CBCA 6255-C(5540)

GRANTED IN PART: May 13, 2019 CBCA 6255-C(5540) MARE SOLUTIONS, INC., Applicant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. James R. Mall of Meyer, Unkovic & Scott LLP, Pittsburgh, PA, counsel for Applicant. Neil S. Deol, Office of General Counsel, Department of Veterans Affairs, Decatur, GA, counsel for Respondent. Before Board Judges ZISCHKAU, RUSSELL, and O’ROURKE. O’ROURKE, Board Judge. Applicant, Mare Solutions, filed a timely request for attorneys fees and costs under the Equal Access to Justice Act. Mare’s application seeks fees in excess of the statutory rate. Because our authority is limited to the statutory rate, we grant the application in part. Background Facts The Project, The Appeal, and the Board’s Decision The Department of Veterans Affairs (VA) awarded Mare a firm fixed-price construction contract to build a two-story parking garage adjacent to the VA hospital in Erie, CBCA 6255-C(5540) 2 Pennsylvania. When the project was nearly complete, a dispute arose over electrical conduit that had buckled in several places. The VA determined that the buckling was due to a lack of expansion couplings which, it asserted, the contract required Mare to install. Mare disputed the VA’s interpretation of the contract and sought declaratory relief at the Board. On May 16, 2018, the Board agreed with Mare and granted its appeal. Mare Solutions, Inc. v. Department of Veterans Affairs, CBCA 5540, 18-1 BCA ¶ 37,048. The VA did not appeal the Board’s decision. Mare’s First EAJA Application On June 14, 2018, Mare filed an application for costs, fees, and interest pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 (2012), for reasonable time and expenses incurred related to CBCA 5540. Mare Solutions, Inc. v. Department of Veterans Affairs, CBCA 5540, 18-1 BCA ¶ 37,048, at 180,352. We dismissed that application as premature since the time for filing an appeal had not yet elapsed, and therefore, the decision was not considered final. 48 CFR 6101.30(b)(2018). Mare Solutions, Inc. v. Department of Veterans Affairs, CBCA 6165-C, 18-1 BCA ¶ 37,097. Mare’s Second EAJA Application On September 19, 2018, Mare timely re-filed its application for costs in the amount of $56,431.56. In its application, Mare requested an enhanced hourly rate for attorneys fees based upon its counsel’s construction law expertise. In the alternative, Mare requested a cost of living adjustment to the standard rate. The VA responded and asked that we deny the request in full because its legal posture was substantially justified. It further asserted that the Board lacked the authority to grant an enhanced hourly rate for attorneys fees or a cost of living adjustment to the standard rate. Mare amended its application on November 26, 2018, seeking additional fees for work performed during the EAJA application process. The revised total amount of Mare’s application was $58,436.51. Discussion Mare’s application for costs, fees and interest was filed pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 (2012). The EAJA provides that – an agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust. CBCA 6255-C(5540) 3 5 U.S.C. § 504(a)(1). The purpose of the law is “to eliminate the barriers that prohibit small businesses and individuals from securing vindication of their rights in civil actions and administrative proceedings brought by or against the Federal Government.” Systems Integration and Management, Inc. v. General Services Administration, CBCA 3815-C(1512), et al., 15-1 BCA ¶ 35,866, at 175,441, citing Scarborough v. Principi, 541 U.S. 401, 406 (2004) (quoting H.R. Rep. No. 96-1005, at 9 (1980)). To recover fees and other expenses under EAJA, an applicant must meet the following requirements.