GRANTED IN PART:  July 10, 2008 
CBCA 982-C(50) 
TIDEWATER CONTRACTORS, INC.,
                                                   Applicant, 
v. 
DEPARTMENT OF TRANSPORTATION,
                                                        Respondent. 
Joseph A. Yazbeck, Jr., of Yazbeck, Cloran & Hanson, LLC, Portland, OR, counsel 
for Applicant.  
David Sett, Division Counsel, Federal Highway Administration, Department of 
Transportation, Lakewood, CO, counsel for Respondent. 
Before Board Judges SOMERS , STERN , and FENNESSY . 
SOMERS , Board Judge. 
Tidewater Contractors, Inc. (Tidewater) has submitted an application for 
reimbursement of fees and costs under the Equal Access to Justice Act, 5 U.S.C. § 504 
(2000) (EAJA), incurred in connection in successfully prosecuting an appeal of a 
contracting officer’s final decision. It seeks an award of $44,448.94, including attorney fees 
and  expenses.   
We grant the application in part.   We award to Tidewater $23,262.50 in attorney fees 
and $1847.94 in other expenses, for a total of $25,110.44.  

   
  
  
   
 
        
 
   
    
   
    
   
            
 
 
    
  
     
2 CBCA 982-C(50) 
Background 
On August 15, 2005, Tidewater appealed the Federal Highway Administration’s 
contracting officer’s final decision dated August 12, 2005, which denied Tidewater’s claim 
for an extension of contract time resulting from the Government’s delay in the issuance of 
the notice to proceed. After denying cross-motions for summary judgment, the Department 
of Transportation Board of Contract Appeals (DOTBCA) held a hearing in Portland, 
Oregon. On March 22, 2007, the Civilian Board of Contract Appeals, the successor board 
to the DOTBCA, issued an opinion granting Tidewater’s claim in part.  Tidewater 
Contractors, Inc. v. Department of Transportation, CBCA 50, 07-1 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 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.  As a result, the contract completion date 
was extended by eighty-nine days.  The Government, which had assessed liquidated 
damages against Tidewater after the appeal had been filed, issued a unilateral modification 
as a result of the decision and remitted to Tidewater $160,200, representing the amount of 
liquidated damages that had been withheld from Tidewater.  
On November 26, 2007, Tidewater filed an application for fees and other expenses 
under the EAJA.  On December 21, 2007, respondent filed a response to Tidewater’s 
application. Subsequently, applicant filed a motion for summary relief, seeking an order 
to compel the Government to pay interest on the amount held for liquidated damages 
pursuant to the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613 (CDA).   The 
Government filed an opposition and cross-motion for summary relief.  We address the 
EAJA application and the CDA interest issue below.   
EAJA Eligibility 
In order to be eligible for an award of attorney fees, an applicant must be the 
prevailing party in the litigation and must meet net worth and employment size 
requirements.  5 U.S.C. § 504(b)(1)(6).  In addition, an applicant must file its EAJA 
applicaton within thirty days of the final disposition of the appeal.  5 U.S.C. § 504(a)(2). 
The undisputed record indicates that Tidewater meets these threshold requirements. 
Pursuant to EAJA, Tidewater is entitled to an award of attorney fees and other 
expenses unless the Board finds that the position of the agency was substantially justified 
or that special circumstances make an award unjust.  Id. § 504(a)(1).  The Government’s 
position is substantially justified if it is justified in substance or in the main, or justified to 
a degree that would satisfy a reasonable person.  Pierce v. Underwood, 487 U.S. 552, 565­

 
 
  
 
 
 
 
  
 
     
    
  
   
  
 
  
    
     
     
 
