ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- GSI & Whitesell-Green, JV Under ContractNo. FA3022-15-C-0001 APPEARANCE FOR THE APPELLANT: ) ) ) ) )

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 62216



### Mr. Josh Owens

President Jeffrey P. Hildebrant, Esq.

Air Force Deputy ChiefTrial Attorney Lt Col Byron G. Shibata, USAF

Trial Attorney OPINION BYADMINISTRATIVE JUDGE O'CONNELL Perthe request ofappellant, the Board docketed this as a quantum appeal relating to our decision on entitlementunder 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 ofthe underlying work at issue, they have beenunable to resolve what appellant refers to as "expenses related to the preparation ofthe [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 Boardthat the contracting officer had issued a modification inthe amount of$9,828 (the amount soughtby appellant in its claim) plus interest under the ContractDisputes Act, 41 U.S.C. § 7109(a)(l). The Air Force requestedthat the Board dismiss the appeal withprejudice. Onthat same date, appellant wrote to the Board acknowledging issuance ofthe modification but stating that it seeks "additional expenses for the work investedtowardthe preparation and execution ofthe Contractor's[] case ..." (Bd. corr. ltr. dtd. September 24, 2019). By letter dated October 4, 2019, the Board's Recorder notified the parties that afterthe 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 ifthe 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. Onthat same date, the Board issued an order on proofofcosts. OnNovember 11, 2019, appellant filed its statement ofcosts. 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 ifan attorney performed this work it wouldbe compensable and it would be reasonable to compensate a contractor for the same workperformed by an attorney, particularly when the contractor rates are much lower than those chargedby attorneys. Attached to the statement, appellant submitted a spreadsheetreflecting 115.25 hours ofadministrative time billed at $36 perhour, plus labor burden of36%, totaling $5,643. On top ofthis 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 onwhich 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 ofappeal, the complaint, supplemental Rule 4 file, and statement ofcosts while Nathan Green, Project Manager, signed its merits briefs. DECISION The applicable portion ofthe EAJA statute provides: An agency that conducts an adversary adjudication shall award, to a prevailing party ... fees and other expenses incurred by thatparty . . . . A party seeking an award offees and other expenses shall
... submitto 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 ofexpert witnesses, the reasonable cost ofany study, analysis, engineering report, test, orproject which is found by the agency to be necessary for the preparation ofthe party's case, and reasonable attorney or agent fees
.... 5

## u.s.c. § 504(b).

2The 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 ofContract 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 ofthe contractor as "agents" ofthe contractor. The Court ofAppeals heldthat it did not, explaining, among other things, thatthe use ofthe word "fees" in the statute suggestedthat it was referring to fees by those who supply the types ofspecialized services necessary to prosecute a claim, notthe employees or principals ofa contractor. Id. at 721. The Court found additional support in the legislative history ofthe EAJA. The original bill would have included compensation for a party's personal absence from business at anhourly rate butthe 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 ofemployee or principal time associated with prosecuting a claim." 

### Id. The Courtheld thatbecause none ofthe employees orthe principal was an attorney, a specialized non-attorneypractitioner, or an outside specialist retained to assist withthe litigation, the costs were not recoverable under the EAJA. Id. Finally, the Courtheld that because the purpose ofthe statute was not to compensate for a personal absence from a business, none ofthe time spent by the employee or principal could be compensated as "other expenses" or as time spentby an "expertwitness." Id.



### ·GSI & Whitesell-Green does not identify any ofthe 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 spentby its president, Mr. Owens, or Mr. Green, theprojectmanager. Accordingly, these costs are not recoverable under the EAJA.

The appeal is denied. Dated: January 30, 2020

(Signatures continued) CONCLUSION

3 

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# '~-U MICHAELN. O'CONNELL Administrative Judge Armed Services Board ofContract AppealsI concur

Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCANo. 62216, Appeal ofGSI & Whitesell-Green, JV, rendered in conformance withthe Board's Charter. Dated:



### 4 PAULLA K. GATES-LEWIS Recorder, Armed Services Board ofContract Appeals