CBCA 7833-C(7472)

GRANTED IN PART: October 30, 2023 CBCA 7833-C(7472) GC WORKS, INC., Applicant, v. DEPARTMENT OF AGRICULTURE, Respondent. Diana Lyn Curtis McGraw and Nicholas T. Solosky of Fox Rothschild LLP, Washington, DC, counsel for Applicant. Mark R. Simpson, Office of the General Counsel, Department of Agriculture, Atlanta, GA, counsel for Respondent. Before Board Judges RUSSELL, VERGILIO, and ZISCHKAU. VERGILIO, Board Judge. The applicant, GC Works, Inc., timely seeks to recover attorney fees under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 (2018), following the Board’s decision granting in part its appeal. The Board awarded the applicant $5000, plus interest, for several days of delay. This was less than the full amount sought, because the applicant’s actions unnecessarily extended the period to resolve the differing site/changed condition. GC Works, Inc. v. Department of Agriculture, CBCA 7472, 23-1 BCA ¶ 38,379 (a one-judge non- precedential decision; Board Rules require a three-judge panel to resolve an application, Board Rule 1(d) (48 CFR 6101.1(d) (2022)). The Department of Agriculture (agency) CBCA 7833-C(7472) 2 requests that the Board deny the application, asserting that the applicant was not a prevailing party and that the agency’s position was substantially justified. The applicant was a prevailing party. It succeeded on a significant issue of the litigation; it achieved some of the benefit sought. The agency’s position was not substantially justified, as the site conditions differed from the Government-provided drawings. The agency offered no relief initially and suggested only limited relief thereafter. The applicant has supported the hours worked (it requests no expenses), seeking $9362.50. Given the limited success of the results achieved, that figure is adjusted downward to account for the applicant’s unsuccessful pursuit, throughout the course of litigation, of greater damages for a longer delay period and its failure to acknowledge its responsibility for a portion of the delay. The escalated requests for relief during the proceedings were not substantially justified and protracted the litigation. The Board awards $4700, approximately half of the amount sought. Background On May 17, 2022, the applicant received the initial decision by a contracting officer, denying what was deemed to be a claim to recover $5518.43 for a differing site/changed condition and work stoppage due to a notice of non-compliance. Underlying the dispute were the locations of bolts in an existing gate that did not match those depicted in the Government-provided drawings. The applicant sought payment based upon six days of delay to remedy the variance. The contracting officer recognized that the agency had issued a notice of non-compliance but did not view that to be a stop work order that hindered performance. Further, the contracting officer concluded that under the design-build contract, the applicant was required to verify bolt locations, such that the applicant, not the agency, was liable for costs associated with the variation between the drawing and the actual bolt locations. Thereafter, the applicant sought $9743.02, revised first to $30,427.66 and then $26,619.34, in submissions to the agency. In its final brief, the applicant sought $15,191.26, associated with eighteen days of delay, all arising from the differing site/changed condition. Of that amount, the agency deemed appropriate to pay at most approximately $1775, but it needed further support. The Board decision awarded the applicant $5000, plus interest. Prior to the appeal (during performance and in the decision denying the initial claim) and thereafter (throughout the litigation), the agency failed to recognize its basic obligations to compensate the applicant for the differing site/changed condition that caused the applicant to incur additional time and costs to verify a solution to account for the differing site/changed condition. The applicant achieved only limited success, with the Board granting in part the appeal, for fewer dollars based upon fewer days than the applicant sought. After the initial claim, the applicant pursued positions that were unrealistic, factually and legally. CBCA 7833-C(7472) 3 The applicant qualifies in terms of size (dollar value and number of employees) at the time the appeal was filed.