ARMED SERVICES BOARD OF CONTRACTAPPEALS ApplicationUnderthe Equal Access )

to Justice Act

-- ) ) Military AircraftParts ) ) Under ContractNo. SPM4A7-10-M-8108 )
APPEARANCEFORTHEAPPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 59632

Mr. Robert E. Marin

President
Daniel K. Poling, Esq.

DLA ChiefTrial Attorney EdwardR. Murray, Esq. Jason D. Morgan, Esq.

Trial Attorneys DLAAviation Richmond, VA
OPINION BYADMINISTRATIVEJUDGE O'SULLIVAN ONAPPLICATION UNDERTHEEQUAL 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 "prevailingparty" underthe Act andthatthe claimed expenses are not reasonable.
FINDINGS OF FACT
MAP filed its notice ofappeal and complaint on 15 October 2014 and elected to proceed underRule 12.2,1the 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 ContractNo. SPM4A7-10-M-8108 (the contract) with the Defense Supply Center, Richmond, for manufacture and delivery ofFuel Data Manifold Links for the F-4 aircraft.

1 The ContractDisputes Act, implementedby Board Rule 12.2, provides thatthis decision shall have no value as precedent, and in the absence offraud 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 specifiedprice for first article testing, and $1,150 in independent laboratory retesting costs. MAP alleged that the government madetwo 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 hadto 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 settledby the attached agreement." Attached to MAP's motion was a draft modification to the contract increasing the amount by $76, 150 in complete settlement ofMAP's claims underthe 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 aprevailingparty since in both its claim and its complaint, it requested the sum of$76,150, and the government agreed to payment in full ofthis amount. MAP attached receipts for its purchase oftwo legal reference books, Formation of Government Contracts, Fourth Edition, andAdministration 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 ofbuying two books that can be used for many purposes otherthan the instant appeal is not a reasonable expense oflitigating this appeal. DECISION
We have held that in order to qualify as a "prevailingparty" 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 ofa consentjudgment, effecting a material alteration in the legal relationship ofthe parties. LasmerIndustries, Inc., ASBCA No. 56411, 10-2 BCA

## iJ 34,491 at 170,123 (citing Brickwood Contractors, Inc. v. UnitedStates, 288 F.3d 1371, 1380 (Fed. Cir. 2002)).
In Brickwood, the Federal Circuit applied the Supreme Court's decision in BuckhannonBoardandCare Home, Inc. 

### v. W. 

### Va. Dept. of Health andHuman Resources, 532 U.S. 598 (2001), to reverse a Court ofFederal Claims decision 2allowing the recovery ofattorneys' fees underEAJA. The court stated that the 

### Buckhannon decisionrejected the "catalysttheory," granting prevailingparty status to a plaintiffifit achieves the desired result because its lawsuitbrought about a voluntary change on the part ofthe defendant, because it lacks the "necessaryjudicial 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 otherway 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 ofits application. We thus find it unnecessary to reach the government's additional arguments. CONCLUSION
Forthe reasons stated, MAP's application for an EAJA award is denied. Dated: 25 February 2015

# /i/d+tu~~ Administrative Judge Armed Services Board ofContractAppeals
I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals on an application for fees and other expenses incurred in connection with ASBCA No. 59632, Appeal ofMilitary Aircraft Parts, rendered in accordance with 5 U.S.C. § 504. Dated:



### 3 JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals