MOTION FOR COSTS GRANTED IN PART: October 25, 1993 GSBCA 12390-C(11052) SECURITY SERVICES, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Barbara S. Kinosky of Kinosky & Associates, Arlington, VA, counsel for Appellant. Sharon Roach, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges LaBELLA, BORWICK, and NEILL. LaBELLA, Board Judge. Security Services, Inc. (SSI or applicant), has filed an application for attorney fees and expenses pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C. 504 (1988), incurred in its appeal of the General Services Administration's (GSA's or Government's) decision to withhold monies owing under contract GS-05P-86-GAC-0054 from final payment due to an alleged overpay- ment. We ruled in a decision dated November 10, 1992, that SSI was entitled to these withheld funds. The Government does not dispute SSI's status as a prevailing party or its eligibility to recover EAJA costs. However, GSA contends that its actions were substantially justified and disputes the quantum claimed. We find that GSA's position in withholding the funds and defending the ensuing litigation was not substantially justified and that SSI is eligible for an award of attorney fees and expenses under EAJA. The application is granted in the amount of $21,107.76. Background The events leading to GSA's decision to withhold monies owing to SSI from its contract to provide professional armed guard services at four Government facilities in Illinois are listed in the Board's decision in Security Services, Inc. v. General Services Administration, GSBCA 11052, 93-2 BCA 25,667 (1992). They are briefly summarized below. SSI was awarded a contract to provide armed guard services. The contract contained two wage determinations from the Depart- ment of Labor (DOL) which established the minimum wage at which SSI could compensate its work force. Eight months into the first contract period, the contracting officer issued modification nine to the contract which increased SSI's base year hourly price and cost to the Government for the provision of guard services. In return, SSI agreed to pay its employees in accordance with two recently issued DOL wage determinations which the modification made applicable to the contract. Subsequently, GSA decided that SSI had been overpaid as a result of modification nine and later modifications based on the rates contained therein. In its decision granting SSI's appeal, the Board found that the modification was a valid exercise of the contracting off- icer's authority supported by consideration. GSA argued that the modification was in error because the contract provided for such a modification to occur upon the exercise of the option period and it occurred prior to the option period. In making this argument, GSA argued that it was not estopped from recovering the funds and relied on the Supreme Court's decision in Office of Personnel Management v. Richmond, 496 U.S. 414 (1990) (hereinaf- ter OPM), which limited the instances in which estoppel is available against the Government. However, the Board stated that OPM was inapplicable and that Broad Avenue Laundry and Tailoring v. United States, 681 F.2d 746 (Ct. Cl. 1982), was controlling. In Broad Avenue, the court ruled that the Government was estopped from denying the validity of a contract modification prematurely incorporating a new wage determination because the mistake was within the contracting officer's area of actual authority. GSA argued that Broad Avenue's vitality after OPM was in question and, thus, its position was substantially justified. Discussion Substantial justification The EAJA provides that a prevailing party under an adjudica- tion conducted by the Government is entitled to an award of attorney fees and expenses unless the Government's position is substantially justified or special circumstances make an award unjust. 5 U.S.C. 504(a)(1)(1988). The Government has the burden of proving that its litigation position and the agency actions or omissions that formed the basis of the adjudication were substantially justified. Schuenemeyer v. United States, 776 F.2d 329, 330 (Fed. Cir. 1985); Warwick Holding Co., GSBCA 8459- C(5070) et al., 88-3 BCA 21,114, at 106,590. Substantial justification has been interpreted to mean "justified in sub- stance or in the main - that is, justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988). In determining whether the Government's position was sub- stantially justified, we do not end our inquiry with the fact that the Government lost the case. Instead, the test is whether the Government's position was reasonable in light of the law and the facts. Gavette v. Office of Personnel Management, 808 F.2d 1456, 1467 (Fed. Cir. 1986) (en banc). GSA contends that its position in recovering an overpayment to SSI was due to a contracting officer's mistake and was sub- stantially justified because the estoppel issue was unclear. In its opposition to the application, GSA asserts that in the wake of OPM, it was not clear whether estoppel could be used against the Government. GSA points to the Board's decision in Turner Construction Co. v. GSA, GSBCA 11361, 92-3 BCA 25,115, which questioned the vitality of Broad Avenue and the dissent in Security Services, Inc., as evidence that the issue was unset- tled. Thus, GSA argues, this uncertainty in the state of the law substantially justified its decision to recover the overpayment and to oppose SSI's appeal of that action. SSI disputes GSA's argument that the law concerning using estoppel against the Government was unsettled. SSI contends that the law was clear and that modification nine was a valid exercise of the contracting officer's authority which was supported by consideration. SSI asserts that GSA's decision to recover the overpayment was not legally sufficient to constitute substantial justification. After reviewing the arguments pertinent to the Government's position, we cannot find that its actions were substantially justified. Our appellate authority instructs us that "[t]he Government must show that it has not 'persisted in pressing a tenuous factual or legal position, albeit one not wholly without foundation.' It is not sufficient for the Government to show merely 'the existence of a colorable legal basis for the govern- ment's case.'" Gavette, 808 F.2d at 1467 (quoting Gava v. United States, 699 F.2d 1367, 1375 (Fed. Cir. 1983)). In making its arguments, GSA has advanced a tenuous position on the use of estoppel against the Government. The Government reasons that the issue was unclear because the Federal Circuit in JANA Inc. v. United States, 936 F.2d 1265 (Fed. Cir. 1991), the Board in Turner Construction, and the dissent in Security Servic- es, Inc., questioned whether estoppel could be used against the Government. The fact that the Government may have succeeded in convincing another tribunal that its position is correct does not mean that it was substantially justified in advancing that position in this appeal. "[T]he fact that one other court agreed or disagreed with the Government does not establish whether its position was substantially justified." Pierce, 487 U.S. at 569; see also Community Heating & Plumbing Co., Inc. v. Garrett, No. 92-1362 (Fed. Cir. Aug. 20, 1993); Schuenemeyer, 776 F.2d at 331 (Government's position is not substantially justified merely because it prevailed before a lower tribunal). Furthermore, while the clarity of the controlling law is one factor to examine when deciding the issue of substantial justifi- cation, see Drillers, Inc., EBCA 451-10-90(E), 91-3 BCA 24,197, at 121,023, the controlling law in this case was clear. As the majority stated, the Supreme Court in OPM specifically preserved the use of estoppel against the Government in cases where the representations made were within the scope of the agent's author- ity. See Security Services, Inc., 93-2 BCA at 127,687. This was the basis for the Broad Avenue decision and those principles controlled the outcome. Thus, even after OPM, the issue of estoppel against the Government was settled. GSA has not estab- lished that its position was substantially justified. Therefore, SSI is entitled to an award of reasonable fees and expenses. Hourly rate In support of its EAJA application, SSI submitted copies of billing statements for attorney fees which total $54,001.75. Keck, Mahin & Cate (Keck, Mahin) requested fees of $20,981.75 and Kinosky & Associates requested fees of $33,020. The fee request consists of 109.50 hours of attorney time by Keck, Mahin; 6.10 hours of paralegal time by Keck, Mahin; and approximately 177.50 hours by Kinosky & Associates. The application covers the period of October, 1990, through July, 1993. The attorney fees listed are based on hourly rates that range from $125 per hour to $225 per hour. The paralegal fees are based on hourly rates of $50 to $55 per hour. The Government has requested the Board to reduce the attor- ney fees because they exceed the statutory cap. The EAJA pro- vides that attorney or agent fees shall not be awarded in excess of $75 per hour unless the agency determines by regula- tion that an increase in the cost of living or a spe- cial factor, such as the limited availability of quali- fied attorneys or agents for the proceeding involved, justifies a higher fee. 5 U.S.C. 504(b)(1)(A)(1988). We have stated that there is no GSA regulation which provides that an increase in the cost of living requires an award at a fee higher than the statutory cap. Marty's Maid and Janitorial Service v. General Services Adminis- tration, GSBCA 11980-C(10614) et al., 93-2 BCA 25,713, at 127,926. SSI has made no attempt to argue that it is entitled to an increased hourly rate and, as the Government has correctly noted, has not even acknowledged that there is a statutory cap on fees. Furthermore, SSI has not broken down the claim to show exactly how many hours were staffed by each of its attorneys and by paralegals on the appeal. Counsel for applicant should have made a more diligent effort to conform to the requirements of the EAJA or at least make it appear that it completely read the statutory requirements. Accordingly, SSI is only entitled to reimbursement of discernible attorney time at the statutory rate of $75 per hour. Change of counsel during the proceedings During the course of the appeal process, SSI changed legal counsel from Keck, Mahin to Kinosky & Associates. The Government argues that SSI's change of legal representation resulted in duplicative charges and that it should not be made to pay for SSI's business decision to substitute counsel. The Board does not accept the Government's argument, and instead will examine whether the substitution slowed the appeal process and whether fees associated with the substitution are reasonable. See, e.g., White Buffalo Construction Co., IBCA 2918-F, et al., 91-3 BCA 24,221. The Government has not offered, and we do not find, any evidence that the fees were duplicative. Moreover, there is no indication that applicant changed counsel in order to delay the proceedings or abuse the judicial process in any way. The Board finds that the services performed by Kinosky & Associates after the change in counsel were reasonable, especially in light of the results achieved. However, we reduce a portion of the fees on other grounds. The Government has advanced several arguments concerning the propriety of entries made by both Keck, Mahin and Kinosky & Associates. We will deal with these arguments as they relate to each firm. Keck, Mahin Keck, Mahin submitted invoices covering the period of October, 1990, through September, 1991. Pursuant to the EAJA, SSI cannot recover any litigation costs incurred prior to the beginning of the adversary adjudication. We have held that the beginning of the adversary adjudication is the date on which the applicant received the contracting officer's final decision. Tele-Sentry Security, Inc. v. General Services Administration, GSBCA 11639-C(7703), 93-2 BCA 25,816, at 128,530. In this appeal, the contracting officer's final decision was rendered on October 9, 1990. Keck, Mahin's involvement began after the contracting officer's final decision and a fair amount of the charges incurred involved actions which are appropriate to the appeal process. With regard to these entries, we will accept these charges based on the representations made in Keck, Mahin's affidavit that the fees were related to the appeal. However, we disallow some charges incurred by Keck, Mahin for the reasons discussed below. The Government argues that a portion of the fees incurred by Keck, Mahin were not related to the appeal, but rather were related to an agency level protest involving another solicita- tion. SSI does not dispute this contention. The EAJA provides that "[a]n 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. . . ." 5 U.S.C. 504(a)(1988). The proceeding underlying this fee application is the appeal of the Government's decision to withhold money due to an alleged overpayment, not the protest of an unrelated solicitation. Keck, Mahin's invoices reveal that 25.30 hours were, either partially or wholly, spent on the protest. The hours at issue can be broken down as follows: 17.6 hours appear on invoice 94814 for October, 1990; 6 hours appear on invoice 108016 for November, 1990; 1.7 hours appear on invoice 102564 for December, 1990. On those occasions where Keck, Mahin only spent a portion of its billed hours on the protest, the invoices are not clear on how that time was apportioned between the protest and the appeal. The Supreme Court instructs us that the applicant "should main- tain billing time records in a manner which will enable a review- ing court to identify distinct claims." Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). It is impossible to determine how the time was apportioned for each claim from Keck, Mahin's invoices. We will disallow all the charges where entries show time spent on both the protest and appeal. Thus, we deduct 25.30 hours from the award for Keck, Mahin's fees. The Supreme Court has determined that hours which are excessive should be excluded from the fee request. Hensley, 461 U.S. at 434. The Government argues that applicant's counsel expended excessive effort on the appeal and raises two examples with reference to Keck, Mahin's charges. We agree with the Government's objections to Keck, Mahin's hours and add one of our own. GSA contends that the time spent on the notice of appeal was excessive. Keck, Mahin's invoices show that 17.55 hours were, partially or wholly, spent researching, drafting, reviewing, and revising the notice of appeal. Several of the entries associated with the notice of appeal even postdated the filing of the notice with the Board. The work occurred over a period of two months; eight hours appear on invoice 108016 for November, 1990, and 9.55 hours appear on invoice 107060 for January, 1990. Some of the entries involved show that Keck, Mahin's time was spent on several tasks. As with their entries involving the unrelated protest, counsel did not apportion the time between each task. Because it is impossible to determine how the time was appor- tioned and whether the charges are reasonable, we will assume all 17.55 hours were spent on the notice of appeal. The notice of appeal is a one page document which states that the appellant is appealing a final decision, and briefly describes the nature of the dispute and the relief sought. The notice does not require the details of the dispute or provide support for the arguments advanced. There is no reason why three attorneys spent over seventeen hours to complete this document. We will only allow two hours of this time and that amount is generous given the brevity of the information required. The Government contends that three attorneys from Keck, Mahin spent over fourteen hours researching and drafting a letter to the contracting officer concerning the agency level protest and the contracting officer's final decision. We have already deducted a portion of this time from the award because it was spent on the unrelated protest, not the appeal, and are left with 5.20 hours spent on the letter. Our examination of Keck, Mahin's records show that 2.5 hours appear on invoice 94814 for October, 1990, and 2.5 appear on invoice 108016 for November, 1990. Approximately half of the letter referred to the protest and the remainder was an attempt by SSI to have the contracting officer rescind the October 9, 1990, final decision. The contracting officer ultimately did rescind the October 9 decision, and the Government moved to dismiss the case for lack of jurisdiction on that basis. However, in the meantime, SSI changed counsel and its new counsel, Kinosky & Associates, opposed the rescission of the final decision and the motion to dismiss. Kinosky & Associates was successful in its efforts, and we denied the motion to dismiss. The Supreme Court has stated that the most critical factor in establishing a fee award is the degree of success achieved. Hensley, 461 U.S. at 436. As to the hours spent on this letter, Keck, Mahin was entirely unsuccessful and these hours will be deducted from the fee award. Keck, Mahin's invoices reveal that on October 23, 1990, 3.70 hours were spent researching applicable law and reviewing files. While the Government did not specifically object to this entry, we find that given Keck, Mahin's practice of bundling its charges for both matters, it is unclear whether this time was spent on the appeal or on the protest. Because we cannot identify the specific claim involved, we will deduct 3.70 hours from the fee award. Keck, Mahin billed SSI for 6.10 hours of paralegal time. One hour of this time was billed at $55 per hour and the remain- der was billed at $50 per hour. The paralegal's time was spent on the appeal and the Government has not objected to the hours. Paralegal fees can be recovered through an EAJA application. See Spectrum Leasing Corp. v. General Services Administration, GSBCA 10902-C(7347) et al., 93-1 BCA 25,317 (1992), at 126,513. We award SSI $310 for paralegal time. Kinosky & Associates Kinosky & Associates began representing SSI in August, 1991. An examination of its billing statements does not indicate that Kinosky & Associates represented SSI on any matters other than the appeal. With regard to these entries, we will accept these charges based on the representations made in Kinosky & Associ- ates's affidavit that the fees were related to the appeal. However, we disallow some charges incurred by Kinosky & Associ- ates for the reasons discussed below. The Government objects to some of the charges incurred by Kinosky & Associates, alleging that the time spent was excessive. GSA argues that it is unreasonable for Kinosky & Associates to have spent thirty-one hours on its response to the motion to dismiss. The Government did not raise any specific objections as to the unreasonableness of the time spent on the motion, but only alleged that the response did not address the jurisdictional issue it raised. Because the Government has not articulated any specific objections to the time, we deny the Government's request to reduce the fee award. The Government argues that Kinosky & Associates spent seventy-seven hours on the summary judgment motions and that this amount of time was excessive. It contends that the factual portion of SSI's motion was taken from earlier pleadings; the legal discussion was composed of lengthy recitations from cases; and that SSI failed to mention OPM or Turner Construction. The fact that counsel took the facts from an earlier pleading and quoted cases is not troublesome. Counsel still had to analyze the materials she did cite. Furthermore, there was no need to refer to OPM or Turner Construction when neither of those cases supplied the controlling law. Therefore, we deny the Govern- ment's request to reduce the fee award. The Government argues that some of the entries by Kinosky & Associates are too vague upon which to base an award. Our appellate authority instructs us that billing records need to consist of the "exact time spent on the case, by whom, their status and usual billing rates. . . ." Naporano Iron and Metal Co. v. United States, 825 F.2d 403, 404 (Fed. Cir. 1987). Kinosky & Associates has identified the task involved; the fee charges; and the attorney's billing rate in her billing state- ments. Where this is the case, the exact hours worked by the attorney can be computed. As we stated in Spectrum Leasing Corp., "we are not troubled by the brevity of some of these entries." 93-1 BCA at 126,148. There is enough information in each of the entries to determine the reasonableness of the fee. Thus, we need not reduce the fee on this ground. While the majority of Kinosky & Associates's billing entries satisfy the specificity requirements, we are troubled by two entries made in September, 1991, and January, 1992. The invoices show that a total of $2,157.50 was billed by Stephen Mims. While there is a notation which shows that a portion of this charge was for time spent on the Lexis on-line research system, it is unclear how much of the charge should be allocated to Lexis fees and how much to the attorney's. Furthermore, the billing entries do not indicate Mr. Mims' hourly rate or the exact hours spent on the project. Because of this dearth of information, we are unable to determine the reasonableness of the charge and disallow the entire $2,157.50 from SSI's fee award. SSI requested a total of $54,001.75 in attorney and parale- gal fees. In making our award, we have disregarded all fees incurred by Stephen Mims and have reduced the award to the EAJA's statutory ceiling. Accordingly, we find that SSI is entitled to attorney fees for 237.25 hours at the statutory rate of $75 per hour, for a total of $17,793.75, and $310 in paralegal fees. Expenses SSI seeks a total of $5,940.95 in disbursements: $921.84 incurred by Keck, Mahin and $5,019.11 incurred by Kinosky & Associates. While the Government has not raised any specific objections to the costs included in the fee application, we have independently examined the entries. Our appellate authority has instructed that we may award "those reasonable and necessary expenses of an attorney incurred or paid in preparation for trial of the specific case before the court, which expenses are those customarily charged to the client where the case was tried." Oliveira v. United States, 827 F.2d 735, 744 (Fed. Cir. 1987). In making our award, we are to use our discretion to determine whether an expense may be recovered. Id. Examples of expenses which are recoverable include photo- copying; printing and binding of briefs; telephone, postal, and overnight delivery charges; and computer-assisted research. See American Power, Inc., GSBCA 10558-C(8752), 91-2 BCA 23,766. The majority of the costs sought by SSI fall within one of those categories and will be allowed. However, some expenses fall outside those categories and will be disallowed for the reasons stated below. Kinosky & Associates included secretarial charges of $2,- 637.50 among the expenses charged to SSI. There is no indication of why this time was necessary or how it was spent; the billing rate of the secretary or secretaries involved; or whether the charges were for overtime or for temporary help to assist with the appeal. We totally disallow these charges. We have reached this decision not only because the invoices are not specific enough to determine the need and reasonableness of the expenses, but because secretarial costs are normally office overhead expenses and should be absorbed in the attorney fees charged to clients unless the demands of the case require supplemental services. That does not appear to be the situation here. Kinosky & Associates also included a disbursement of $299.44 under the heading "Legal Research" in its billing invoice for October, 1991. There is no indication that this research per- tained to the appeal; that it was a fee for computer-assisted research; or that Ms. Kinosky conducted any legal research during October, 1991. The billing statement must provide enough detail for us to judge the reasonableness of the expense involved. See Naporano Iron and Metal Co., 825 F.2d at 404. We will disallow expenses if an applicant does not explain how they relate to the litigation. See, e.g., Universal Development Corp. v. General Services Administration, GSBCA 12174-C(11251), 93-2 BCA 25836; American Power Inc., GSBCA 10558-C(8752), 91-2 BCA 23,767. Kinosky & Associates has not provided us with any detail on this expense or how it relates to the appeal, and we disallow the $299.44 claimed. We find that all $921.84 of the expenses incurred by Keck, Mahin are allowable and $2,082.17 of the expenses incurred by Kinosky & Associates are allowable. The total sum awarded to SSI for expenses is $3,004.01. Decision SSI's application under the EAJA for attorney fees and costs is GRANTED IN PART. We award SSI $17,793.75 in attorney fees; $310 in paralegal fees; and $3,004.01 in expenses, for a total of $21,107.76. VINCENT A. LaBELLA Board Judge I concur: ANTHONY S. BORWICK Board Judge NEILL, Board Judge, dissenting. I find myself unable to concur in the opinion of the majori- ty because I believe that GSA has demonstrated that its position in this case was substantially justified. The majority concludes that GSA's concern over the possible unavailability of an estop- pel argument to appellant in the wake of OPM was without justifi- cation. My colleagues reach this conclusion by relying upon language in the OPM decision which specifically preserved the use of estoppel against the Government in cases where the representa- tions made were within the scope of the agent's authority. This provision in the OPM decision is clear enough. The only difficulty in relying upon it here is that the record was never sufficiently developed to support a conclusion that the exception is applicable to the facts in this case. Indeed, as I pointed out in my dissent to the majority's decision granting appellant's motion for summary relief, the conclusion which should have been reached on this issue was that the exception preserved in OPM was not available. I dissented from the majority's decision granting appel- lant's motion for summary relief precisely because I considered the issue of whether there was adequate consideration for the price adjustment made in modification nine as clearly material to the case and unquestionably in dispute. Because the case had been presented to us to decide on motion for summary relief, I considered that the Board was obliged to draw an inference on this issue which was adverse to appellant, as the movant. In short, I believed that, for purposes of deciding this motion, we should have assumed that the consideration was inadequate. Presumably, this would have rendered the contracting officer's action outside the scope of his authority. Thus, for purposes of deciding the motion for summary relief, the exception preserved by OPM would have been inapplicable to the facts in this case. Unfortunately, the majority drew the opposite inference and thereupon promptly concluded that the exception was available. In deciding this case, the majority seized upon the excep- tion language of the OPM decision to lever conveniently its way out of the perplexing issue of whether an estoppel argument could still be used against the Government in the wake of OPM. Given GSA's theory of the case, this exception was inapplicable. The agency was left, therefore, to wrestle with the question raised by the OPM decision. It is no secret that the OPM decision raised a serious question regarding the future use of estoppel by contractor claimants and received considerable attention, at the time, among those working in the public contracts arena. If GSA acted reasonably in concluding that modification nine was outside the scope of the contracting officer's authority, then clearly its reluctance, at the time, to concede to appellant was substantially justified. Unfortunately we will never know the particulars of GSA's case on this issue. The Board drew its own inference on the issue of consideration without ever afford- ing GSA an opportunity to present evidence and argument on it. Under these circumstances, the benefit of the doubt should go to GSA and appellant's cost application should be denied. The Board, in granting appellant's motion for summary relief, has dealt unjustly with GSA. The injustice is only compounded by now granting appellant's application for costs. In short, the scope and application of OPM was not a fore- gone conclusion at the time GSA litigated this case. Absent clear-cut facts and applicable law, it is inappropriate to conclude that the Government's position was not substantially justified. In granting the present motion, the majority dispens- es with the threshold test under EAJA. For this reason, I respectfully dissent. __________________________ EDWIN B. NEILL Board Judge