             ARMED SERVICES BOARD OF CONTRACT APPEALS

Application Under the Equal Access            )
 to Justice Act of --                         )
                                              )
Avant Assessment, LLC                         )      ASBCA No. 58867
                                              )
Under Contract No. W9124N-10-C-0109           )

APPEARANCES FOR THE APPELLANT:                       Dirk Haire, Esq.
                                                     Sean Milani-nia, Esq.
                                                     Rachel 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, Esq.
                                                     Kyle E. Chadwick, Esq.
                                                      Trial Attorneys

              OPINION BY ADMINISTRATIVE JUDGE MCILMAIL

      Appellant, Avant Assessment, LLC, applies for fees in ASBCA No. 58867,
pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504. Pursuant to our
2 March 2016 order, we address entitlement only.

       On 14 October 2015, the Board denied the government's motion for reconsideration
of an 11 August 2015 opinion granting summary judgment for Avant. Avant Assessment,
LLC, ASBCA No. 58867, 15-1 BCA ~ 36,137. In granting summary judgment, the Board
sustained ASBCA No. 58867, converting the government's termination of the contract
referenced above (a contract for 3,300 foreign language test items) from one for cause to
one for the convenience of the government. Avant Assessment, LLC, ASBCA No. 58867,
15-1BCA~36,067 at 176,129. Avant's 1March2016 fee application is timely; it was
filed within 120 days after our denial of the government's motion for reconsideration. See
HSQ Technology, ASBCA No. 32272, 88-3 BCA ~ 21,144 at 106,742.

       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.
5 U.S.C. § 504(a)(l). Whether the position of the agency was substantially justified shall
be determined on the basis of the administrative record, as a whole. Id. For purposes of
EAJA, and pursuant to 5 U.S.C. § 504(b)(l)(B)(ii), a "party" includes any corporation the
net worth of which did not exceed $7,000,000 at the time the adversary adjudication was
initiated, and which had not more than 500 employees at the time the adversary
adjudication was initiated.

       The party seeking an EAJA award "shall also allege that the position of the United
States was not substantially justified." 5 U.S.C. § 504(a)(2). The government has the
burden of demonstrating that its position was substantially justified or that special
circumstances make an award unjust. E. C. Schleyer Pump Co., ASBCA No. 33900, 89-1
BCA ~ 21,194 at 106,957. In determining whether the position of the government was
substantially justified, we need to determine whether that position was justified to a degree
that would satisfy a reasonable person. Id.

       The government does not contend that there are special circumstances that would
make an award unjust. The application demonstrates that Avant's net worth did not exceed
$7,000,000 at the time it filed ASBCA No. 58867 (EAJA appl., Haakanson aff. & ex. A).
Although Avant contends that it had fewer than 500 employees when it filed the appeal, the
affidavit it cites in support does not address the issue (EAJA appl. at 3, Haakanson aff.).
Nevertheless, the government "does not dispute that Appellant is an eligible party for
EAJA fees under 5 U.S.C. § 504(b)(l)(B)(ii)" (gov't resp. at 2); we take that as a
concession that Avant had fewer than 500 employees when it filed the appeal, and find that
Avant is a "party" for purposes ofEAJA.

        The government argues that ASBCA No. 58867 is not final, and that Avant's fee
application is, therefore, premature, because we consolidated ASBCA No. 58867 with
ASBCA Nos. 58986 and 59713, which are pending and concern the same contract as does
ASBCA No. 58867. However, the government points out that ASBCA No. 58986 concerns
whether Avant owes the government money, and that ASBCA No. 59713 concerns whether
the government owes Avant money (gov't br. at 1). Because those appeals present different
legal and factual issues than did ASBCA No. 58867 (which, of course, concerned whether
the termination of the contract for cause was justified), ASBCA No. 58867 retained its
identity separate from those other appeals; consequently, the consolidation of the three
appeals was in the interest of judicial economy and convenience only, and did not merge
them into a single appeal. See generally Allied Repair Service, Inc., ASBCA No. 26619,
82-1 BCA ~ 15,785 at 78,163 (distinguishing between partial and complete consolidation).
The government invokes the doctrine of "finality," which requires that a judgment have
"wholly disposed of a case, adjudicating all rights and ending the litigation on the merits,"
AAA Engineering & Drafting, Inc. v. Widnall, 129 F.3d 602, 604 (Fed. Cir. 1997), but our
decision granting summary judgment in ASBCA No. 58867 wholly disposed of that appeal:
we sustained the appeal in its entirety, converting the termination to one for the convenience
of the government, leaving nothing left for us to adjudicate. See Avant Assessment, 15-1
BCA ~ 36,067 at 176,129. Consequently, we reject the government's prematurity argument.

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Moreover, because we sustained ASBCA No. 58867, Avant is the prevailing party in that
appeal for purposes ofEAJA. See Lasmer Industries, Inc., ASBCA No. 56411, 10-2 BCA
~ 34,491at170,123.


        Substantial justification

        Avant alleges that the government's position was not substantially justified, stating
that "[t]o say that the Government's position was not substantially justified is an
understatement" (EAJA appl. at 5). The government contends, but fails to demonstrate, that
its position was substantially justified. The government contends that its "overall position,
conveyed across its Answer, Response to Appellant's Motion for Summary Judgment, and
Motion for Reconsideration, was that appellant's contract was justifiably terminated for
cause after appellant repeatedly disregarded or failed to meet its contractual delivery
schedule and repeatedly failed to submit the contracted-for number of acceptable items"
(gov't resp. at 7). With respect to the answer, the government fails to point to any portion of
that pleading to support its contention, and the Board will not undertake its own examination
in an attempt to ferret out such support.

        With respect to the government's response to appellant's motion for summary
judgment, in requesting summary judgment Avant relied upon Modification No. P00005 to
the contract, which, Avant argued, conformed the scope of the contract "to the number of
 items the Government ultimately accepted" (app. summ. j. mot. at 15). In response, the
government argued in conclusory fashion that Avant's interpretation of Modification
No. P00005 "defies common sense and applies an interpretation to one sentence of
Modification P00005 that is inconsistent with the language of the Contract and the conduct
of the parties," and that "[b]ecause [the contract] was terminated for cause based on Avant's
failure to deliver the required number of acceptable test items, this is a genuine dispute as to
a material fact" (gov't resp. at 4 (footnote omitted, emphasis added)). 1 In granting summary
judgment for Avant, we held:

               The only justification that the government offers for
               terminating the contract for cause is that, it contends,
               Avant "fail[ed] to deliver the required number"-3,300-"of
               acceptable test items." ... However ... with Modification
               No. P00005, the contract no longer required Avant to
               deliver 3,3[0]0 acceptable items; rather, any shortfall from
               that number would be removed "automatically" from the
               contract's scope .... Consequently, we agree with Avant
               that, as of... the date that the parties entered into

1
    In the footnote omitted above, the government cited and provided a parenthetical
         explanation of NVT Technologies, Inc. v. United States, 370 F.3d 1153 (Fed.
         Cir. 2004).
                                            3
              Modification No. P00005, delivering fewer than
              3,300 acceptable items was not cause for terminating the
              contract.

Avant Assessment, 15-1 BCA ~ 36,067 at 176, 129 (emphasis added, citations omitted).

       Having failed to prevent summary judgment against it, the government moved for
reconsideration with a different argument: that Avant had not complied with the contract's
delivery schedule. We denied the motion, holding that:

                     Essentially, the government appears to be arguing
              that Avant did not deliver a required number of test items,
              regardless of their acceptability. That is an argument not
              advanced in response to the motion for summary judgment.

Avant Assessment, 15-1BCA~36,137 at 176,386. Furthermore, we held that although the
government "could have advanced that argument in its response to the summary judgment
motion," "[f]or whatever reason, it did not; not even the government suggests otherwise." Id.

        From that sequence of events we find that the position of the government was not
justified to a degree that would satisfy a reasonable person; therefore, the government fails to
demonstrate that its position was substantially justified. When called upon to defend its
termination of the contract against a request for summary judgment, the government
advanced a single position (item unacceptability) that failed adequately to account for a
pre-termination contract modification. When, accordingly, summary judgment was entered
against it, the government requested reconsideration based upon a different argument (failure
to deliver a required quantity) that it could have advanced in opposition to summary
judgment, but did not. Whether we would find substantial justification had the government
responded to the summary judgment motion with its reconsideration argument, we cannot
say; we will not entertain on the merits, during the fee application stage, an argument we
rejected-essentially for untimeliness-during the litigation stage. After all, a request for
attorney's fees should not result in a second major litigation. E.g., Watsky Construction Co.,
ASBCA No. 41541, 95-2 BCA ~ 27,889 at 139,137 (quoting Hensley v. Eckerhart, 461 U.S.
24, 437 (1983)).

       We reject the government's other arguments regarding substantial justification. The
government contends that its pleadings and briefings in ASBCA Nos. 58986 and 59713 factor
into whether its position in ASBCA No. 58867 was substantially justified, because the Board
consolidated the three appeals (gov't resp. at 7). We disagree with that conclusion for the
same reasons that we reject the government's prematurity argument: ASBCA No. 58867 was
always its own, separate appeal.



                                            4
                                       CONCLUSION

       Avant is awarded reasonable attorney's fees and other expenses incurred in the course
of these appeals. The application is remanded to the parties for the negotiation of quantum.

      Dated: 12 July 2016




                                                 tIMOTHY p       CILIL
                                                 A:::e;udge
                                                 Armed Services Board
                                                 of Contract Appeals


 I concur
                                                  lcotEJ
                                                  RICHARD SHACKLEFORD
Administrative Judge                              Administrative Judge
Acting Chairman                                   Vice Chairman
Armed Services Board                              Armed Services Board
of Contract Appeals                               of Contract Appeals



       I certify that the foregoing is a true copy of the Opinion and Decision of the Armed
Services Board of Contract Appeals on an application for fees and other expenses incurred
in connection with ASBCA No. 58867, Appeal of Avant Assessment, LLC, rendered in
accordance with 5 U.S.C. § 504.

      Dated:



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




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