GRANTED IN PART: March 8, 1993 GSBCA 12174-C(11251) UNIVERSAL DEVELOPMENT CORPORATION, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Kenneth K. Takahashi of Takahashi & Associates, P.C., Rockville, MD, counsel for Appellant. Gerald L. Schrader, Real Property Division, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), LaBELLA, and HYATT. DANIELS, Board Judge. Universal Development Corporation (UDC) has filed an application, as permitted by the Equal Access to Justice Act (EAJA), 5 U.S.C. 504 (1988), for reimbursement of attorney fees and other expenses it incurred in prosecuting its appeal of a General Services Administration (GSA) contracting officer's decision before this Board. This application, filed on November 12, 1992, is in the amount of $5,257. Background The appeal which underlies this application involved an equitable adjustment to a lease for court and court-related space in an office building. The Government had asked the lessor, UDC, to provide more parking spaces than were specified in the lease; the case required this Board to determine the number of such additional spaces and the fair rental value of them. The matter in dispute had been the subject of sporadic discussion between the parties from 1982, when the building was under construction, until 1992, when we issued our decision, Universal Development Corp. v. General Services Administration, GSBCA 11251 (Sept. 15, 1992). In 1984, GSA's contracting officer proposed payment of fifteen dollars per month for each of fifteen spaces, a total of $225 per month. Id., slip op. at 5, 7. UDC rejected this offer, asking that the monthly payments either be adjusted in accordance with changes in the Consumer Price Index or fixed at higher rates in specified years. Id. In 1991, the contracting officer issued the decision from which the appeal was taken. At that time, he determined that UDC was not entitled to any adjustment in the lease price because the extra parking spaces had been provided as the result of a directive of the local, rather than federal, Government. Id., slip op. at 6. At a conference convened by the Board just before the hearing on the merits of the case, Government counsel acknowledged that UDC was entitled to payment for thirteen additional spaces, at a rate of fifteen dollars per space per month -- a total of $195 each month. Id.; Board's Memorandum of Conference of June 16, 1992, GSBCA 11251 et al., at 3. We ultimately adopted this position, and found as well that the lease does not contain a requirement for indexing of the rate. UDC v. GSA, slip op. at 7-8. Discussion The EAJA provides: 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 position of the agency was substantially justified or that special circumstances make an award unjust. 5 U.S.C. 504(a)(1) (1988). GSA's opposition to UDC's application for costs centers on the reasonableness of the agency's position. The statute permits the tribunal to deny an application if the agency's position was "substantially justified," a term that means "'justified in substance or in the main' -- that is, justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565-66 (1988). There can be no doubt that after the prehearing conference at which counsel acknowledged UDC's entitlement to much of the payment the lessor sought, the Government's position was not merely substantially justified, but completely justified. This is so because the Board's decision agreed with the position counsel espoused at that conference. Thus, all actions engaged in by UDC after the conference constituted "conduct which unduly and unreasonably protracted the final resolution of the matter in controversy." 5 U.S.C. 504 (a)(3) (1988). Costs associated with those actions -- including all costs associated with the hearing in the case -- are not appropriate for an award under the EAJA. Id.; Commissioner, Immigration & Naturalization Service v. Jean, 496 U.S. 154 (1990). GSA suggests that UDC is not entitled to reimbursement of any of the litigation costs that were incurred prior to the conference, either. According to the EAJA, "Whether or not the position of the agency was substantially justified shall be determined on the basis of the administrative record, as a whole, which is made in the adversary adjudication for which fees and other expenses are sought." 5 U.S.C. 504(a)(1) (1988); see Chiu v. United States, 948 F.2d 711, 714-15 (Fed. Cir. 1991). For assistance in applying this instruction to the instant case, GSA looks to Marek v. Chesny, 473 U.S. 1 (1985). Marek involves another fee-shifting statute, 42 U.S.C. 1988, which requires the Government to pay costs of civil rights plaintiffs in certain circumstances. There, the Supreme Court explained, "In a case where a rejected settlement offer exceeds the ultimate recovery, the plaintiff -- although technically the prevailing party -- has not received any monetary benefits from the postoffer services of his attorney." The Court consequently denied the plaintiff's request that he be paid the costs resulting from those services. 473 U.S. 1 at 11. The "settlement offer" that GSA points to as exceeding the ultimate recovery in this case was the 1984 proposal that the agency pay UDC $225 per month, rather than the $195 that the Board awarded. Of course, this offer does not fit neatly into the usual situation, covered by Marek, in which settlement was proposed during litigation; the offer in the instant case was made seven years before the appeal was filed. What triggered the litigation was the contracting officer's 1991 decision that the Government owed UDC nothing at all -- a position which was completely at variance with the facts as derived from the agency's own records. Once that decision was issued, UDC had to put the case before the Board in order to get the result which was ultimately conceded and ordered. The agency's contention runs squarely into this Board's holding that when the contractor is entitled to some relief and the Government forces that contractor to litigate to obtain the relief, for the purpose of an EAJA application, the position of the Government is deemed to be not substantially justified. Gilroy-Sims & Associates v. General Services Administration, GSBCA 11778-C(8720) (Sept. 25, 1992). This rule is particularly salutary because the Contract Disputes Act of 1978 makes an administrative action -- the contracting officer's decision -- the signal event in resolving a dispute or forwarding it for potential litigation. 41 U.S.C. 605, 606 (1988). GSA is correct in observing that if UDC had accepted an agency offer in 1984, none of what followed would have transpired. The Government as well as the contractor walked away from that offer, however. By 1991, when UDC finally pressed for a final administrative determination, the contracting officer took an untenable position. Had he reviewed his own records fully, he would have found ample support for the position that Government counsel and the Board ultimately adopted. By failing to do this, he caused UDC to litigate -- and thus to incur attorney fees and expenses -- to recover money to which it was entitled. We consequently award to UDC all reasonable attorney fees and other litigation expenses (costs of transcripts and witnesses' travel) sought for the period of time between the contractor's receipt of the contracting officer's decision and the Board's prehearing conference. UDC is thus reimbursed for costs associated with depositions, but not the hearing in the case. Calculating a precise amount of recovery is made difficult by the fact that the application contains no supporting documentation. The amounts are small, however, and from our familiarity with the case and the general prices of the items involved, we are able to conclude that they are justified. We award to UDC $1,952.50 in attorney fees and $938.50 in other costs. These amounts include half of those items noted as relevant to both depositions and hearings. The only items specifically disallowed (in addition to all costs associated with the hearing) are $360 for UDC's office expenses, whose relevance to this litigation are not explained, and $205 for travel of UDC's president to depositions, which appears unjustified because the depositions and his home were both in the same city. The total amount awarded is $2,891. Decision The application is GRANTED IN PART. UDC is awarded $2,891 under the Equal Access to Justice Act, 5 U.S.C. 504 (1988). _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ VINCENT A. LaBELLA CATHERINE B. HYATT Board Judge Board Judge