CBCA 4750-C(3552)

GRANTED IN PART: August 31, 2016 CBCA 4750-C(3552) IMPACT ASSOCIATES, INC., Applicant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Andrew K. Wible and William F. Savarino of Cohen Mohr LLP, Washington, DC, counsel for Applicant. Michael J. Noble, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges VERGILIO, SHERIDAN,1 and ZISCHKAU. VERGILIO, Board Judge. Impact Associates, Inc. (applicant) prevailed in the appeal, Impact Associates, Inc. v. General Services Administration, CBCA 3552, 15-1 BCA ¶ 35,910, underlying this timely filed application for recovery pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 (2012). Maintaining that it satisfies the requirements in terms of net worth and number of employees and that the position of the Government was not substantially justified, the 1 Because of the retirement of one judge, the panel has changed from the underlying appeal. CBCA 4750-C(3552) 2 applicant seeks to recover $27,025.20 in attorney fees and costs. The General Services Administration (GSA) recognizes that the applicant was a prevailing party before this Board, does not challenge the net worth or size assertions, and does not allege that its position before the Board was substantially justified. However, GSA seeks to subtract from the relief sought the amount expended in initially pursuing the appeal at the Armed Services Board of Contract Appeals (ASBCA) (which dismissed the matter for lack of jurisdiction) and reduce the remaining amount by ten percent because the applicant did not recover the full amount of its claim (it dropped an item of recovery, reducing the amount sought by $40,000). The Board concludes that the applicant shall recover the full amount sought only for the period after receipt of the GSA contracting officer’s decision. The activities prior to receiving the denial of the claim underlying this appeal, while reasonable and necessary steps for the applicant to obtain relief, are not compensable. While the applicant dropped an item of relief from its claim, the record does not support the conclusion that the award of relief here should be reduced for that reason. The applicant recovers $5612.50. Findings of Fact By way of background, the applicant held a GSA schedule contract. The applicant entered into a no-cost task order contract with the United States Army Corps of Engineers (Corps) thereunder. The applicant provided technical assistance support to plan and conduct forums. Under the task order, the agreement provided that the applicant could not claim against the Government for any costs or other damages that the applicant might incur by Government-required changes, a reduction in participation, or withdrawal. Under the task order, the applicant retained mandatory registration and exhibition fees and sponsorship monies; these were the applicant’s sources of income under the task order. During an option year, the Corps required the applicant to eliminate all forms of corporate sponsorship, otherwise altered the applicant’s ability to recover its costs, and required the applicant to expend monies it would not have otherwise. Seeking to recover $215,183.79, in August 2010, the applicant submitted a certified claim to a Corps contracting officer, who denied the claim. The applicant appealed to the ASBCA on May 11, 2011. After twice concluding that it had jurisdiction, the ASBCA reconsidered the question in light of an opinion by the Federal Circuit issued on February 23, 2013, Sharp Electronics Corp. v. McHugh, 707 F.3d 1367, 1374-75 (Fed. Cir. 2013) (the court held that the ordering agency contracting officer has no authority to decide a claim requiring interpretation of the schedule contract), and on April 19, 2013, dismissed the appeal for lack of jurisdiction, concluding that the issue involved interpretation of the schedule contract. Impact Associates, Inc., ASBCA 57617, 13 BCA ¶ 35,289. Thereafter, the applicant referred the claim to a GSA contracting officer, who, in August 2013, affirmed the claim, seemingly in terms of entitlement only, because payment did not occur. Seeking to reduce the contracting officer’s decision to a final judgment, in CBCA 4750-C(3552) 3 September 2013 the applicant filed at this Board the appeal underlying this case.