GRANTED IN PART: August 31, 2016
CBCA 4750-C(3552)
IMPACT ASSOCIATES, INC.,
Applicant,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
Andrew K. Wible and William F. Savarino of Cohen Mohr LLP, Washington, DC,
counsel for Applicant.
Michael J. Noble, Office of General Counsel, General Services Administration,
Washington, DC, counsel for Respondent.
Before Board Judges VERGILIO, SHERIDAN,1 and ZISCHKAU.
VERGILIO, Board Judge.
Impact Associates, Inc. (applicant) prevailed in the appeal, Impact Associates, Inc. v.
General Services Administration, CBCA 3552, 15-1 BCA ¶ 35,910, underlying this timely
filed application for recovery pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C.
§ 504 (2012).  Maintaining that it satisfies the requirements in terms of net worth and number
of employees and that the position of the Government was not substantially justified, the
1 Because of the retirement of one judge, the panel has changed from the
underlying appeal.

CBCA 4750-C(3552) 2
applicant seeks to recover $27,025.20 in attorney fees and costs.  The General Services
Administration (GSA) recognizes that the applicant was a prevailing party before this Board,
does not challenge the net worth or size assertions, and does not allege that its position before
the Board was substantially justified.  However, GSA seeks to subtract from the relief sought
the amount expended in initially pursuing the appeal at the Armed Services Board of
Contract Appeals (ASBCA) (which dismissed the matter for lack of jurisdiction) and reduce
the remaining amount by ten percent because the applicant did not recover the full amount
of its claim (it dropped an item of recovery, reducing the amount sought by $40,000).
The Board concludes that the applicant shall recover the full amount sought only for
the period after receipt of the GSA contracting officer’s decision.  The activities prior to
receiving the denial of the claim underlying this appeal, while reasonable and necessary steps
for the applicant to obtain relief, are not compensable.  While the applicant dropped an item
of relief from its claim, the record does not support the conclusion that the award of relief
here should be reduced for that reason.  The applicant recovers $5612.50.
Findings of Fact
By way of background, the applicant held a GSA schedule contract.  The applicant
entered into a no-cost task order contract with the United States Army Corps of Engineers
(Corps) thereunder.  The applicant provided technical assistance support to plan and conduct
forums.  Under the task order, the agreement provided that the applicant could not claim
against the Government for any costs or other damages that the applicant might incur by
Government-required changes, a reduction in participation, or withdrawal.  Under the task
order, the applicant retained mandatory registration and exhibition fees and sponsorship
monies; these were the applicant’s sources of income under the task order.  During an option
year, the Corps required the applicant to eliminate all forms of corporate sponsorship,
otherwise altered the applicant’s ability to recover its costs, and required the applicant to
expend monies it would not have otherwise.  Seeking to recover $215,183.79, in August
2010, the applicant submitted a certified claim to a Corps contracting officer, who denied the
claim.  The applicant appealed to the ASBCA on May 11, 2011.  After twice concluding that
it had jurisdiction, the ASBCA reconsidered the question in light of an opinion by the Federal
Circuit issued on February 23, 2013, Sharp Electronics Corp. v. McHugh, 707 F.3d 1367,
1374-75 (Fed. Cir. 2013) (the court held that the ordering agency contracting officer has no
authority to decide a claim requiring interpretation of the schedule contract), and on April 19,
2013, dismissed the appeal for lack of jurisdiction, concluding that the issue involved
interpretation of the schedule contract.  Impact Associates, Inc., ASBCA 57617, 13 BCA
¶ 35,289.  Thereafter, the applicant referred the claim to a GSA contracting officer, who, in
August 2013, affirmed the claim, seemingly in terms of entitlement only, because payment
did not occur.  Seeking to reduce the contracting officer’s decision to a final judgment, in