3 CBCA 982-C(50) 
66 (1988).  The burden of proof in establishing substantial justification falls upon the 
Government.  Id. at 575-76.   
 In the underlying appeal, the Board determined that the Federal Acquisition 
Regulation (FAR) and the contract specifications called for the Government to issue a notice 
to proceed within a specified period of time following bid opening, and concluded that the 
Government failed to do so.  In response to the EAJA application, the Government argues 
that its position was substantially justified because it acted based upon its reasonable belief 
that Tidewater was not ready to begin construction operations in early 2004.  The 
Government asserts that Tidewater’s “factual unreadiness” divested Tidewater of the right 
to an extension of the completion date.  In addition, the Government states that the decision 
to use an “offsite” notice to proceed was consistent with its practice on other contracts. 
Respondent’s Motion in Opposition of Appellant’s Motion for An Award of Fees and Other 
Expenses at 3. 
We reject the Government’s argument.  As the decisions in the underlying appeal 
indicate, nothing in the FAR or the contract authorizes the creation of an “offsite” notice to 
proceed. Likewise, the contract does not give the Government the right to delay the 
issuance of the notice to proceed until it determined that Tidewater was ready to begin 
construction operations. To the contrary, the FAR provision in question, FAR 52.211-10, 
expressly stated that the completion date will be extended by the number of calendar days 
after the seventieth day following bid opening that the contractor received the notice to 
proceed, with limited exceptions not relevant here.  48 CFR 52.211-10 (2007).  Where 
explicit, unambiguous regulations directly contradict the Government’s position, as is the 
case here, we cannot find the Government’s position to be substantially justified.  See, e.g. , 
Geo-Seis Helicopters, Inc. v. United States , 79 Fed. Cl. 74, 78 (2007);  Hillensbeck v. United 
States , 74 Fed. Cl. 477, 481 (2006) (Government’s position conflicted with unambiguous 
statutory definition and regulations);  Loomis v. United States , 74 Fed. Cl. 350, 355 (2006) 
(military failed to comply with its own regulations). 
Award Determination 
Our authority to award fees and expenses is governed by 5 U.S.C. § 504(a)(1), which 
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 . . . . 

 
 
     
  
 
   
    
      
  
   
 
 
   
 
  
4 CBCA 982-C(50) 
Section 504(b)(1)(C) defines an adversary adjudication as, among other things, “any appeal 
of a decision made pursuant to section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 
605) before any agency board of contract appeals . . . .”  
Tidewater seeks its attorney fees and costs in the total amount of $44,448.94.   The 
Government does not dispute Tidewater’s claim for expenses in the amount of $1847.94, 
but does object to the claim for attorney fees as unreasonable and/or not incurred in this 
adversary adjudication.  We examine the application to determine whether the amount of 
fees claimed is warranted.  
A party seeking an EAJA award must include with its application “an itemized 
statement from any attorney, agency, or expert representing or appearing on behalf of the 
party stating the actual time expended and the rate at which fees and other expenses were 
computed.”  5 U.S.C. § 504(a)(2). The award of fees is not automatic; it is a matter for the 
Board’s discretion.  Commissioner, Immigration and Naturalization Service v. Jean , 496 
U.S. 154, 158 (1990). 
Tidewater’s application for $44,448.94 is comprosed of the following amounts:  
Attorney fees incurred by Yazbeck, Cloran & Hanson, LLC $41,061.00 
Expenses incurred by Yazbeck, Cloran & Hanson, LLC     1,847.94 
Anticipated attorney fees for preparation of this petition     1,540.00 
Total $44,448.94 
In support of its claim, Tidewater submitted a detailed fee and expense transaction list, with 
each task identified by date performed, services provided, and hours spent.  Tidewater seeks 
reimbursement for 199.9 hours of legal services performed by five attorneys at their market 
rates.  
The Government objects to the application on several grounds.   The Government 
contests payment of some of the attorney fees sought for preparation of the fee petition. 
Tidewater initially sought eleven hours of “anticipated” attorney fees, 2.5 hours of which 
the Government contended duplicated actual attorney fees claimed.  Tidewater amended its 
application by removing the eleven hours of “anticipated” attorney fees and substituting 
actual attorney fees of twelve hours.  The parties now agree that the total hours claimed is 
199.9 hours and that these hours are not duplicative.  
Nonetheless, the Government maintains that Tidewater is not entitled to 6.4 hours, 
representing fees arising from a separate, parallel appeal under the same contract, which had 
been dismissed at Tidewater’s request on June 28, 2006.  Also, the Government objects to 

  
 
 
        
    
   
 
 
   
    
  
  
    
     
 
 
5 CBCA 982-C(50) 
fees for work on issues arising out of the ongoing road construction project, which is 
unrelated to the current appeal.  These entries represent 7.4 hours of services.  We agree that 
Tidewater is not entitled to fees arising from the separate appeal, nor is it entitled to fees 
arising from issues not included in the appeal before the Board.  Accordingly, we delete the 
hours represented by those unrelated issues and conclude that Tidewater is entitled to 186.1 
hours in attorney fees.  
As to attorney fee hourly rate, Tidewater seeks reimbursement at the rate of $170 per 
hour.  The EAJA provides that ­
The amount of fees awarded under this section shall be based upon prevailing 
market rates for the kind and quality of the services furnished, except that  
. . .  attorney 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, such as the limited availability of qualified attorneys 
or agents for the proceedings involved, justifies a higher fee. 
5 U.S.C. § 504(b)(1)(A). The Department of Transportation has not issued a regulation that 
provides for an award of increased fees, and no special factor has been established, so there 
is no basis for the Board to allow a higher hourly fee.  Accordingly, we calculate the 
attorney fees at 186.1 hours at $125 and find Tidewater is entitled to $23,262.50 in attorney 
fees.   
Entitlement to CDA Interest 
On August 10, 2005, Tidewater filed an uncertified claim for an eighty-nine day 
extension of time to complete the contract. On August 17, 2005, upon receiving the 
contracting officer’s denial of its claim, Tidewater appealed the contracting officer’s final 
decision.  The Government did not begin accessing liquidated damages until August 30, 
2005, the original contract completion date. Upon receiving the Board’s decision awarding 
the eighty-nine day extension of the contract period, the Government returned $160,200 in 
liquidated damages.  
Appellant has filed a motion for summary relief seeking an order requiring the 
Government to pay interest pursuant to 41 U.S.C. § 611 on the eighty-nine days of 
liquidated damages withheld by the Government from contract payments.  The Government 
opposes the request, arguing that the Board lacks jurisdiction to consider Tidewater’s claim 
because Tidewater failed to certify the claim prior to filing the appeal. 

    
 
 
  
     
  
 
   
  
  
      
 
 
  
 
  
 
 
 
 
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6 CBCA 982-C(50) 
We agree that the Board does not possess jurisdiction to entertain the claim, but for 
different reasons from those asserted by the Government.  The assessment of liquidated 
damages is a government, not a contractor, claim.  Technocratica , ASBCA 48060, et al., 
06-2 BCA ¶ 33,316.  The interest provisions of the CDA do not apply to amounts 
wrongfully withheld by the Government.  Id.  However, CDA interest does accrue on a 
claim submitted by a contractor for the remission of such withholdings.  Hettich & Co., 
GmbH , ASBCA 35239, 88-2 BCA ¶ 20,699, at 104,597-98, aff’d in part and remanded , 873 
F.2d 1451 (Fed. Cir. 1989)(table); Hunter Manufacturing. Co. , ASBCA 34209, 87-2 BCA 
¶ 19,903, at 100,690. Thus, interest on liquidated damages could only accrue if Tidewater 
had submitted a claim for such damages, and filed an appeal of the denial of such claim. 
In this case, Tidewater sought an extension of the contract period and filed an appeal 
of the denial of that claim.  Only subsequent to the filing of this appeal did the Government 
assess liquidated damages.  The record contains a letter dated November 1, 2007, from 
Tidewater to the contracting officer which indicates that Tidewater had asserted a claim on 
November 1, 2007, for the payment of interest on the liquidated damages.  See Respondent’s 
Motion in Opposition to Appellant’s Motion for an Award of Fees and Other Expenses, 
Exhibit 3.  In that letter, Tidewater expressly states that “we reserve our right to the claims 
and are awaiting a Contracting Officer’s decision.”  Id. at 2.  Nothing indicates that the 
contracting officer issued a final decision on that claim, or that Tidewater appealed the 
denial of its claim for interest on the liquidated damages. Accordingly, the Board does not 
possess jurisdiction in the appeal underlying this application over the claim for the return 
of liquidated damages.  See, e.g. , AEC Corp. , ASBCA 42920, 03-1 BCA ¶ 32,071 (2002) 
(rejecting appellant’s argument that a previous board decision granting time extensions 
allowed the remission of assessed liquidated damages in the absence of a claim and 
contracting officer’s final decision on that issue).    
Decision 
The cost application is GRANTED IN PART .  We award to Tidewater, as 
reimbursement of attorney fees and costs incurred in connection with the underlying appeal 
and this cost application, the sum of $25,110.44. 
JERI KAYLENE SOMERS 
Board Judge 

 
____________________________ _______________________________  
7 CBCA 982-C(50) 
We concur: 
JAMES L. STERN EILEEN P . FENNESSY 
Board Judge Board Judge