ARMED SERVICES BOARD OF CONTRACT APPEALS

Application Under the Equal Access           )
 to Justice Act of --                        )
                                             )
Avant Assessment, LLC                        )      ASBCA No. 58903
                                             )
Under Contract No. W9124N-11-C-0015          )

APPEARANCES FOR THE APPELLANT:                      Dirk D. Haire, Esq.
                                                    Alexa Santora, Esq.
                                                    Sean Milani-nia, Esq.
                                                    Rachel M. Severance, Esq.
                                                     Fox Rothschild LLP
                                                     Washington, DC

APPEARANCES FOR THE GOVERNMENT:                     Raymond M. Saunders, Esq.
                                                     Army Chief Trial Attorney
                                                    CPT Harry M. Parent III, JA
                                                    MAJ Julie A. Glascott, JA
                                                     Trial Attorneys

           OPINION BY ADMINISTRATIVE JUDGE MCILMAIL
     ON APPELLANT'S EQUAL ACCESS TO JUSTICE ACT APPLICATION

        Appellant has applied for $45,405.29 in fees and expenses pursuant to the Equal
Access to Justice Act (EAJA), 5 U.S.C. § 504, after we sustained ASBCA No. 58903
and converted the default termination of the contract referenced above (contract 15 (for
the development and delivery of foreign-language test items to the Defense Language
Institute)) to one for the convenience of the government. Avant Assessment, LLC,
ASBCA No. 58903 eta!., 17-1 BCA ,r 36,837 at 179,507, 179,510-11. Familiarity with
that opinion, which also concerns three other appeals (ASBCA Nos. 60143, 60144, and
60619) and two other contracts (contracts 33 and 40) is presumed. In response to
appellant's EAJA application, the government says the application is premature,
because, it says, our decision in ASBCA No. 58903 is not final (gov't resp. at 1-2). Our
conversion of the default termination of contract 15 left nothing to adjudicate in ASBCA
No. 58903; consequently, we reject the government's prematurity argument. See Avant
Assessment, LLC, ASBCA No. 58867, 16-1 BCA i! 36,436 at 177,601. On August 23,
2017, the government received our decision sustaining ASBCA No. 58903; that
disposition became final on December 21, 2017, when the government's 120-day appeal
period expired. See Radar Devices, Inc., ASBCA No. 43912, 01-1 BCA ,r 31,322 at
154,712; 41 U.S.C. § 7I07(a)(l)(B). Appellant had 30 days, until Monday, January 22,
2018, to submit its application for EAJA fees to the Board. See 5 U.S.C. § 504(a)(2). It
did so on January 18, 2018; therefore, the application is timely.

        The government has the burden of proving that its position in this appeal was
 substantially justified. Scarborough v. Principi, 

, 414-15, 

(2004). Here it does not assert that its position was substantially justified, and
 concedes appellant's eligibility for an award (gov't resp. at 1). Nevertheless, the
government says that appellant "may only be awarded EAJA fees to the extent it was
successful" (id. at 2). Where a party has achieved only limited success, we should
award only that amount that is reasonable in relation to the results obtained. See
Freedom NY, Inc., ASBCA No. 43965, 09-1 BCA ,r 34,097 at 168,595. Although we
sustained ASBCA No. 58903, we dismissed ASBCA Nos. 60143 and 60144 (seeking
price adjustments for contracts 33 and 15) as moot, and denied ASBCA No. 60619
(seeking breach damages related to contract 40). Avant Assessment, 17-1 BCA
,r 36,837 at 179,511-12. It appears that, appropriately, appellant has attempted an
apportionment of its fees and costs, with the objective of obtaining only that portion
fairly attributable to ASBCA No. 58903, in which it prevailed. See International
Foods Retort Co., ASBCA No. 34954 et al., 93-3 BCA ,r 26,249 at 130,573. There is
no precise formula for that task; it is based, instead, on review of the record as a
whole. 

says that appellant's $45,405.29 request equates to
363.24 hours of attorney time at $125 per hour (gov't resp. at 3); however, attached to
the EAJA application are "summaries" of the fees and expenses sought for ASBCA
No. 58903, including one summary that expressly identifies $12,548.29 as an
"Estimate of ASBCA No. 58903 Related Cost in Entry" (out of $37,645.03 in "Total
Cost in Entry") for such things as photocopying services and expenses related to travel
for the hearing. That $12,548.29 estimate (which the government does not reference)
means that only $32,857.00 of the $45,405.29 that appellant seeks is for fees, which at
$125 per hour equates to only 262.86 hours. The invoices attached to the application
indicate that appellant's attorneys spent approximately 1,000 hours on matters related
to (1) ASBCA Nos. 58903, 60143, 60144, and 60619; (2) contracts 15, 33 and 40;
(3) two other, related appeals (ASBCA Nos. 58986 and 59713); (4) one other, related
contract (contract 109); and (5) another appeal that does not, at least on its face, appear
related to the others: ASBCA No. 58836. See Avant Assessment, LLC, ASBCA
Nos. 58986, 59713, 16-1 BCA ,r 36,505 at 177,862; Technologists, Inc., ASBCA
No. 58749 et al., 

(Feb. 4, 2016). Most of the invoice entries appear
to relate, at least in part, to the matters raised in ASBCA Nos. 58903, 60143, 60144,
and 60619. We held a two-day hearing of those appeals in Eugene, Oregon. The
parties filed post-hearing briefs, and appellant prevailed outright in ASBCA
No. 5 8903, obtaining the conversion of the default termination of contract 15 to one
for the convenience of the government. Under these circumstances where appellant is
only requesting compensation for about Y-i of its hours, we find reasonable appellant's


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request for $45,405.29 in fees and expenses. Cf SST (Supply & Service Team) GmbH,
ASBCA No. 59630, 18-1 BCA ,i 36,932 at 179,933 (granting $39,767.79 in fees and
expenses after having granted summary judgment to appellant and sustained appeal).

        The government asks that we set off any award against the $71,572.98 that it says
is "owed to the government pursuant to the Board's decision dated 22 September 2016
regarding ASBCA No. 58986, the government's affirmative claim on Contract No. 0109"
(gov't resp. at 5). We reject that request. We never determined in ASBCA No. 58986
that appellant owed the government any particular amount; rather, we found that the
government had overpaid appellant under contract 109, then remanded the matter to the
parties for negotiation of the amount to be reimbursed to the government. Avant
Assessment, 16-1 BCA ,i 36,505 at 177,863-64. As for our other decision dated
22 September 2016, we dismissed ASBCA No. 59713 as moot. 

for the award of $45,405.29 in fees and expenses is granted.

      Dated: 24 April 2018




                                               ~~
                                               ""TIMOTHYB.MCILIL
                                                 Administrative Judge
                                                 Armed Services Board
                                                 of Contract Appeals



I concur                                         I concur


   ~
RICHARD SHACKLEFORD
Administrative Judge                            Administrative Judge
Acting Chairman                                 Vice Chairman
Armed Services Board                            Armed Services Board
of Contract Appeals                             of Contract Appeals




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       I certify that the foregoing is a true copy of the Opinion and Decision of the Anned
Services Board of Contract Appeals on an application for fees and other expenses incurred
in connection with ASBCA No. 58903, Appeal of Avant Assessment, LLC, rendered in
accordance with 5 U.S.C. § 504.

      Dated:



                                                 JEFFREY D. GARDIN
                                                 Recorder, Anned Services
                                                 Board of Contract Appeals




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