DENIED:  February 20, 2007 
CBCA 63-C (DOT BCA 4459, 4462) 
SILVER ENTERPRISES, 
Applicant, 
v. 
DEPARTMENT OF TRANSPORTATION, 
Respondent. 
Robert W. McGuire, Jr., Senior Associate of Silver Enterprises, Cape Coral, FL, 
appearing for Applicant. 
Felicia McBride, Office of General Counsel, Research & Innovative Technology 
Administration, Department of Transportation, Cambridge, MA, counsel for Respondent. 
Before Board Judges STERN , FENNESSY , and SOMERS . 
STERN , Board Judge. 
We have before us the timely application of Silver Enterprises (Silver or applicant), 
for fees and other expenses in the amount of $29,188.32, under the Equal Access to Justice 
Act (EAJA).  This application follows the decision of the Department of Transportation 
Board of Contract Appeals finding Silver was entitled to be paid $18,728 under a termination 
for convenience of its contract issued by a contracting officer for the Department of 
Transportation Research and Special Programs Administration (RSPA), now called the 
Research and Innovative Technology Administration (RITA or respondent).
1 
1 Silver Enterprises v. Department of Transportation, DOT BCA 4459, 4462, 06-2 
BCA ¶ 33,370.  There was some initial confusion by RITA regarding the due date for  its 
response to Silver’s application.  This resulted in RITA’s filing of a “Motion for 
Clarification” and a response by the applicant requesting award to Silver based on RITA’s 
failure to answer its application for fees and expenses within thirty days. We dismiss 
applicant’s request and find that RITA’s response was timely. 

                                                     
 
   
     
  
   
 
 
 
    
 
  
  
 
    
   
                                          2 CBCA 63-C (DOT BCA 4459, 4462) 
Summary of Earlier Proceedings 
The appeal involved a contract for the periodic maintenance of two GP-9 locomotives. 
Silver was to provide labor and materials during inspections of the locomotives upon their 
delivery to the United States Army’s Military Ocean Terminal Concord (MOTCO) at 
Concord, California. Respondent was obligated to provide adequate facilities to appellant 
for the performance of the contract work.  After one locomotive was received at MOTCO, 
Silver attempted to schedule an inspection.  However, respondent was unable to make the 
inspection facility available.  Several other unsuccessful inspection attempts followed. 
Eventually, RITA terminated the contract for convenience. 
The record reflected that Silver incurred costs in attempting contract performance. 
The evidence indicated that Silver made numerous efforts to inspect the locomotives and it 
incurred costs in making preliminary arrangements for inspections.  In addition, Silver 
obtained test equipment and sent a technician to the site in preparation for testing.  The 
record also disclosed numerous contacts between Silver and RITA in making and canceling 
arrangements for locomotive inspections. 
After the contract was terminated, Silver was invited to submit a termination 
settlement proposal.  Silver submitted a request for payment of the full contract amount of 
$48,582 but stated that it was willing to settle for fifty percent of this amount, or $24,291. 
Silver failed to submit any documentation in support of its proposal.  RITA rejected the 
proposal and offered a settlement of $4027.90, which was later increased to $5220.23. 
Applicant kept no time records.  The only items of evidence before the Board were 
the testimony of Silver’s owner, an invoice for the purchase of two airline tickets, and 
numerous items of correspondence that demonstrated the efforts Silver had made in 
attempting contract performance. 
In addition to its claims for payment under the termination for convenience clause, 
applicant argued before the board that the termination for convenience itself was not valid. 
The board rejected this claim. 
As to applicant’s monetary claim, the board found that Silver had proven that it 
incurred costs in attempting to perform the contract.  However, there was no accurate way 
of making a definite determination of the damages since Silver did not track its costs.  The 
board  found that it could make a reasonable determination of the amount due.  Using a jury 
verdict approach the board estimated the amount of hours, based on the record, that Silver 
expended in attempting to perform various tasks in arranging for contract performance.  The 

                                                     
 
   
      
 
  
  
  
    
       
   
  
     
  
 
  
 
 
 
 
   
 
  
 
                                          3 CBCA 63-C (DOT BCA 4459, 4462) 
board concluded that Silver’s principals had invested 180 hours of work on the contract.  The 
board applied a reasonable rate, including overhead and profit, of $100 per hour to these 
hours. In addition, the board found Silver entitled to $728 for the cost of two airline tickets. 
Silver was found entitled to be paid $18,728. 
The Application 
Applicant seeks $29,188.32 for fees and expenses it alleges it incurred subsequent 
to the termination for convenience. Silver claims that this amount would reimburse it for the 
time spent by Silver’s two principals in the preparation and presentation of the adversary 
adjudication. Silver alleges it was the prevailing party and that respondent’s position was not 
substantially justified. 
To be eligible for an award of fees and expenses under the Equal Access to Justice 
Act (EAJA), an applicant that is an unincorporated business, a partnership, or a corporation 
may not have a net worth in excess of $7,000,000 or more than 500 employees at the time 
of the initiation of the adversary adjudication. 5 U.S.C. § 504(b)(1)(B) (2000). Along with 
its application Silver filed a statement that it has never had more than two employees and that 
its net worth was well below the $7,000,000 threshold.  A personal financial statement was 
filed in support of this statement. RITA has not disputed these claims and we find that 
applicant meets the statutory criteria. 
The Equal Access to Justice Act requires that fees and other expenses incurred in 
connection with a proceeding be awarded to a party other than the United States if that party 
is the prevailing party in the litigation and if the position of the United States was not 
substantially justified.  A party is the prevailing party if it is successful on any significant 
issue in the litigation that achieves some of the benefit sought.  Hensley v. Eckerhart , 461 
U.S. 424, 433  (1983); Digital Services Group, Inc., DOT BCA 1817E, 92-2 BCA ¶ 24,786, 
at 123,648 (1991).  The Department of Transportation Board of Contract Appeals  found the 
applicant entitled to be paid $18,728 on its claim of over $61,000.  RITA’s settlement offer, 
as revised, was in the amount of $5,220.23.   Silver clearly was successful in achieving a 
portion of what it sought.  We find that Silver was the prevailing party in the litigation. 
Silver, as the prevailing party, may recover on its application unless we find that 
respondent’s position was substantially justified.  5 U.S.C. § 504(a)(1).  The Government’s 
position is substantially justified if it had a reasonable basis in law and fact to a degree that 
could satisfy a reasonable person.  Pierce v. Underwood, 487 U.S. 552, 565 (1988). 
“‘[P]osition of the agency’ means, in addition to the position taken by the agency in the 
adversary adjudication, the action or failure to act by the agency upon which the adversary 

                                                     
 
     
       
 
  
 
 
           
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                                          4 CBCA 63-C (DOT BCA 4459, 4462) 
adjudication is based.”  5 U.S.C. § 504(b)(1)(E); Doty v. United States , 71 F.3d 384, 386 
(Fed. Cir. 1995).  The Government bears the burden of proving the reasonableness of its 
position.  Helfer v. West , 174 F.3d 1332, 1336 (Fed. Cir. 1999); Trundle v. Bowen , 830 F.2d 
807, 809 (8th Cir. 1987).  In making our determination we must look at the “entirety of the 
government’s conduct and make a judgment call whether the government’s overall position 
had a reasonable basis in both law and fact.”  Chiu v. United States , 948 F.2d 711, 715 (Fed. 
Cir. 1991). 
Here, RITA made several requests to Silver for documentation in support of its 
termination claim. Silver provided no records of the time it spent on contract performance. 
RITA rejected Silver’s various settlement proposals based upon its failure to support its 
claimed costs.  The Department of Transportation Board of Contract Appeals found that 
applicant failed to keep adequate records, so the exact amount of time spent by appellant on 
contract work could not be determined.  The board made an award based on the jury verdict 
approach.  The board had to estimate Silver’s costs due to the inadequate supporting 
documentation.  The record before the board included the sworn testimony of Silver’s owner. 
RITA did not have this evidence before it.  RITA stated that it would only pay those costs 
that were supported by appropriate documentation.  RITA made a settlement determination 
of $5220.23 (as revised).   We cannot find that this position was unreasonable in light of 
applicant’s failure to keep adequate records of its costs. RITA has carried its burden.  We 
find its position was substantially justified. 
Decision 
The application is DENIED . 
JAMES L. STERN 
Board Judge 

                                                     
 
_______________________________ ______________________________ 
                                          5 CBCA 63-C (DOT BCA 4459, 4462) 
We concur: 
EILEEN P. FENNESSY JERI K. SOMERS 
Board Judge Board Judge