ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of--

GSI & Whitesell-Green, JV 

Under Contract No. FA3022-15-C-0001 

APPEARANCE FOR THE APPELLANT: 

) 

) 

) 

) 

) 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 62216 

Mr. Josh Owens 

President 

Jeffrey P. Hildebrant, Esq. 

Air Force Deputy Chief Trial Attorney 

Lt Col Byron G. Shibata, USAF 

Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE O'CONNELL 

Per the request of appellant, the Board docketed this as a quantum appeal relating 

to our decision on entitlement under Board Rule 12.3 in GSJ & Whitesell-Green, J. V, 

ASBCA No. 61816, 19-1BCA137,289 (GS! I). While the parties were successful in 

negotiating the costs of the underlying work at issue, they have been unable to resolve 

what appellant refers to as "expenses related to the preparation of the [c]laim" (Bp. corr. 

ltr. <ltd. November 11, 2019). 

FINDINGS OF FACT 

The Board issued its decision in GS! I on March 20, 2019. On September 24, 

2019, the Air Force reported to the Board that the contracting officer had issued a 

modification in the amount of $9,828 (the amount sought by appellant in its claim) plus 

interest under the Contract Disputes Act, 41 U.S.C. § 7109(a)(l). The Air Force 

requested that the Board dismiss the appeal with prejudice. On that same date, appellant 

wrote to the Board acknowledging issuance of the modification but stating that it seeks 

"additional expenses for the work invested toward the preparation and execution of the 

Contractor's[] case ... " (Bd. corr. ltr. dtd. September 24, 2019). 

By letter dated October 4, 2019, the Board's Recorder notified the parties that 

after the Board issued GS! I, the Board removed the appeal from the active docket and 

intended to take no further action on it. The Recorder also stated that the Board would 

docket a quantum appeal at appellant's request if the parties could not resolve quantum. 

On October 11, 2019, appellant requested that the Board docket a quantum appeal. 
The Board docketed the quantum appeal on October 15, 2019. On that same date, 

the Board issued an order on proof of costs. 

On November 11, 2019, appellant filed its statement of costs. Citing the Equal 

Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) and Addendum I to the Board's 

Rules, Equal Access to Justice Act Procedures, appellant contended that it is entitled to 

the costs for the time its employees worked on No. 61816. It reasoned that if an attorney 

performed this work it would be compensable and it would be reasonable to compensate 

a contractor for the same work performed by an attorney, particularly when the contractor 

rates are much lower than those charged by attorneys. Attached to the statement, 

appellant submitted a spreadsheet reflecting 115 .25 hours of administrative time billed at 

$36 per hour, plus labor burden of 36%, totaling $5,643. On top of this it adds overhead 

and profit at 10% each, bond at 1 %, and a Mississippi construction tax at 3 .5%, for a total 

of $7,137. Appellant identifies the start date for this work as September 25, 2018, the 

date on which it filed No. 61816. Appellant does not identify the employees who 

performed the work but the Board observes that Josh Owens (who has identified himself 

as the president or managing member) signed the notice of appeal, the complaint, 

supplemental Rule 4 file, and statement of costs while Nathan Green, Project Manager, 

signed its merits briefs. 

DECISION 

The applicable portion of the EAJA statute provides: 

An agency that conducts an adversary adjudication shall 

award, to a prevailing party ... fees and other expenses 

incurred by that party . . . . A party seeking an award of fees 

and other expenses shall ... submit to the agency an 

application which shows ... the amount sought, including an 

itemized statement from any attorney, agent, or expert 

witness .... 

5 U.S.C. § 504(a). The statute defines "fees and other expenses" to include: 

[T]he reasonable expenses of expert witnesses, the reasonable 

cost of any study, analysis, engineering report, test, or project 

which is found by the agency to be necessary for the 

preparation of the party's case, and reasonable attorney or 

agent fees .... 

5 u.s.c. § 504(b ). 

2 
The Federal Circuit considered a matter comparable to this appeal in Fanning, 

Phillips, Molnar v. West, 160 F.3d 717 (Fed. Cir. 1998). In Fanning, the Department of 

Veterans Affairs Board of Contract Appeals held that a prevailing appellant was entitled 

to attorney fees or fees paid to outside consultants or expert witnesses. On appeal, the 

Federal Circuit considered whether the statute also allowed for reimbursement of 

non-lawyer employees or principals of the contractor as "agents" of the contractor. The 

Court of Appeals held that it did not, explaining, among other things, that the use of the 

word "fees" in the statute suggested that it was referring to fees by those who supply the 

types of specialized services necessary to prosecute a claim, not the employees or 

principals of a contractor. Id. at 721. 

The Court found additional support in the legislative history of the EAJA. The 

original bill would have included compensation for a party's personal absence from 

business at an hourly rate but the language was dropped from the enacted statute. 

Fanning, 160 F.3d at 722 (citing H.R. Rep. No. 96-1005, pt. 1, at 2 (1980)). The Court 

held that the "deletion indicates that compensable 'fees and expenses' were not intended 

to include lost opportunity costs of employee or principal time associated with 

prosecuting a claim." Id. The Court held that because none of the employees or the 

principal was an attorney, a specialized non-attorney practitioner, or an outside specialist 

retained to assist with the litigation, the costs were not recoverable under the EAJA. Id. 

Finally, the Court held that because the purpose of the statute was not to compensate for a 

personal absence from a business, none of the time spent by the employee or principal 

could be compensated as "other expenses" or as time spent by an "expert witness." Id. 

· GSI & Whitesell-Green does not identify any of the costs it seeks as time by an 

attorney, a specialized non-attorney practitioner, or an outside specialist or expert 

witness. Rather, the time appears to be that spent by its president, Mr. Owens, or 

Mr. Green, the project manager. Accordingly, these costs are not recoverable under the 

EAJA. 

The appeal is denied. 

Dated: January 30, 2020 

(Signatures continued) 

CONCLUSION 

3 

~)}1~ I'{). e) '~-U 

MICHAEL N. O'CONNELL 

Administrative Judge 

Armed Services Board 

of Contract Appeals 
I concur 

Administrative Judge 

Vice Chairman 

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 in ASBCA No. 62216, Appeal of GSI & 

Whitesell-Green, JV, rendered in conformance with the Board's Charter. 

Dated: 

4 

PAULLA K. GATES-LEWIS 

Recorder, Armed Services 

Board of Contract Appeals