ARMED SERVICES BOARD OF CONTRACT APPEALS 

Application Under the Equal Access ) 

to Justice Act -- ) 

) 

Military Aircraft Parts ) 

) 

Under Contract No. SPM4A7-10-M-8108 ) 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 59632 

Mr. Robert E. Marin 

President 

Daniel K. Poling, Esq. 

DLA Chief Trial Attorney 

Edward R. Murray, Esq. 

Jason D. Morgan, Esq. 

Trial Attorneys 

DLA Aviation 

Richmond, VA 

OPINION BY ADMINISTRATIVE JUDGE O'SULLIVAN ON APPLICATION 

UNDER THE EQUAL ACCESS TO JUSTICE ACT 

Military Aircraft Parts (MAP) has filed an application for expenses under the 

Equal Access to Justice Act (EAJA), 5 U.S.C. § 504(a), related to the subject appeal. 

The government has filed in opposition to any award, contending that MAP is not a 

"prevailing party" under the Act and that the claimed expenses are not reasonable. 

FINDINGS OF FACT 

MAP filed its notice of appeal and complaint on 15 October 2014 and elected to 

proceed under Rule 12.2, 1 the Board's expedited procedure for small claims. The 

appeal was taken from the contracting officer's deemed denial ofMAP's 20 May 2014 

claim for $76,150 arising from the parties' dispute over whether MAP had submitted a 

conforming first article under Contract No. SPM4A7-10-M-8108 (the contract) with 

the Defense Supply Center, Richmond, for manufacture and delivery of Fuel Data 

Manifold Links for the F-4 aircraft. 

1 The Contract Disputes Act, implemented by Board Rule 12.2, provides that this 

decision shall have no value as precedent, and in the absence of fraud shall be 

final and conclusive and may not be appealed or set aside. 
The amount requested in MAP's claim consisted of $75,000, the contractually 

specified price for first article testing, and $1, 150 in independent laboratory retesting 

costs. MAP alleged that the government made two errors in rejecting MAP's first 

article. The first alleged error had to do with whether the test sample met a 

dimensional requirement, and the second had to do with a requirement for electrical 

contacts which MAP stated was vague but easily clarified and fixable. According to 

MAP, the test sample was subsequently returned to MAP, retested by Dayton T. 

Brown, Inc., an independent engineering and testing laboratory, and found to meet the 

dimensional requirement. 

By notice dated 21 November 2014, MAP moved to dismiss its appeal with 

prejudice "because the dispute will be settled by the attached agreement." Attached to 

MAP's motion was a draft modification to the contract increasing the amount by 

$76, 150 in complete settlement of MAP' s claims under the contract. On 25 November 

2014, the Board dismissed MAP's appeal with prejudice based on the parties' 

settlement. 

On 25 December 2014, MAP transmitted to the Board an application for an 

EAJA award in the amount of $267.41. MAP asserted that it was a prevailing party 

since in both its claim and its complaint, it requested the sum of$76,150, and the 

government agreed to payment in full of this amount. MAP attached receipts for its 

purchase of two legal reference books, Formation of Government Contracts, Fourth 

Edition, and Administration of Government Contracts, Fourth Edition. MAP stated 

that the books were necessary "to study and logically prepare [MAP's] complaint." 

In its opposition, the government asserts that MAP does not qualify as a 

prevailing party under EAJA, MAP expressly waived and released any right to an 

EAJA award under the parties' settlement agreement, and the cost of buying two 

books that can be used for many purposes other than the instant appeal is not a 

reasonable expense of litigating this appeal. 

DECISION 

We have held that in order to qualify as a "prevailing party" under the EAJA, it 

is not enough that a party has achieved its desired result. Rather, MAP must show that 

there was a Board decision sustaining the appeal, or a Board decision in the nature of a 

consent judgment, effecting a material alteration in the legal relationship of the parties. 

Lasmer Industries, Inc., ASBCA No. 56411, 10-2 BCA iJ 34,491 at 170,123 (citing 

Brickwood Contractors, Inc. v. United States, 288 F.3d 1371, 1380 (Fed. Cir. 2002)). 

In Brickwood, the Federal Circuit applied the Supreme Court's decision in 

Buckhannon Board and Care Home, Inc. v. W. Va. Dept. of Health and Human 

Resources, 532 U.S. 598 (2001), to reverse a Court of Federal Claims decision 

2 
allowing the recovery of attorneys' fees under EAJA. The court stated that the 

Buckhannon decision rejected the "catalyst theory," granting prevailing party status to 

a plaintiff if it achieves the desired result because its lawsuit brought about a voluntary 

change on the part of the defendant, because it lacks the "necessary judicial 

imprimatur" on the change in the parties' legal relationship to establish "prevailing 

party" status. Brickwood, 288 F.3d at 1376. 

In this appeal, we neither issued a decision sustaining the appeal nor in any 

other way acted so as to effect a material alteration in the parties' legal relationship. 

Accordingly, MAP has not shown that it was a prevailing party for purposes of its 

application. We thus find it unnecessary to reach the government's additional 

arguments. 

CONCLUSION 

For the reasons stated, MAP's application for an EAJA award is denied. 

Dated: 25 February 2015 

/i/d+tu~~ Administrative Judge 

Armed Services Board 

of Contract Appeals 

I certify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals on an application for fees and other 

expenses incurred in connection with ASBCA No. 59632, Appeal of Military Aircraft 

Parts, rendered in accordance with 5 U.S.C. § 504. 

Dated: 

3 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals