# In the United States Court of Federal Claims

No. 13

- 378C

(Filed: Ju ly 23 , 2014 )

**********************************

BCPEABODY CONSTRUCTION SERVICES, INC.,

Plaintiff,

v.

UNITED STATES,

Defendant,

and

EDENS CONSTRUCTION CO., INC.,

Defendant

- Intervenor.

*********************************** ) ) Application by a prevailing plaintiff ) for an award of attorneys’ fees and ) expenses pursuant to the Equal Access ) to Justice Act, 28 U.S.C. § 2412; no ) substantial justification for the ) government’s position; hourly rate s ; ) expenses ; bond premiums as expenses ) ) ) ) ) ) ) ) ) ) )

James E. Krause, Jacksonville, Florida, for plaintiff.

Elizabeth Anne Speck, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With her on the briefs were Stuart F. Delery, A ssistant Attorney General, Civi l Division, Robert E. Kirshman, Jr.

, Director, and Kenneth M. Dintzer, A cting Deputy Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. Of counsel was Carolyn J. Fox, Assistant District Counsel, U nited States Army Corps of Engineers, Jacksonville, Florida.

OPINION AND ORDER

LETTOW, Judge.

A judgment on the administrative record was issued in plaintiff’s favor in this post

- award bid protest contesting a construction contract awarded by the Department of the Army, United States Army Corps of Engineers, Jacksonville District (“the Corps” or “t he government”) for work in Okeechobee County, Florida. Now before the court is an application by plaintiff, BCPeabody Construction Services, Inc

. (“BCPeabody ” ), for an award of attorneys’ fees andexpenses pursuant to the Equal Access to Justice Act (“EA JA”), 28 U.S.C. § 2412

, and a Bill of

Costs submitted pursuant to R ule 54(d) of the Rules of the Court of Federal Claims (“RCFC”)

.

BACKGROUND

The Corps issued a solicitation seeking proposals to construct a cutoff wall, repave a dike crown, and perform ancillary work in Okeechobee County, Florida. BCPeabody Constr. Servs.,

Inc. v. United States , 112 Fed. Cl. 502, 505 (2013). The solicitation was issued pursuant to 48 C.F.R. (“ FAR ”) § 15.101

- 2, invoking a lowest

- price technically acceptable source selec tion

process. Id. The solicitation also stated that the “government intend[ed] to evaluate proposals

and award a contract without discussions with offerors (except clarifications as described in FAR § 15.306(a) ) .” Id. T o be considered technically accep table, offerors were required to submit project information sheets “to demonstrate that the offeror and i t s subcontractors had experience performing the type of work requested in the solicitation,” i

. e ., cutoff wall experience and earthen embankment experi ence. Id. Regarding the cutoff wall experience, one project information sheet had to specifically demonstrate prior experience “penetrating, excavating, and backfilling through an obstruction that could not be removed by a typical backhoe or excavator

du ring cutoff wall construction.” Id. In its proposal, BCPeabody identified Bauer Foundation Corporation (“Bauer”) as its major subcontractor for the cutoff wall work and submitted two project inf ormation sheets to demonstrate Bauer’s cutoff wall experience. Id

. BCPeabody, however, mistakenly submitted two copies of the same project information sheet, and the

submitted project information sheet failed to make the specific showing related to prior experience “penetrating, excavating, and backfilling through an obstruction that could not be removed by a typical backhoe or excavator during cutoff wall construction.” Id

. Accordingly, BCPeabody’s proposal was found to be technically unacceptable, and it was excluded from the competition. Id. at 505

- 06. BCPeabody’s proposal was the lowest

- priced proposal and it was technically acceptable in all other respects. Id. at 506. Notably, the awardee , Edens Construction Co., Inc. (“Edens”), also proposed to use Bauer as a major subcontractor a nd

submitted the requisite detail s regarding Bauer’s past experience with cutoff wall construction

. Id. As a result, the contracting officer was well aware that Bauer possessed the necessary prior experience to successfully perform the work. Id. B ut fo r the duplication of one project

information sheet and the omission of a second project information sheet, BCPeabody would

have received the contract. Id.

After learning that another offeror received the contract, BCPeabody requested a debriefing from the contracting officer. BCPeabody, 112 Fed. Cl. at 506. BCPeabody first learned of its copying error at this debriefing

. Id. It submitted an agency

- level protest which

was den ied and then filed a protest with the Government Accountability Office (“GAO ”). Id. at 507. The GAO agreed with BCPeabody t hat the contracting officer had abused her discretion in failing to clarify the clerical mistake, given her knowledge that Bauer was well

- qualified to perform the subcontracted work. Id. The GAO nonetheles s denied relief , finding that BCPeabody’s protest was deficient because BCPeabody had pro f fered to GAO a project information sheet from Bauer Foundations Canada, a separate legal entity from Bauer, but it only

had a letter of commitment from Bauer to perform the work. Id.

