, 
ASBCA No. 37549, 92-3 BCA ii 25,028, and Watsky Constr. Co., ASBCA No. 36940, 
92-1BCAii24,694. These decisions rely upon DFARS 237.104(f)(i), which, in the 
version current at the time of contract award, stated in pertinent part: 
(f)(i) Payment to each expert or consultant for 
personal services under 5 U.S.C. 3109 shall not 
exceed the 
highest rate fixed by the Classification Act Schedules for 
grade GS-15 (see 5 CFR 304.105(a)). 
7 

(ii) The contract may provide for the same per diem 
and travel expenses authorized for a Government 
employee, including actual transportation and per diem in 
lieu of subsistence for travel between home or place of 
business and official duty station. 
The DFARS cap on the highest rate to be paid to expert witnesses is a cap on what the 
government is permitted to pay its own expert witnesses. Where, as here, the government 
has admitted that it paid its own experts in excess of the DFARS cap, OSI is entitled to be 
compensated up to the same rate paid by the government. The government has furnished 
us with the rates of one of its experts, Mr. Hudyma, which range between $200-$300 per 
hour (gov't resp. at 15). 
We conclude that the rates proposed by OSI for its experts are generally reasonable 
and, with one exception, fall below the maximum of $300 per hour that the government 
paid to its expert, Mr. Hudyma (app. hr., ex. E). The only expert witness rate that exceeds 
the government's $300 maximum fee rate was the maximal hourly rate of OSI's expert 
Mr. Prieto-Portar, $365 per hour; he billed 56.75 hours at this maximal rate (id.). 
Although OSI urges us to consider Mr. Hudyma's maximal fee merely to be an indicator 
of the reasonableness of its own expert's maximal fee, we have been furnished with no 
evidence that the government paid any of its other expert witnesses at a higher rate than 
that of Mr. Hudyma. Accordingly, we cannot reimburse OSI for Mr. Prieto-Portar's fees 
at a 
rate exceeding that of Mr. Hudyma's highest rate. Adjusting Mr. Prieto-Portar's fees 
using the government's maximum $300 per hour rate results in a reduction of $3,688.75. 
Applying this reduction to the amount requested by OSI, we conclude that OSI is entitled 
to $220,430.25 in expert witness fees. 
Travel Expenses 
The EAJA, with respect to other fees and expenses, provides that the amount 
awarded "shall be based upon prevailing market rates for the kind and quality of the 
services furnished." 5 U.S.C. § 504(b)(l)(A). The government proposes that the amount 
requested by OSI for reimbursement of travel expenses - both for its attorneys and its 
expert witnesses - be reduced to reflect government travel and per diem rates. The 
government cites to no authority for its position. We have consistently awarded 
reasonable travel expenses when the incurred costs are itemized and documented, as here. 
See, e.g., Arapaho, 98-1 BCA ~ 29,563; Jay-Brant Gen. Contractors, ASBCA No. 51891, 
01-1 BCA ~ 31,317. Accordingly, we conclude that OSI is entitled to $4,793.64 for its 
attorney travel expenses, and $7,897.99 for its expert witness travel expenses. 
Fact Witnesses 
The Board has long held that fees of lay witnesses are generally not reimbursable. 
See Watsky Constr. Co., ASBCA No. 41541, 95-2 BCA ~ 27,889. However, certain 
8 

payments to non-employees and consultants may be compensable under the EAJA. See BH 
Servs., Inc., ASBCA No. 39460, 94-1 BCA ii 26,468. The evidence provided by OSI, which 
the government does not dispute, indicates that Mr. Garland was not an employee of either 
OSI or Ryan, but rather a paid consultant (app. br., ex. E). Mr. Garland's fees and expenses, 
amounting to $2,232.70, are reasonable, and therefore reimbursable. Together with 
conceded expenses of $434.35, we conclude that OSI is entitled to $2,667.05 for fact witness 
fees and other expenses. 
CONCLUSION· 
For the forgoing reasons, Optimum is awarded reasonable attorneys' fees and 
other expenses incurred in the course of these appeals, as follows: 
Category of Fees, Other Expenses Amount 
Awarded 
Attorneys' Fees 
Legal Assistants 
Copy Costs 
Attorney Travel Costs 
Costs/Charges for Hearing Transcripts 
Telephone Bills/Conference Calls 
Courier/Postage 
Trial Exhibit Preparation 
Expert Witness Fees 
Expert Witness Travel Expenses 
$ 151,050.00 
$ 8,694.50 
$ 13,965.71 
$ 4,793.64 
$ 557.50 
$ 253.50 
$ 927.61 
$ 328.50 
$ 220,430.25 
$ 7,897.99 
Mr. Humphreys' Mailing and Courier Expenses 
Fact Witness Expenses 
$ 791.88 
$ 2,667.05 
Dated: 20 July 2017 
(Signatures continued) 
9 
TOTAL $ 412,358.13 
DIANA S/DICKINSON 
Adminis{rative Judge 
Armed Services Board 
of Contract Appeals 

I concur 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
OWEN C. WILSON 
Administrative Judge 
Acting 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 on an application for fees and other 
expenses incurred in connection with ASBCA Nos. 58755, 59952, Appeals of 
Optimum Services, Inc., rendered in accordance with 5 U.S.C. § 504. 
Dated: 
10 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals