______________________________________________________________ MOTION FOR RECONSIDERATION GRANTED/GRANTED IN PART January 28, 1993 ______________________________________________________________ GSBCA 11278-C-R(8576) and 11279-C-R(8650) JORDAN & NOBLES CONSTRUCTION COMPANY, Appellant, V. GENERAL SERVICES ADMINISTRATION, Respondent. Jonathan D. Schwartz, Jr. of Studdard & Melby, El Paso, TX, counsel for Appellant. Melville H. Valkenburg and Gerald Lewis Schrader, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges PARKER, BORWICK, and WILLIAMS. BORWICK, Board Judge. Jordan & Nobles Construction Company has filed a motion for reconsideration of the Board's decision in Jordan & Nobles Construction Co. v. General Services Administration, GSBCA 11227- C, et al. (June 29, 1992), in which we awarded attorney fees and costs in the amount of $31,799.05 pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C. 504 (1988). Jordan & Nobles is now requesting additional fees in the amount of $24,592.50, on behalf of its subcontractor, CHR/Newbery Electric (CHR/Newbery). The supplemental application was filed by CHR/Newbery's attorneys. We grant the motion for reconsideration and award $2,459.25 in addition to the $31,799.05 already awarded. We do not grant the full amount of the supplemental application as Jordan & Nobles (sponsoring CHR/Newbery) did not succeed on all claims. Therefore, we reduce the amount to reflect the degree of success obtained. Background On December 31, 1990, the Board granted six of nineteen original claims, which arose out of the construction of the Federal Building in El Paso, Texas. The Board found that Jordan & Nobles was entitled to recover direct costs and remission of liquidated damages due to the Government's failure to make a timely decision on a change order (GSBCA 8576) concerning in part CHR/Newbery's installation of power poles on demountable partitions. We denied remaining direct costs for electrical work not associated with installation of power poles (electrical work above the drop ceiling and work on lighting fixtures). We granted costs for change orders involving electrical work and an exhaust fan (GSBCA 8575); direct costs and remission of liquidated damages for defective specifications involving some brick work for interior columns and a constructive change claim for exterior bricks (GSBCA 9928); direct costs for change orders for installing tamper switches (GSBCA 8650); and vinyl flooring outside the scope of the contract (GSBCA 8868). The appeal docketed as GSBCA 8650 was submitted on the record. We denied appeals involving a change order for alleged defective lighting fixtures (GSBCA 8648), and an omnibus delay claim (GSBCA 8351, 8353, 8584, 8647, 8649, 8757, and 9119). Jordan & Nobles Construction Co. v. General Services Administration, GSBCA 8349, et al., 91-1 BCA 23,659 (1990). On May 30, 1991, Jordan & Nobles filed a timely application under the EAJA, 5 U.S.C. 504 (1988), to recover attorney fees and expenses incurred in successfully litigating its appeals. It sought to recover a total of $73,530.26 for attorney fees, costs of depositions, special mailing, air travel, video production, and expert witness fees. On June 3, 1991, this EAJA application was supplemented by Jordan & Nobles to include $24,592.50, in attorney fees and costs incurred by its electrical subcontractor, CHR/Newbery. This supplement included a cover letter dated May 31, 1991, drafted by CHR/Newbery's counsel. Preliminarily, CHR/Newbery maintained that it was entitled to $35,357.07 in direct costs ($20,357.07 for the power poles in GSBCA 8576) and $15,000 for the tamper switches in GSBCA 8650. CHR/Newbery's attachments contained a schedule of attorney hours and related costs drafted by CHR/Newbery's attorney. The schedule did not contain a breakdown of services rendered by docket or by issue. Typical of the schedule was this: 8/08/90 WRM Review letter from attorney Schwartz re GSA audit of cost records substantiating portion of claim. [Hours] .40 Supplemental Application, Board Files. On August 6, 1991, Jordan & Nobles filed its brief entitled "Reply To Respondent's Opposition To Application For Fees And Expenses" with the Board. In this brief, appellant stated in pertinent part: Appellant's request for payment of attorney's fees is amended based upon the Board's decision in American Power, Inc., GSBCA No. 10558-C(8752) to eliminate fees incurred prior to the Contracting Officer's Decision in Docket 9928. The amended fee application breaks down by docket number as follows: Docket 8575 $ 412.00 Docket 8576 $17,785.00 Docket 8650 $ 385.00 Docket 8826 $ 1,050.00 Docket 8868 $ 425.00 Docket 9928 $26,093.00 Application $ 550.00 Total $46,700.00 The foregoing information is from Exhibit B to Appellant's application filed on May 30, 1991 as amended and attached hereto. On June 29, 1992, the Board issued a decision granting in part Jordan & Nobles request for fees and costs, and awarded $31,799.05. Jordan & Nobles Construction Co. v. General Services Administration, GSBCA 11227-C, et al. (June 29, 1992). Discussion A subcontractor is not considered a "party" for purposes of recovering fees and expenses under EAJA, and must be sponsored by the prime contractor in any action against the government. See, e.g., Southwest Marine, Inc. v. Department of the Navy, ASBCA 36287 93-1 BCA 25,225; Teton Construction Co., ASBCA 27700, et al., 87-2 BCA 19,766. Here, Jordan & Nobles sponsored CHR/Newbery and the filing of the supplemental application was proper. Respondent's argument that the application is to be viewed solely as the application of CHR/Newbery and deemed untimely is rejected. The supplemental application was that of Jordan & Nobles sponsoring CHR/Newbery and relates back to the filing of the original application. However, when appellant filed its final brief with the Board on August 6, amending the amount of its EAJA action, it failed to include the $24,592.50 claimed on behalf of CHR/Newbery. We thus considered the supplemental claim abandoned. However, in light of the request for reconsideration, we will now revisit the supplemental application. The EAJA provides that an administrative agency shall award fees and expenses "to a prevailing party other than the United States" unless the adjudicative officer finds that the position of the agency is "substantially justified." 5 U.S.C. 504(a)(1). The EAJA, however, is not an automatic fee shifting device. Gavette v. Office of Personnel Management., 785 F.2d 1568 (Fed. Cir. 1986). We have already found in our earlier opinion that the position of the Government was not substantially justified in defense of GSBCA 8576 and 8650. Jordan & Nobles Construction Co. v. General Services Administration, GSBCA 11227-C, et al. (June 29, 1992). A party must be a prevailing party, i.e., a party succeeding on any significant issue which achieves some of the benefits sought by the suit. Owen v. United States, 861 F.2d 1273, 1274 (Fed. Cir. 1988). Even if a party is deemed to be prevailing, where that party has attained only limited success in litigating distinct claims, the award amount should be reduced to reflect the degree of success obtained. Id. at 1274; cf. Hensley v. Eckerhart, 461 U.S. 424, 434-35 (1983) (construing language similar to EAJA in fee shifting statute of Civil Rights Act). In such a case, "the applicant should exercise billing judgment with respect to hours worked . . . and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims." Hensley, 461 U.S. at 437. These issues were not insignificant. By the same token, they were not pivotal either. Jordan & Nobles did not prevail on the larger elements of its extended overhead claim based on an alleged suspension of work and equitable adjustment for demountable partition claims. Jordan & Nobles did prevail on its pivotal claim for extra brick work, but that had nothing to with electrical work. As Jordan & Nobles (sponsoring CHR/Newbery) has failed to segregate its fees and expenses based on distinct claims, we cannot award the full amount sought. We must reduce the amount sought to reflect the degree of the success obtained. Id. at 434-35. Our review of the supplemental schedules causes us to conclude that Jordan & Nobles is entitled to ten percent of the amount sought, or $2,459.25. Jordan & Nobles (as sponsors of CHR/Newbery) had limited success in recovering for extra electrical work. CHR/Newbery was only able to claim $35,357.07 in direct costs, having prevailed on a minor docket submitted on the record and only partially on another docket. Decision Accordingly, this motion is GRANTED. Jordan & Nobles (on behalf of its subcontractor CHR/Newbery) is awarded $2,459.25. This is in addition to the $31,799.05 awarded by our decision of June 29, 1992. ___________________________ ANTHONY S. BORWICK Board Judge We concur: __________________________ ___________________________ ROBERT W. PARKER MARY ELLEN COSTER WILLIAMS Board Judge Board Judge