ARMED SERVICES BOARD OF CONTRACT APPEALS 
Application under the Equal Access 
to Justice Act of--
Environmental Safety Consultants, Inc. 
Under Contract No. N62470-95-C-2399 
APPEARANCE FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 51722 
Mr. Peter C. Nwogu 
President 
Ronald J. Borro, Esq. 
Navy Chief Trial Attorney 
Ellen M. Evans, Esq. 
Senior Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE FREEMAN ON RECONSIDERATION OF 
DENIAL OF AN EQUAL ACCESS TO JUSTICE ACT A WARD 
In Environmental Safety Consultants, Inc., ASBCA No. 51722, 11-2 BCA 
~ 34,848, we sustained this appeal from a default termination that occurred eleven months 
after the default without a new and reasonable completion date having been set. Pursuant 
to the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504, the appellant (ESCI) applied 
for an award of fees and expenses incurred in the litigation. In Environmental Safety 
Consultants, Inc., ASBCA No. 51722, 13 BCA ~ 35,352, we found that the government's 
position was substantially justified and denied the application. Familiarity with these 
decisions is presumed. ESCI now moves for reconsideration of our decision denying its 
EAJA application. 
ESCI begins its motion with a litany of alleged government actions and failures to 
act allegedly causing delay and increased costs in performance of the contract. In a letter 
to the government dated 7 April 1997, ESCI, proposed a contract price increase of 
$205,463.60 for the delays and increased costs (R4, tab 12). Any and all such claims 
against the government, however, were settled by the parties on 24 June 1997 in bilateral 
Modification No. P00006. See Environmental Safety Consultants, Inc., 11-2 BCA 
~ 34,848 at 171,430. 
Modification No. P00006 required ESCI to have the contract work completed by a 
subcontractor by 30 June 1997. ESCI's subcontractor (Rickmond), however, left the site 
on 16 June 1997 for lack of payment. No work was performed on the contract thereafter. 
11-2 BCA ~ 34,848 at 171,430. ESCI contends that it could not pay Rickmond because 
the government did not pay its 23 June 1997 invoice. The government did not pay 

ESCI's 23 June 1997 invoice because it had been notified by the payment bond surety on 
14 May 1997 that the surety was processing payment for four suppliers on Contract 
No. N624 70-95-C-2399 who had not been paid by ESC I. 
The surety's notice to the government put in question the validity of the prompt 
payment certification on ESCI's 23 June 1997 invoice. The prompt payment 
certification was required on every invoice by the FAR 52.232-5, PAYMENTS UNDER 
FIXED-PRICE CONSTRUCTION CONTRACTS (APR 1989) clause of the contract. Paragraph 2 
of the required certification stated in relevant part: "Payments to subcontractors and 
suppliers have been made from previous payments received under the contract, and 
timely payments will be made from the proceeds of the payment covered by this 
certification in accordance with subcontract agreements." (R4, tab 1 at 68) 
On 30 June 1997, the contracting officer returned ESCI's 23 June 1997 invoice 
unpaid to ESCI with the following explanation: 
Your prompt payment certification is invalid as we have 
received notification from your surety that they have paid 
several of your subcontractors on this project. 
Please contact the surety to discuss an agreeable solution to 
this problem as no invoices will be paid until it is resolved. 
11-2 BCA -,r 34,848 at 171,430. 
Considering the 14 May 1997 notice of the payment bond surety, the contracting 
officer was substantially justified in both fact and law for withholding any further 
payments to ESCI until the veracity of its certification as to the disposition of prior 
invoice payments could be resolved. 1 
ESCI contends that the contracting officer acted in bad faith and failed "to do 
diligent duty" when she did not ask Rickmond to complete the work after its overdue 
invoices were paid by the surety. We disagree. ESCI was the prime contractor and 
pursuant to Modification No. P00006 was responsible, not the government, for procuring 
a subcontractor to complete the work. 
ESCI also contends that the government is precluded by res judicata from arguing 
that its position was substantially justified when it withdrew voluntarily its appeal to the 
1 ESCI's Table A in its 3 September 1997 answer to the government's motion to strike 
ESC I' s motion for reconsideration shows total costs claimed by Rickmond from 
October 1996 through June 1997 of $171,067 for the contract work and total 
payments by ESCI to Rickmond for that work of$13,680. 
2 

Federal Circuit ofthe Board's 28 September 2011 decision on the merits of the default 
termination. We disagree. Res judicata has no application because the decision appealed 
to and then withdrawn from the Federal Circuit was our decision on the merits which did 
not and could not address the issue of whether the government position was substantially 
justified for EAJA purposes. 
We have considered ESC I' s other arguments and find them without merit. On 
reconsideration of our decision denying ESCI's application in Environmental Safety 
Consultants, Inc., 13 BCA ~ 35,352, we affirm that decision. 
Dated: 3 December 2013 
I concur 
mb'n~~ 
MONROE E. FREEMAN:JR:4 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
~4£----MARK N. STEMPLER 
Administrative Judge 
Acting 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 No. 51722, Appeal of Environmental Safety 
Consultants, Inc., rendered in accordance with 5 U.S.C. § 504. 
Dated: 
3 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals