GRANTED IN PART: May 13, 2019
CBCA 6255-C(5540)
MARE SOLUTIONS, INC.,
Applicant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
James R. Mall of Meyer, Unkovic & Scott LLP, Pittsburgh, PA, counsel for
Applicant.
Neil S. Deol, Office of General Counsel, Department of Veterans Affairs, Decatur,
GA, counsel for Respondent.
Before Board Judges ZISCHKAU, RUSSELL, and O’ROURKE.
O’ROURKE, Board Judge.
Applicant, Mare Solutions, filed a timely request for attorneys fees and costs under
the Equal Access to Justice Act.  Mare’s application seeks fees in excess of the statutory rate. 
Because our authority is limited to the statutory rate, we grant the application in part.  
Background Facts
The Project, The Appeal, and the Board’s Decision
The Department of Veterans Affairs (VA) awarded Mare a firm fixed-price
construction contract to build a two-story parking garage adjacent to the VA hospital in Erie,


CBCA 6255-C(5540) 2
Pennsylvania.  When the project was nearly complete, a dispute arose over electrical conduit
that had buckled in several places.  The VA determined that the buckling was due to a lack
of expansion couplings which, it asserted, the contract required Mare to install.  Mare
disputed the VA’s interpretation of the contract and sought declaratory relief at the Board. 
On May 16, 2018, the Board agreed with Mare and granted its appeal.  Mare Solutions, Inc.
v. Department of Veterans Affairs, CBCA 5540, 18-1 BCA ¶ 37,048.  The VA did not appeal
the Board’s decision.   
Mare’s First EAJA Application
On June 14, 2018, Mare filed an application for costs, fees, and interest pursuant to
the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 (2012), for reasonable time and
expenses incurred related to CBCA 5540.  Mare Solutions, Inc. v. Department of Veterans
Affairs, CBCA 5540, 18-1 BCA ¶ 37,048, at 180,352.  We dismissed that application as
premature since the time for filing an appeal had not yet elapsed, and therefore, the decision
was not considered final.  48 CFR 6101.30(b)(2018).  Mare Solutions, Inc. v. Department
of Veterans Affairs, CBCA 6165-C, 18-1 BCA ¶ 37,097.
Mare’s Second EAJA Application
On September 19, 2018, Mare timely re-filed its application for costs in the amount
of $56,431.56.  In its application, Mare requested an enhanced hourly rate for attorneys fees
based upon its counsel’s construction law expertise.  In the alternative, Mare requested a cost
of living adjustment to the standard rate.  The VA responded and asked that we deny the
request in full because its legal posture was substantially justified.  It further asserted that the
Board lacked the authority to grant an enhanced hourly rate for attorneys fees or a cost of
living adjustment to the standard rate.  Mare amended its application on November 26, 2018,
seeking additional fees for work performed during the EAJA application process.  The
revised total amount of Mare’s application was $58,436.51.
Discussion
Mare’s application for costs, fees and interest was filed pursuant to the Equal Access
to Justice Act (EAJA), 5 U.S.C. § 504 (2012). The EAJA provides that – 
an agency that conducts an adversary adjudication shall award, to a prevailing
party other than the United States, fees and other expenses incurred by that
party in connection with that proceeding, unless the adjudicative officer of the
agency finds that the position of the agency was substantially justified or that
special circumstances make an award unjust. 

CBCA 6255-C(5540) 3
5 U.S.C. § 504(a)(1).  The purpose of the law is “to eliminate the barriers that prohibit small
businesses and individuals from securing vindication of their rights in civil actions and
administrative proceedings brought by or against the Federal Government.”  Systems
Integration and Management, Inc. v. General Services Administration, CBCA 3815-C(1512),
et al., 15-1 BCA ¶ 35,866, at 175,441, citing Scarborough v. Principi, 541 U.S. 401, 406
(2004) (quoting H.R. Rep. No. 96-1005, at 9 (1980)).
To recover fees and other expenses under EAJA, an applicant must meet the following
requirements.  It must:
(1) have been a prevailing party in a proceeding against the United States;
(2) if a corporation, have had not more than $7,000,000 in net worth and five
hundred employees at the time the adversary adjudication was initiated;
(3) submit its application within thirty days of a final disposition in the
adjudication;
(4) in that application, (a) show that it has met the requirements as to having
prevailed and size (numbers (1) and (2) above) and (b) state the amount sought
and include an itemized statement of costs and attorney fees; and 
(5) allege that the position of the agency was not substantially justified.
5 U.S.C. § 504(a)(1), (2), (b)(1)(B); Paradise Pillow v.  General Services Administration,
CBCA 5237-C(3562), 17-1 BCA ¶ 36,628, at 178,366; see also Doty v. United States, 71
F.3d 384, 385 (Fed. Cir. 1995); Russell Sand & Gravel Co. v. International Boundary &
Water Commission, CBCA 3781-C(2235), 14-1 BCA ¶ 35,615, at 174,443.
Mare Meets the Requirements of the EAJA
Mare prevailed in one of its two consolidated appeals before the Board, CBCA 5540,
which dealt with determining which party was responsible for the cost of installing expansion
couplings in the parking garage.  The application contains a sworn affidavit from the
President of Mare, attesting to the fact that at the time Mare filed its appeal, and at all times
before and thereafter, Mare employed less than 500 people and had a net worth below
EAJA’s statutory threshold of $7,000,000.  Mare’s second EAJA application was filed
consistent with the Act’s time requirements.  Along with its application in the amount of
$56,431.56, Mare filed an itemized statement of attorneys fees and other costs and expenses,
to include the fees of its two expert witnesses who testified in support of this issue.  Mare’s
EAJA application also asserted that the VA was not substantially justified in its legal

CBCA 6255-C(5540) 4
position.  For these reasons, we find that Mare’s application meets the first four requirements
of the Act.  We turn now to the fifth and final EAJA requirement of whether the VA was
substantially justified in its legal position.  
The VA’s Position Was Not Substantially Justified
Once an applicant establishes it is a prevailing party under the EAJA, “the burden
shifts to the Government to show that its litigating position was substantially justified.” 
Ramcor Services Grp., Inc. v. United States, 185 F.3d 1286, 1288 (Fed. Cir. 1999).  “The test
for whether the Government’s position during the dispute was substantially justified is
whether that position was reasonable.”  Metric Construction Co. v. United States, 83 Fed. Cl.
446, 449 (2008) (citing Pierce v. Underwood, 487 U.S. 552, 565 (1988)).  
The VA cannot meet its burden of establishing that its conduct both before and during
the litigation was substantially justified.  This issue was a matter of contract interpretation. 
In making its decision, the Board relied heavily on the contract specifications and drawings,
as well as the testimony of expert witnesses.  The contract specification regarding expansion
couplings was straightforward.  It required expansion couplings if any one of the following
three circumstances applied: 1) where the electrical conduit crossed an expansion joint in the
concrete, 2) where the contract drawings showed they were required, or 3) where the
National Electric Code (NEC) required their installation.  After a cursory review of the
drawings, we easily dispensed with the first two circumstances.  Expansion couplings were
not shown on the drawings, nor did the drawings show any conduit crossing an expansion
joint.     
With regard to the third circumstance, the parties’ respective electricians came to
different conclusions about whether the NEC required expansion couplings under these
conditions.  In addition to this lay testimony, Mare also presented expert testimony from an
electrical engineer, who testified that since the conduit was located on the underside of the
garage ceiling, and not exposed to direct sunlight, the NEC did not require the installation
of expansion couplings because the conduit would expand at roughly the same rate as the
construction materials to which they were affixed.  Mare also presented expert testimony
from a structural engineer who effectively refuted the VA’s position that a lack of expansion
couplings caused the buckling.  He pointed out that buckling had only occurred in a few
places—the vast majority of conduit experienced no buckling despite the lack of expansion
couplings.  He even recommended an easy fix—to loosen the conduit anchors on either side
of the buckling, which occurred due to the concrete settling, and the failure of the designers
to take that into account in their calculations.  
The VA did not present any expert testimony in response to Mare’s experts, despite
the fact that the VA’s design agent employed engineers who drafted the specifications and

CBCA 6255-C(5540) 5
drawings for the project.  Instead, the design agent produced an additional drawing as a
proposed solution to the buckling.  The new drawing showed the recommended location of
fifty-two different expansion couplings on the conduit.  The VA’s primary technical witness,
an experienced electrician, explained that this new drawing was not necessary at the bidding
stage because electricians did not need expansion couplings shown on drawings in order to
install them.  Rather, it was something they were trained to determine in the field.  He stated
that he would have installed the expansion couplings based on his training, but admitted that
the new drawing “was overkill” because fifty-two couplings seemed excessive.  Given that
the conduit had only buckled in a few places, installing fifty-two expansion couplings not
only seemed excessive, but also expensive.  Nevertheless, Mare was willing to install the
expansion couplings in accordance with the design agent’s new drawing if the VA was
willing to modify the contract and add the additional work, which it was not willing to do.
Based on the plain language of the contract documents and hearing testimony from
expert and lay witnesses, the Board found that the terms of the contract did not require Mare
to install expansion couplings on the electrical conduit.  Nonetheless, in its response to
Mare’s EAJA application, the VA argued that because expert testimony was required to
decide the issue of expansion couplings, the VA was substantially justified in denying the
claim and litigating its position.  We disagree.  First, in failing to call its design agent to
testify, the VA undermined its legal position.  The design agent wrote the specification, and
therefore, was in the best position to answer questions about it.  Second, the design agent’s
proposed solution (a new drawing showing fifty-two expansion couplings) was unreasonable
given the fact that the original drawings showed zero expansion couplings and that the
conduit buckled in just a few places.  Third, one of Mare’s experts testified that the conduit
buckled due to the concrete settling, and that the designers failed to take that into account in
their calculations.  The VA did not offer any expert testimony of its own to rebut this
statement.  Its only witness who addressed this issue admitted he was not an expert on the
issue.  For these reasons, we do not find the VA’s position to be substantially justified, and
the VA has not offered any evidence of special circumstances that would preclude an EAJA
award in this case.
The Amount of Costs and Fees Claimed in Mare’s Application
Under the EAJA, an applicant may recover fees and other expenses, including “the
reasonable expense of expert witnesses, the reasonable cost of any study, analysis, or
engineering report, test or project which is found by the court to be necessary for the
preparation of the party’s case, and reasonable attorney’s fees.”  5 U.S.C. § 504(b)(1)(A).
Mare’s application requests fees for three attorneys and two experts, and related litigation
expenses.  Mare requested an enhanced hourly rate for attorneys fees for Attorney Mall due
to his expertise in the area of construction law.  For 106 hours of work at the enhanced hourly
rate, Mare requested $45,360.35 for Attorney Mall.  As an alternative to the enhanced rate,

CBCA 6255-C(5540) 6
Mare requested  $22,151.29.  This amount represents the statutory rate of $125 per hour plus
a cost of living adjustment for the same number of hours.  Mare did not seek an enhanced
rate for the other two attorneys.  Rather, Mare requested that they receive the statutory rate
with a cost of living adjustment.  For Attorney Wilkinson, who performed 8.7 hours of work,
Mare requested $1689.67.  For Attorney Leonelli, who initially performed 17.8 hours of
work, Mare requested $3568.37.  Mare requested an additional 10.1 hours of work, or
$2024.77, for Attorney Leonelli at the adjusted rate, to draft Mare’s EAJA reply, bringing
the total requested for Attorney Leonelli to $5593.14.
The total hours worked by all three attorneys is 142.60, which we find reasonable and
supported by Exhibit C of Mare’s application.1  However, the VA’s contention that the Board
does not have the authority to grant either an enhanced rate or a rate reflecting a cost of living
adjustment is correct.  The Board’s authority to grant attorneys fees under EAJA is derived
from 5 U.S.C. § 504, not 28 U.S.C. § 2412.  The latter authority applies to courts and
authorizes the court to award fees in excess of the statutory hourly rate of $125 if “the court
determines that an increase in the cost of living or a special factor . . . justifies a higher fee.” 
28 U.S.C. § 2412(d)(2)(A).  The Board’s authority to award attorney fees, on the other hand,
is limited to the statutory hourly rate of $125.  “[A]ttorney or agent 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 . . . justifies a higher fee.”  5 U.S.C. § 504(b)(1)(A)
(emphasis added).  See NVT Technologies, Inc. v. General Services Administration, GSBCA
16195-C(16047), 03-2 BCA ¶ 32,401, at 160,345 (“While a judicial tribunal is free to make
the determination that a fee in excess of the statutory rate of $125 per hour is justified by an
increase in the cost of living or a special factor, an administrative tribunal, such as ours,
cannot do so in the absence of an agency regulation addressing that issue.”).  We are aware
of no such regulation promulgated by the VA.  We are bound by the statutory rate.  Based
on 142.60 hours at the statutory rate of $125 per hour, we award Mare $17,825 for attorneys
fees.      
Both of Mare’s experts fees are reasonable.  Mare paid its electrical engineering
expert, Mr. Edward Wunderly, a total of $4013.17, which represented 33.5 hours of work at
the rate of $120 per hour.  Mr. Wunderly visited the site, produced a report, and testified at
the hearing.  We found his testimony to be persuasive and critical to the Board’s decision. 
Mare’s structural engineering expert, Mr. Charles Churches, testified about the cause of the
buckling and why the design agent’s proposed fix was unsuitable.  Mr. Churches also visited
the site, provided Mare with a report on his findings, and testified at the hearing.  Mare paid
1  We note that pages 108-113 of Exhibit C refer to a different case that is currently 
pending before the Board.  Although these pages were included with Mare’s application for
the parking garage project, we are satisfied that the 132.5 hours billed for work on the
original case here do not include time spent on other cases.  

CBCA 6255-C(5540) 7
Mr. Churches $100 per hour for 18 hours of work, for a total of $1800.  Mr. Churches’
testimony was persuasive and provided the Board with important technical information that
helped shape our decision.  We award Mare the full amount of the experts fees: $5813.17,
and costs in the amount of $1330.85 for expenses incurred during litigation.  In conjunction
with the attorneys fees of $17,825, the total award for all fees and expenses is $24,969.02. 
Decision
For the foregoing reasons, we GRANT the EAJA application in part.  The VA shall
pay $24,969.02 to Mare for attorneys fees and costs. 
   Kathleen J. O’Rourke     
KATHLEEN J. O’ROURKE
Board Judge
We concur:
  Jonathan D. Zischkau                       Beverly M. Russell           
JONATHAN D. ZISCHKAU           BEVERLY M. RUSSELL
Board Judge                                                         Board Judge