CBCA 4750-C(3552) 3
September 2013 the applicant filed at this Board the appeal underlying this case.  GSA
asserted that the claim must be denied on the basis that the alleged damages were not
foreseeable because the contract shielded the agency from liability.  The Board granted the
appeal.  The applicant recovered $175,183.79, the full amount sought at the time because it
had reduced its claim by $40,000, as it no longer pursued relief for what it viewed to be
income lost from sponsorships.
In this proceeding, the applicant seeks to recover $27,025.20, its attorney fees and
expenses; this amount is less than the amount billed by the law firm because rates here are
reduced and the calculations made utilizing the EAJA rate of $125 per hour.  The charges
include amounts relating to claim preparation and the pursuit of the claim with the Corps and
at the ASBCA.  The charges also reflect the costs incurred in formulating the claim for
$215,183.79.  The itemized hours do not indicate specific law firm work relating to the
calculation of lost sponsorship income or research regarding that theory of relief.  For the
period prior to receipt of the GSA contracting officer’s decision (that is, relating to pursuit
of the claim before the ASBCA), the applicant seeks to recover $20,256.25 in adjusted fees
and $1156.45 in expenses.  For the period after receipt of the GSA contracting officer’s
decision, the applicant seeks to recover $5612.50 in adjusted fees.
Discussion
GSA challenges neither the applicant’s eligibility in terms of net worth or size nor the
applicant’s status as a prevailing party.  Similarly, GSA does not contend that its position was
substantially justified.  The Board determines that the applicant qualifies as a prevailing party
eligible to recover fees and other expenses, and that the position of the agency was not
substantially justified.
GSA raises two bases to reduce the recovery sought by the applicant.  First, it
contends that recovery should not extend to fees and expenses incurred in pursuing relief
with the ordering (Corps) contracting officer and at the ASBCA.  Second, it contends that
relief should be reduced to reflect that the claimant did not prevail on its entire claim, as it
obtained relief of $40,000 less than the original claim amount.
Efforts Before the Ordering Agency and the ASBCA
GSA asks that the Board deny recovery for time and expenses incurred prior to the
proceeding before this Board; that is, GSA would disallow the related portion of the relief
sought for two separate reasons; because costs (1) were not incurred in this proceeding and
(2) the applicant did not prevail before the ASBCA.

CBCA 4750-C(3552) 4
In considering the costs and fees provision applicable in civil actions before any court
having jurisdiction of such an action, 28 U.S.C. § 2412, the Federal Circuit has concluded
that attorney fees and expenses may be awarded only for those incurred or expended solely
or exclusively in connection with the case before the court.  In the context of a Government
contract case, “at its earliest, EAJA coverage may begin after the decision of and in pursuit
of an appeal from the decision of a contracting officer.”  Levernier Construction, Inc. v.
United States, 947 F.2d 497, 502 (Fed. Cir. 1991).
With reference to that opinion, Board precedent dictates that the “starting point for
an EAJA claim is receipt of the contracting officer’s final decision.”  TST Tallahassee, LLC
v. Department of Veterans Affairs, CBCA 2472-C(1576), 12-1 BCA ¶ 35,037, at 172,152
(2011).  The law of this case, as determined by the ASBCA, is that the dispute required
interpretation of the schedule contract’s no-cost task order clause such that the Corps
contracting officer could not resolve the dispute.  Impact, 13 BCA, at 173,251.  The decision
of the ordering contracting officer did not create jurisdiction.  The relevant decision is that
of the GSA schedule contracting officer, which serves as the starting point for relief. 
Accordingly, the costs incurred by the applicant related to pursuing relief before the ordering
agency contracting officer and ASBCA predate the period for which this Board permits relief
under EAJA.  For the period after receipt of the GSA contracting officer’s decision, the
applicant seeks $5612.50.  This amount is calculated in accordance with statutory limits and
represents work incurred on the case.
Success on Less Than the Full Amount of the Underlying Claim
GSA asks that the applicant’s recovery reflect that it dropped an item of its claim and
recovered $175,183.70 out of the $215,183.79 initially sought.  GSA suggests a ten percent
reduction of the incurred costs and fees.  The applicant opposes a reduction.
While the Board recognizes that, because of a limited or partial success on the merits,
a reduction in the sought EAJA recovery may be appropriate, the Board declines to reduce
the applicant’s recovery for that reason.  The applicant achieved excellent success on its
claim; the submissions do not indicate that the applicant incurred particular hours or expenses
in terms of the preparation or deletion of the dropped item in the dollar amount of the relief. 
There was a single claim based on improper actions by the ordering agency, with different
elements of the applicant’s losses.  In light of the success on the claim, a reduction in the
EAJA relief would be improper.  Hensley v. Eckerhart, 461 U.S. 424 (1983).
The applicant is entitled to recover $5612.50 of its costs incurred in pursuing the
matter at this Board.

CBCA 4750-C(3552) 5
Decision
The Board GRANTS IN PART the application; the applicant is to recover $5612.50.
______________________________
JOSEPH A. VERGILIO
Board Judge
We concur:
______________________________ ______________________________
PATRICIA J. SHERIDAN JONATHAN D. ZISCHKAU
Board Judge Board Judge