2BCPeabody the reafter f iled suit in this court on June 6, 2013, seeking a preliminary injunction to bar the Corps from proceeding wit h the contract awarded to Edens

. BCPeabody, 112 Fed. Cl. at 507. The court granted the prelim inary injunction, id. , and ultimately granted BCPeabody ’s Motion for Judgment o n the Administrative Record, set ting aside the Corps’ contract award, id. at 514. The Corps was directed to restore BCPeabody to the competition and reevaluate the proposals th at were submitted. Id.

The court’s decision rested upon a finding that the copying mistake was a “minor or clerical error” within the terms of FAR § 15.306(a), which meant that the contracting officer could have allowed BCPeabody to clarify its propos al without having to engage in discussions. BCPeabody , 112 Fed. Cl. at 512

- 13. In making this determination

, the court noted that the missing project information sheet did not “bear on price or involve information that the contracting officer did not alr eady know. Inclusion of a second project information sheet would not have materially altered the terms of BCPeabody’s offer. . . . [T]he contracting officer was well aware that Bauer was a qualified subcontractor.” Id

. at 511. The court further held tha t, while the contracting officer had discretion under FAR § 15.306(a) to c larify the mistake, it was

unreasonable and an abuse of discretion for her to fail to do so in the circumstances

. Id. at 512 ( “Once the contracting officer became awar e of the suita bility of Bauer’s past experience with cutoff wall construction, she could not reasonably rate Bauer differently for BCPeabody as

contrasted to Edens [

, the awardee].” ).

BCPeabody now seeks an award of attorneys’ fees and expenses in the amount of $47,7 16.06, pursuant to the EAJA, see Pl.’s Mot. & Application for Award of Att’ys’ Fees and Related Nontaxable Expenses (“Pl.’s Mot. for Fee s”) at 4, ECF No. 71. It has also submitted a

Bill of C osts total ing $19,176.85 , pursuant to R CFC 54(d) . Pl.’s Bill of Costs and Mem. in Support (“Pl.’s Bill of Costs”) at 1

, ECF No. 72.

ANALYSIS

I. Attorney s ’ Fees and Other Expenses

Congress enacted EAJA “ ‘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. ’” Scarborough v. Principi , 541 U.S. 401, 406 (2004) ( quoting H.R. Rep. No. 96

– 1005, at 9 (1980) ). EAJA provides a me ans by which a qualifying party might receive reasonable attorne ys’ fees and related expenses and costs for prevailing in litigation involving the United States. Id . at 406

- 07 ; see also Commissioner, Immigration & Naturalization Serv. v. Jean , 4 96 U .S. 154, 155 n.1 (1990)

.

To obtain an award of attorneys’ fees and related expense s under EAJA five criteria must

be satisfied:

(1) T he applicant must be a “prevailing party” in a suit against the United States; (2) T he governmen t’s position must not hav e been “substantially justified ” ; (3) N o “special circumstances ” may exist which would render an award unjust;

3(4) A n EAJA fee application must have been submitted to the court within thirty days of final judgment in the action and be supported by an itemized statement; and (5) A qualifying party must, if a corporation or other organization, not have had more than $7,000,000 in net worth or 500 employees at the time the adversarial adjudication

was initiated.

See Jean

, 496 U.S. at 158 (citing and quoting 28 U.S.C. § 2412(d)(1), (2 ) ) ; KWV

, Inc. v. United

States , 113 Fed. Cl. 534, 537 (2013); Metropolitan Van & Storage, Inc. v. United States

, 101

Fed. Cl. 173, 185 (2011)

. BCPeabody bears the burden of establishing that it meets these requirements except as to the second criterion; the governm ent has the burden to show that its position was substantially justified. See White v. Nicholson

, 412 F.3d 1314, 131 6 (Fed. Cir. 2005) ; Hillensbeck v. United States

, 74 Fed. Cl. 477, 479

– 80 (2006) ; Al Ghanim Combined Grp.

Co. v. United States

, 67 Fed. Cl. 494, 498 (2005)

.

