DISMISSED WITHOUT PREJUDICE:  October 16, 2007 
CBCA 863-C(50) 
TIDEWATER CONTRACTORS, INC.,
                                                   Appellant, 
v. 
DEPARTMENT OF TRANSPORTATION,
                                                        Respondent. 
Joseph A. Yazbeck, Jr., of Yazbeck, Cloran & Hanson, LLC, Portland, OR, counsel 
for Appellant.  
David Sett, Division Counsel, Federal Highway Administration, Lakewood, CO, 
counsel for Respondent. 
Before Board Judges STERN , FENNESSY , and SOMERS . 
SOMERS , Board Judge. 
Tidewater Contractors, Inc. (Tidewater) has filed an application for fees and 
expenses incurred in connection with an appeal arising from its contract to perform road 
work for the Department of Transportation, Federal Highway Administration (FHA). 
Background 
On March 22, 2007, the Board granted in part Tidewater’s appeal from an FHA 
contracting officer’s final decision denying its claim for an extension of the contract 
performance period.  Tidewater Contractors, Inc. v. Department of Transportation, CBCA 
50, 07-2 BCA ¶ 33,525.  Tidewater filed a motion for reconsideration, seeking the 
remainder of its claim.  On June 29, 2007, the Board granted Tidewater’s motion for 

  
      
 
   
  
 
     
      
  
      
 
   
 
       
 
 
        
 
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2 CBCA 863-C(50) 
reconsideration and amended the decision, granting the appeal in its entirety.  Tidewater 
Contractors, Inc. v. Department of Transportation, CBCA 50-R, 07-2 BCA ¶ 33,618.  
On July 31, 2007, Tidewater filed an application for fees and other expenses under 
the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 (2000).  On September 14, 2007, 
respondent filed a response to Tidewater’s application. On October 2, 2007, Tidewater filed 
a supplement to its application.  
Discussion 
The pertinent section of the EAJA, 5 U.S.C. § 504(a)(2), and Board Rule 30 states 
that a party seeking an award of fees and expenses may submit an application no later than 
thirty calendar days after a final disposition in the underlying appeal.  The Board’s decision 
becomes final (for the purposes of Rule 30) when it is not appealed to the United States 
Court of Appeals for the Federal Circuit within the time permitted for appeal, i.e., 120 days 
from the date of the party’s receipt of a copy of the decision.  41 U.S.C. § 607(g)(1994). 
The law is clear that a claim for fees under the EAJA is premature if made before a 
final adjudication of a case on the merits.  Cogefar-Impresit, U.S.A., Inc. , DOT BCA 2721E, 
99-1 BCA ¶ 30,154, at 149,263 (1998)(citing Vidal v. USPS , 143 F.3d 1475 (Fed. Cir. 
1998)). A party can demonstrate that it is the prevailing party only after the Board’s 
decision becomes final.  Id. at 149,264.  In addition, the Board cannot determine whether 
the position of the United States is substantially justified until its decision is final.  Id. 
(citing Murphy Brothers, Inc. , DOT BCA 1836, 87-1 BCA ¶ 19,500 (DOT BCA 1986).  
As noted above, the Board issued its decision and faxed a copy of the decision to the 
parties on June 29, 2007.  Assuming that appellant received its copy of the decision on that 
date, the Board’s decision does not become final until October 29, 2007. Accordingly, the 
application is premature. 
Decision  
Tidewater’s application for the recovery of costs under the Equal Access to Justice 
Act is DISMISSED WITHOUT PREJUDICE . 
JERI KAYLENE SOMERS 
Board Judge 

____________________________ _______________________________  
   
3 CBCA 863-C(50) 
We concur: 
JAMES L. STERN EILEEN P. FENNESSY 
Board Judge Board Judge