The government does not challenge BCPeabody’s assertions that it was a prevailing party, that no special circumstances exist that would render an award unjust, that its EAJA application was time ly f iled, or that it complies with the net worth and size restrictions and is thus a qualifying party for an EAJA award

. See Pl.’s Mot. for Fees 3

- 4 ; Def.’s Resp. to Pl.’s Application for Fees and Costs Pursuant to the Equal Access to Justice Act (“Def.’s Opp ’n” ),

ECF No. 73. 1 The government does, however, contend that the government’s positi on was substantially justified

, or , alternative ly , that if the court finds that its position was not substantially justified and decides to award fees and expenses

, then BCPeabody should be limited to the statutorily provided hourly rate for its attorneys ’ fees as contrasted to the higher

rate s it seeks . Def.’s Opp’n at 5

- 11.

A . Substantial Justification

To demonstrate that its position was “substantially justified,” th e government mu st show that its position was “ ‘justified in substance or in the main’

— that is, justified to a degree that could satisfy a reasonable person

. ” Pierce v. Underwood

, 487 U.S. 552, 56 4

- 6 5 (1988)

. Rather

than examin e the government’s stance upon every individual issue addressed in the case, Gargoyles, Inc. v. United States

, 45 Fed. Cl. 139, 148 (1999) , the court must determine “whether the governmen t’ s overall position [both prior to and during the litigation] had a reason able basis

in both law and fact

, ” Chiu v. United States

, 948 F.2d 711, 715 (Fed. Cir. 1991); see also Blakley

v. United States

, 593 F.3d 1337, 1341 (Fed. Cir. 2010) (“In the context of EAJA claims, we have

held that th e ‘position of the United States’ in judicial proceedings refers to the United Stat es’ position ‘throughout the dispute, including not only its litiga ting position but also the age nc y’ s administrative position.’ ” (quoting Doty v. United States

, 71 F.3d 384, 386 (Fed. Cir. 1995))).

1 An EAJA application must be submitted within thirty days of the final judgment. 28 U.S.C. § 2412(d)(1)(B). A final judgment is one that is “final and not appealable.” 28 U.S.C. § 2412(d)(2)(G). The government had appealed this court’s decision, but it did not pursue the appeal, eventually fil ing an unopposed motion to voluntarily dismiss the appeal with each side bearing its ow n costs, which the Federal Circuit granted on March 27, 2014. Order, BCPeabody

Const r. Servs., Inc . v. United States , No. 14

- 5024 (Fed. Cir. Mar. 27, 201 4 ). BCPeabody timely

filed its EAJA application on April 23, 2014.

4The government's position “can be justified even though it is incorrect.” Manno v. United States

, 48 Fed. Cl. 587, 589 (200 1) (internal quotation mark s and citation omitted). The inquiry is “not what the law now is, but what the [g]overnment was substantially justified in believing it to have

been.” Loomis v. United States

, 74 Fed. Cl. 350, 355 (2006) (quoting Pierce

, 487 U. S. at 561)

. Substantial justification lies somewhere between winning the case and being “merely undeserving of sanctions for frivolousness.” Pierce

, 487 U.S. at 566.

The government asserts that its position had a reasonable basis in fact and law because its position that a contracting officer is not required to seek clarifications regarding proposals

was well

- grounded in decisions f rom t he Federal Circuit and this court

. Def.’ s Opp’n at

5

- 6

. The government points to decision s that confirm the discretionary nature of FAR § 15.306(a)(2). Id

. In the government’s view, the contracting officer reasonably believed she had no obligation to clarify any clerical errors in a proposal she received. I d. (citing Gulf Grp., Inc. v. United States

, 61 Fed. Cl. 338, 360 (2004) ). This argument reaches too far. As the court explained in its decision on the merits, there is no doubt that FAR § 15.306(a)(2) is written in permissive terms, but a contracting officer’s actions can still be arbitrary and thus not substantially justified

. See B CPeabody , 112 Fed. Cl. at 512. The particular factual circum

stances of this case left the contracting officer with no reasonable choice but to clarify the clerical error in BCPeabody’s proposal

. Id

. BCPeabody’s price was almost 25% lower than the

next lowest bid

, its price was not affected in any way by the clerical copying error, and it was disqualified solely for its obvious copying error respecting the past performance qualifications of a proposed subcontractor

. Id . at 513. The facts are especially compelling because the awardee

, Edens, proposed us e of the very same sub contractor whose past performance was f ound to be unacceptable in relation to BCPeabody’s proposal. The contracting officer had no substantive doubts regarding the ability of BCPeabody’s major subcontractor to successfully perform the

work. Importantly, FAR § 15.306(a) specifically refers to past performance as a subject respecting which clarifications may well be allowable. Given these circumstances , the contracting officer’s failure to clarify the mistake was manifestly arbitrary

.

The decisions upon which the government relies cannot ser ve to justify the government’s actions during this procurement. The errors in the proposals in those cases actually prevented the contracting officer from being able properly to evaluate the substance of the proposal s

. S ee, e

. g

. , Orion Tech., Inc., v. United States , 704 F.3d 1344 , 1351 (Fed

. Cir. 2013) (upholding the contracting officer’s decision to reject a proposal lacking required price information); JWK Int’l Corp. v. United States , 52 Fed. Cl. 650, 66 2 (2002) (“Given the circumstances of this case

– with literally dozens of fundamental deficiencies having been identified in JWK’s proposals

– this

court believes that the S [ource ] S [election ] B [oard] did not err in concluding that the limited exchanges envis ioned by FAR [§] 15

. 306(a) would serve abso lutely no utility here.”). In sum, given the facts of this case, the government’s position was not substantially justified. Accordingly, an award of attorneys’ fees and expenses pursuant to EAJA is appropriate.

B

. Attorneys’ Fees

BCPeabody requests attorneys’ fees amounting to $40,407.50

, reflecting 120.4 hours of attorney time at the rate of $300.00 per hour for counsel of record, and 12.25 hours of attorney

5time at the rate of $350.00 per hour for its general counsel . Pl.’s Mot. f or Fees at 7

- 8

. 2
BCPeabody submitted detailed invoices for these hours. It asserts that its attorneys are entitled to fees above and beyond the statutory cap of $125.00 for the following reasons:

(1) BCP[eabody] obtained excellent results in the litigation; (2) BCP[eab ody]’s selection of counsel in the action was confined to the limited pool of available attorneys admitted to the United States Court of Federal Claims[;] (3) BCP[eabody]’s attorney in this matter, James E. Krause, P.A.

, is dedicated to the practice of c onstruction litigation, wi th particular emphasis on [ f ] eder a l construction projects and government contracts . . . [;] (4) As reflected in the pleadings

, the issues of fact and law before the [ c ] ourt were numerous and complex, demanding specialized ski ll, training and experience of [f] ederal

construction law counsel.

Pl.’s Mot. for Fees at 9

- 10. The government does not contest the number of hours for which compensation is sought, but disagrees that there is any justification for an enhanced award.

Def .’s Opp’n at 7

- 9.

In pertinent part, EAJA provides that “attorney fees shall not be awarded in excess of
$ 125 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualifie d attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A). The burden is on the plaintiff to establish that special

factors warrant an enhanced award. Filtration Dev. Co. v. United States , 63 Fed. Cl. 612, 623

- 2 4 (citi ng Cox Constr. Co. v. United States , 17 Cl. Ct. 29, 3 5 (1989) )

. The Supreme Court

addressed enhanced fee awards in Pierce , stating that “‘limited availability of qualified attorneys for the proceedings involved’ must refer to attorneys ‘qualified for the proceedings’ in some specialized sense, rather than just in their general legal competence. We think it refers to attorneys having some distinctive knowledge or specialized skill . . . such as patent law, or knowledge of foreign law or language. ” 487 U.S . at 572. The Court further explained that factors such as “novelty and difficulty of issues,” the “undesirability of the case,” the “ work and ability of counsel,” and “the results obtained” are not special factors justifying an enhanced fee

award. Id. a t 573.

2 The invoices submitted by BCPeab ody to support the counsel of record ’s hours only

reflect a total of 118.4 hours worked , not 120.4

. Pl.’s Mot. for Fees Ex. A

- 2, at 5

- 15, ECF No.

71

- 1

. The discrepancy is explicable, however. Counsel hired Kinberg & Associates

, LLC to conduct additional legal research, for which he was charged $200.00 per hour for three hours.

Pl.’s Mot. for Fees Ex. A

- 2

, at 1 3 ( reflecting a charge on July 23, 2013 for $600.00 for “supporting case law research”), 2 2 (invoice from Kinberg & Asso ciates for legal research for
$600.00 ). BCPeabody appears to have lumped these hours from Kinberg & Associates with

counsel ’s hours in its EAJA application for a total of 120.4 claimed hours

, all at a rate of $300.00 per hour. Because it is not apparent from the supporting documentation if th e research by Kinberg was performed by an attorney, and BCPeabody’s brief and exhibits are silent on the issue, the court will treat the claimed three hours as paralegal hours, reimbursable at a rate of $75.00 per ho ur in accord with the hourly rate charged by counsel ’s paralegal(s). See infra at 7

- 8

.

6None of BCPeabody’s justifications for an enhanced fee award are persuasive. This court has previously held that “[e]ntitlement to an enhanced fee award is not a matter of attorney competence.” Dalles Irrigation Dist. v. United States , 91 Fed. Cl. 689, 705 (2010 ); see also Infiniti Info

. Solutions, LLC v. United States , 94 Fed. Cl. 740, 751 (2010) (“A government [] contract case does not require the kind of specialized knowledge or skill that would justify an enhanced award.”) ; Ca lifornia Marine Cleaning, Inc. v. United States , 43 Fed. Cl. 724, 732 (1999) (holding that “expertise and experience in the field of government contracts and, specifically, bid protests” is an insufficient basis to award attorneys’ fees in excess of the statutory cap)

. T hat BCPea b ody’s counsel has experience in federal construction contracts and is admitted to practice in th is c ourt is not a special factor. Moreover, t he “excellence of the results obtained” was expressly disavowed as a special factor by the Supreme Court . This case was a quotidian bid protest challenging a contracting officer’s exercise of discretion. There were no extraordinary factual or legal issues. Accordingly, no attorney hours shall be compensated in

excess of the presently extant statutory cap of $125.00. 3

Notably, BCPeabody did not request a statutorily permissible cost of living adjustment ( “ COLA ” ) to the statutory cap. See 28 U.S.C. 2412(d)(2)(A). T he burden rests on the plaintiff to “allege[ ] that the cost of living has increased [since the latest adjustment of the statutory cap

which took effect in March 199 6 ], as measured by the Department of Labor ’s Consumer Price Index (‘CPI’), ” Ca lifornia Marine Clea n ing , 43 Fed. Cl. at 733, and to supp ly t he court with relevant CPI data, Infiniti Info. Solutions , 94 Fed. Cl. at 751 (citing ACE Constructors, Inc. v. United States , 81 Fed. Cl. 161, 168 (2008) and Lion Raisi ns , Inc. v. United State s , 57 Fed. Cl. 505, 519 (2003) ). BCPeabody has n either mad e the required allegation no r supplied the court with the necessary CPI data. See Def.’s Opp’n at 9. Consequently, the court can not grant a COLA adjustment to the statutory rate.

In sum, BCPeabody is awarded compensation for 130 .65 attorney hours at the statutory

rate of $125.00, for a total of $16,331 .25.

C. Paralegal Fees

BCPeabody also seeks $ 6,097.50 in paralegal fees. Pl. ’s Mot. for Fees Ex. A, at 1. It mistakenly classifies these fees as an expense, citing the Federal Circuit ’ s decision in Richlin Sec. Serv. Co. v. Chertoff , 472 F.3d 1370 (Fed. Cir. 2006), r eh’g denied , 482 F.3d 1358 (Fed. Cir. 2007), re v’ d

, 553 U.S. 571 (2008)

. See Pl.’s Mot. for Fees at 8

- 9. By c onsidering paralegal fees as an expense, the Federal Circuit h ad limited recovery of paralegal fees to the attorney’s

cost for the services , rather than allowing recovery for paralegal services at the market rate.

Richlin , 472 F.3d at 1381. That rationale no longer applies. T he Supreme Court reversed the

Federal Circuit in Richlin and determined that paralegal fees under EAJA should be considered attorneys’ fees and awarded at prevailing market rates, not to exceed the $125 statutory cap

3 Additionally , BCPeabody failed to present reasons as to why its general counsel should be entitled to an hourly rate above $125.00. As justification i t submitted only an affidavit signed by the general counsel stating that his rate of $350.00 an hour is “equal or less” than the hourly rates typically charged in th e local Florida area for service by a board certified construction lawyer. Pl.’s Mot. for Fees Ex. D

, ¶ 4.

7applicable to attorneys’ fees

. 553 U.S. at 581

. The S upreme Court relied, in large part, on its

pr ior determination in Missouri v. Jenkins , 491 U.S. 274 (1989) , that paralegal fees were subsumed within the statutory phrase “attorneys’ fees” found in 42 U.S.C. § 1988, a fee

- shifting provision for certain civi l rights actions. Id. at 581

- 82. In this case, BCPeabody ’s counsel billed paralegals at a reasonable rate of $75 per hour for 81.3 hours

. See United Partition Systems, Inc.

v. United Sates , 95 Fed. Cl. 42, 59

- 60 (2010) (applying prevailing market rates for paralegals in the pertinent local area)

. 4 Additionally, as explained supra at 6 n. 2 , the court will treat the hours billed by Kinberg & Associates as paralegal hours, reimbursable at a rate of $75.00 per hour for

three hours. Thus, BCPeab ody is award ed compensation for 84 .3 paralegal hours at a rate of
$75. 00 per hour , for a total of $6,322 .50.

D . Other Expenses

As part of its EAJA application, BCPeabody requests $301.00 for administrative filing support services provided by the Lex Group VA and $ 910.06 for attorney travel expenses. Pl.’s Mot. for Fees Ex. A, at 1. The government did not address these expenses in its response to BCPeabody’s application.

BCPeabody also submitted a Bill of Costs , pursuant to RCFC 54(d), seeking $19,176.85

in cos ts , consisting of: (1) a $400.00 filing fee, (2) $9,550.85 for internal personnel costs related to the lawsuit, (3) $3,150.00 for consultant costs, (4) $6,000.00 for a preliminary injunction bond, (5) $50.50 for Federal Express costs, and (6) $25.25 for of fice/copying expenses. Pl.’s

Bill of Costs Exs. A, A

- 1, A

- 2, ECF No. 72

- 1. The government conte nds that all bu t one of these claimed expenses a re statutorily excluded from an award of costs pursuant to R CFC 54(d).

Def .’s Resp. to Pl.’s Bill of Costs at 4, ECF No. 74. The government submits that the only permissible cost is the $400.00 filing fee

. Id

. The government’s contention is mistaken on legal grounds, however. In acting on an application for fees and expenses under EAJA, the court is

not li mited to the costs permissible under RCFC 54(d)

. That Rule is displaced by the explicit provisions of EAJA. Section 2412(a) of title 28 provides that, “ Except as otherwise specifically provided by statute , a judgment for c osts, as enumerated in section 1920 of this title, but not including the fees and expenses of attorneys, may be awarded to the prevailing party in any civil action brought by or against the United States.” 28 U.S.C. § 2412(a)(1) (emphasis added). 5

4 BCPeabody’s brief states that the paralegal hours can be ascertained from counsel ’s invoices to BCPeabody by looking at those hours billed at $75.00 per hour as contrasted to

counsel’s hours, which were billed at $300.00 per hour. Pl.’s Mot. for Fees at 8. BCPeabody states that the paralegal worked 87.3 hours and that th i s expense is itemized in Ex. A on Form 5.

Pl.’s Mot. for Fees at 8. Form 5 reflects a request for $6,097.50 in paralegal fees. A mistake is evident, however, because 87.3 hou rs times $75.00 per hour equals $6,547.50. The court assumes that there is a typographical error in BCPeabody’s brief because the invoices reflect a total of 81.3 paralegal hours

, and 81.3 hours at $75.00 per hour generates the claimed amount of $6,097.50

.

5 S ection 1920 enumerates an exclusive list of expenses that may be categorized as “costs” and awarded by the court pursuant to RCFC 54(d)

. See Crawford Fitting Co. v. J. T.
Gibbons, Inc. , 482 U.S. 437, 445 (1987). That list includes: “(1) Fees of the clerk and marshal;

8Subsec tion 2412(d) then provides in pertinent part that “a court shall award to a prevailing party

other than the United States fees and other expenses , in addition to any costs awarded pursuant to [28 U.S.C. § 2412(a)], incurred by that party in any civil actio n . . . brought by or against the United States.” 28 U.S.C. § 2412(d)(1)(A) (emphasis added)

.

T he exception to 28 U.S.C. 2412(a) applies here because EAJA is being invoked and Subparagraph 2412(d)(1)(A) is not limited by a statutory enumeration of permissible costs

. Moreover, the statutory definition for “fees and expenses” as used in Subparagraph 2412(d)(1)(A) states that “ ‘ f ees and other expenses’ includes the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, en gineering report, test, or project which is found by the court to be necessary for the preparation of the party’s case.” 28 U.S.C. § 2412(d)(2 )(A) (emphasis added). Most c ourts have tr eated this definition as a guiding principle , rather than as a definit ive listing of permissible expenses. Se e, e

. g ., Jean v. Nelson

, 863 F.2d 759, 777 (11th Cir. 1988) (“‘fees’ and ‘expenses’ are defined in the Act by example, rather than by limitation”)

, aff’d on other grounds , 396 U.S. 154 (1990) ; Oliveira v. United

States , 827 F.2d 735, 744 (Fed. Cir. 1987) ; Int’l Woodworkers of Am. v . Donovan , 79 2 F.2d 762,

767 (9th Cir. 1985) (affirming a district court’s decision that the expenses enumerated in Section 2412(d)(2)(A) are set for th as examples, not as an exclusive l ist)

. Bu t see Weakley v. Bowen , 803 F.2d 575, 580 (10th Cir. 1986) (holding that travel expenses and postage fees are not compensable expenses under EAJA); NAACP v. Donovan , 554 F. Supp. 715, 719

- 20 (D. D. C.

1982 ) (holding that while EAJA does not provide an exclusive definition of expenses, only those

expenses ejusdem generis , of the same kind, should be considered to be an allowable expense ). Fees for filing, electronic legal research, transcripts, photo copying, postage, travel, and cou riers

are routinely held to be recoverable under EAJA. See

, e

. g ., Jean , 863 F.2d at 759 ( allowing recovery for telephone, reasonable travel, postage, and computerized research expenses); Int’l Woodworkers of Am. , 79 2 F.3d at 767 (same)

.

Accordingly, “fees and othe r expenses” as used in EAJA are limited only by the requirement that all claimed expenses must be reasonable and necessary to the litigation. On this

basis , the court will permit recovery for counsel ’s travel expenses to Washington, D.C. for the prelimina ry injunction hearing ($910.06), the administrative filing services provided by the Lex Group VA ($301.00), the copying expenses ($25.25), and the Federal Express expenses ($50.50). The court also finds that reasonable and necessary consultant costs are recoverable under EAJA.

See Information Scis

. Corp. v. United States , 78 Fed. Cl. 673, 683 (2007) (permitting recovery of fees paid to a n expert consultant to review a very large reco rd). BCPeabody used a consultant for three purposes: (1) for initially evaluatin g the contracting officer’s actions following the

GAO decision , (2) for assessing the potential costs to be covered by the preliminary injunction

bond , and (3) for providing a dvice to and discussions with counsel

. See Pl.’s Bill of Costs at 5,

Ex. A

- 7. The court concludes that the first two activities were necessary to the litigation, but the

(2) Fees for printed or electronically recorded transcript s necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the cost s of making copies of any materials where copies are necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and co sts of special interpretation services under section 1828 of this title.” 28 U.S.C. § 1920.

9third category was not. Accordingly, the court will permit recovery for the consult ant’ s hours charged on May 11 (4 hours)

, June 5 ( 0 .5 hours)

, June 17 (1.25 hours) , Jun e 18 (2.25 hours)

, June 24 (0.75 hours) , and June 25 (1.75 hours) , 2013, reimbursable at the billed rate of $100.00 per hour for 10.5 hour s , for a total of $1,050.00

. See Pl.’s Bill of Costs Ex. A

- 7

.

BCPeabody also seeks $9,550.85 in internal personnel costs for hours devoted to the bid protest. Pl.’s Bill of Costs Ex. A

- 2

. In this respect, the Supreme Court has cautioned that “ ‘ [t] he

Act should not be read . . . to permit reimbursement for items ordinarily included in office overhead, nor for any other expenses not reasonable in amount, necessary for the conduct of the litigation, and customarily chargeable to clients.’” Richlin Sec. Serv. , 55 3 U.S. at 585 (alter ations in original) (quoting S. Rep. No. 98

- 586 at 15 (1984)). Regular employee salaries

are not recoverable under EAJA , and BCPeabody’s employees were engaged in general business functions, not legal functions. See Info rmation Scis

. Corp. , 78 Fed. Cl. at 684 (denying plaintiff’s request for employee overtime expenses under EAJA); cf. Taylor Grp.

, Inc. v.

Johnson , 919 F. Supp. 1545, 1556 (M.D. Ala. 1996) (declining to award atto rney ’ s secretarial overtime expenses because they were properly considered business overhead )

.

Finally, BCPeabody seeks to recover the premium it paid to secure a bond to support the preliminary injunction. To effecutate the preliminary injunction it had sought successfully

, BCPeabody had to purchase a $300,000.00 bond from a third party for which it paid a bond premium of $6,000.00

. Pl.’s Bill of Costs Ex. C . Historically, bond premiums were recoverable costs in suits at equity. See

, e

. g ., Scaduto v. Orlando , 381 F.2d 587, 596 (2d Cir. 1967); In re N

orthern Ind. Oil Co. , 192 F. 2 d 139, 143 (7th Cir. 1951) (holding that the premium upon a bond was a taxable cost)

, abrogation recognized by Republic Tobacco Co. v. N. Atlantic Trading Co.

, 481 F.3d 442, 447

- 48 (7th Cir. 2007) ; Williams v. Sawyer Bros ., 51 F.2d 10 04, 1005 (2d Cir. 1931) (same); Weiss v. Smith , 103 F. Supp. 736, 736 (D. Conn. 1952) (holding that an injunction bond premium is a taxable cost under a local rule of civil procedure)

. Bu t see Kroger Grocery & Baking Co. v. Martin , 97 F.2d 348, 349 (6th C ir. 1938) (declining to award an appeal bond premium as a taxable cost becau se it was not customary in the c ircuit) (citing Newton v.

Consolidated Gas Co. , 265 U.S. 78, 84 (1924)).

The practice of awarding bond premiums as a taxable cost , absent expl icit statutory authority, was curtailed by the Supreme Court’s decision in Crawford Fitting Co. v. J. T.
Gibbons, Inc. , 482 U.S. 437 (1987)

. I n Crawford

, the Supreme Court held that “[Section] 1920

defines the term ‘c osts ’ as used in Rule 54(d). Section 1920 enumerates expenses that a federal court may tax as a cost under the discretionary authority found in Rule 54(d).” Id. at 441

- 42. It

concluded that Rule 54(d) was no longer to be interpreted as allowing courts discre tion as to

what costs are taxable

. Id

. at 442. 6 The Supreme Court’s decision in Crawford , however, has no

6 Previously, “it was generally recognized that . . . Rule 54(d) was intended as a grant of discretion to district courts,” which was derived from the “practice formerly followed in equity . . . where courts possessed the power to award costs not expressly p rovided by statutes, as part of the original authority of the chancellor to do equity in a particular situation.” Crawford

, 482

U.S. at 44 6

- 4 7 (Marshall

, J. dissenting) (internal quotation marks and citations omitted) ; accor d

In re Northern Ind. Oil , 192 F.2d at 143 (“[C]ourts have authority to include premiums paid for bonds as proper items of taxable costs. We believe they have such authority derived from the

10bearing on the permissible fees and expenses that can be awarded pursuant to EAJA

. See Sterling Fed

. Sys

. , Inc. v. G oldin , 16 F.3d 117 7 , 1184

- 85 ( Fed. Cir. 1994). Indeed, t he historical precedent of awarding bond premiums as reasonable costs and the simple reality that BCPeabody had no choice but to pay for a bond to secure its rights under the preliminary injunction weigh heavily in favor of awarding the bond premium as an expense pursuant to 28 U.S.C. § 2412(d)(1)(A).

In conclusion, BCPeabody is entitled to “other expenses” amounting to $8,336.81, consisting of reasonable expenses for attorney travel, copying, Fe deral Express delivery

, administrative processing, and expert consulting, as well as the bond premium necessarily paid to obtain the preliminary injunction bond

.

II . Bill of Costs

As a general matter , costs awarded pursuant to RCFC 54(d) are statutorily enumerated and are to be strictly construed. See Taniguchi v. Kan Pacific Saipa n, Ltd.

,

__ U.S.

__ ,

__ , 132 S. Ct. 1997, 2003

- 04 (2012) (holding that S ubsection 1920( 6), allowing for compensation of interpreters

, does not also include document translation costs because the ordinary meaning of interpreter does not encompass written translation). The prevailing party must provide documentation of the costs it requests to be awarded. Dalles Irrigation Dist. , 91 Fed. Cl. at 710.

This d ocumentation must show that the costs sought were “reasonable and necessary to the litigation .” Standard Commc’ns, Inc. v. United States , 106 Fed. Cl. 165, 175 (2012) (citing

In re Rico h Co. , 661 F .3d 1361, 1368 (Fed. Cir. 2011) (applying a regional circ uit’s interpretation of S ection 1920 ) ). There is no dispu te that the $400.00 filing fee i s a cost awardable under RCFC 54(d). Correlatively, it would be an “expenses” allowable pursuant to 28 U.S.C. § 2412(d)(1)(A).

CONCLUSION

For the reasons stated, BCPeabody’s application for attorneys’ fees and expenses under EAJA is GRANTED IN PART. BCPeabody is awarded attorneys’ fees of $16,331 .25, paralegal

fees o f $6,322. 50, and expenses of $8,336.81. BCPeabody’s Bill of Costs is GRANT ED IN PART. BCPeabody is awarded the filing fee of $400.00. In total, BCPeabody is awarded $31,390.56.

equitable power to assess costs according to the demands of justice, as disclosed by the facts and the circumstances of the particular case being considered.”). In recognizing the Supreme Court’s

shift in Crawford, the Seventh Circuit has since reversed its stance that district courts have an equitable power to award costs beyond those specifically enumerated in Section 1920

. See Republic Tobacco Co. , 481 F.3d at 447 (“To the extent these [prior] cases suggest that Rule 54(d) empowers a district court to tax costs not outlined in [Section] 1920, they are not controlling in light of Crawford .”) (ref erring inter alia to In re N orthern Ind. Oil , 192 F. 2 d 139);

see also Pershern v. Fiatallis N. Am., Inc. , 834 F.2d 136, 140 (8th Cir. 1987) (“Section 1920 does not authorize the taxing of . . . removal bond premiums in removal actions.”).

11The Clerk is directed to enter judgment in accord with this disposition.

It is so ORDERED.

s/ Charles F. Lettow

Charles F. Lettow Judge

12