Board of Contract Appeals General Services Administration Washington, D.C. 20405 ___________________________________________ GRANTED IN PART: October 28, 1998 ____________________________________________ GSBCA 13874-C(12915) HERMAN B. TAYLOR CONSTRUCTION CO., Applicant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Christina Stone of Gaughan & Stone, Houston, TX, counsel for Applicant. Kevin M. Myles, Office of Regional Counsel, General Services Administration, Fort Worth, TX, counsel for Respondent. Before Board Judges BORWICK, NEILL, and HYATT. BORWICK, Board Judge. Herman B. Taylor Construction Company (applicant), under the Equal Access to Justice Act, 5 U.S.C. 504 (Supp. II 1996), seeks reimbursement of $89,836.03 for attorney fees and expenses as the prevailing party in the appeals of Herman B. Taylor Construction Co. v. General Services Administration, GSBCA 12961 (June 24, 1998) and Herman B. Taylor Construction Co. v. General Services Administration, GSBCA 12915, 96-2 BCA 28,547, reconsideration denied, 97-2 BCA 29,127. Applicant meets EAJA's eligibility criteria. Applicant was the prevailing party in GSBCA 12915; we conclude that the position of the Government in that docket was not substantially justified. We conclude that of the time and expenses applicant's attorney devoted to litigating the claims in GSBCA 12915 and GSBCA 12961, fifty percent was devoted to the former case. Applicant is consequently entitled to be reimbursed at the rate of $75 per hour for half of the attorney hours billed as reflected in the fee schedule. Applicant is also entitled to half of the attorney expenses and paralegal costs, eighty percent of the expert witness fee, and the attorney fee for preparing the application. Applicant is entitled to a total of $28,297.61 for allowable fees and expenses. Eligibility Under the EAJA a party eligible for reimbursement of costs is defined as "any . . . corporation . . . the net worth of which did not exceed $7,000,000 at the time the adversary adjudication was initiated, and which had no more than 500 employees at the a time the adversary adjudication was initiated." 5 U.S.C. 504(b)(1)(B)(ii). Applicant is a firm which, when applicant initiated these appeals, had a net worth that did not exceed $7,000,000 and had no more than 500 employees. Affidavit of Herman B. Taylor (Sept. 18, 1996) (Taylor Affidavit). Prevailing Party EAJA provides that an agency that conducts an adversary adjudication shall award, to an eligible prevailing party, 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)(1). A prevailing party is one who succeeds on any significant issue in the litigation which achieves some of the benefit the party sought in bringing suit. Cf. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (construing analogous fee shifting provision in Civil Rights Act). Applicant is the prevailing party in GSBCA 12915. The appeal was filed at the Board on July 25, 1994. The dispute concerned the pricing of a contract change which involved the reworking and subsequent foundation pour for the generator building to be constructed under the contract. The Government had originally estimated the cost of the change to be $24,604.04, and eventually offered $12,800.61 more. We determined, however, that applicant was entitled to $62,046.57 for the cost of the change. We concluded that an unreasonable delay of two and three-quarters months caused by the Government's suspension of work before the issuance of the change caused the existing foundation excavation to be ruined, requiring applicant to spend money on a consultant, equipment and labor to re- excavate and pour the foundation. A patent Government error in specifying the depth of the excavation exacerbated the problem. Applicant prevailed and obtained a substantial additional award. In GSBCA 12961, the Board sustained the Government's termination for default; applicant, therefore, did not prevail on that docket. Substantial Justification It is the Government's burden to show that the position of the agency was substantially justified. Fanning, Phillips & Molnar, VABCA 3856E, 97-2 BCA 29,008, at 144,503. Whether or not the position of the agency is substantially justified is to 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). We are "to look at the entirety of the Government's conduct and make a judgment call whether the Government's overall position had a reasonable basis in both fact and law." Chiu v. United States, 948 F.2d 711, 715 (Fed. Cir. 1991). Here, the Government argues that its refusal to provide applicant with additional compensation for the changed work was substantially justified because "the contracting officer could not obtain from [applicant] the information required to support or approve a claim." Respondent's Opposition at 3. Respondent finds support for this argument in the Board's use of the jury verdict method to price certain elements of the changed work. [Foot # 1 ] ****************** Footnote Begin ********** [Foot # 1 ] The Board used a jury verdict to arrive at an estimate of rental rates for contractor-owned idle equipment and to determine the ratio of time spent by appellant's project manager on the changed work as against the unchanged work. Herman B. Taylor Construction Co., 96-2 BCA at 142,531. ****************** Footnote End ************ The Government initially priced the cost of the changed work on the contracting officer's technical representative's (COTR's) estimate of the additional work which was in excess of what the COTR considered base bid work. Herman B. Taylor Construction Co., 96-2 BCA at 142,524. We concluded that respondent had not fully considered the full impact on the contractor's cost of both the lengthy suspension of work preceding the change and the significance of the change on the contractor's forces. [Foot # 2 ] See id. at 142,530-31 (discussion of items six and thirteen). ****************** Footnote Begin ********** [Foot # 2 ] We noted that the cost impact on the contractor is the starting point for the pricing of a change. Herman B. Taylor Construction Co., 96-2 BCA at 142,529. ****************** Footnote End ************ The record does not support respondent's suggestion that the Government's position would have shifted significantly if applicant had provided additional cost back-up information. On January 10, 1994, the contracting officer requested all of the original invoices for the claim, which applicant submitted three days later. Appeal File, Exhibits 63-64. After several additional submittals from applicant, the contracting officer advised applicant that she was in the process of reviewing the claim and associated back-up information; she did not seek additional documentation. Id. The contracting officer issued her initial response to appellant's claim on April 13, 1994 and her decision on May 6, 1994. Appeal File, Exhibits 70, 73. Of the sixteen items she considered, the contracting officer denied only one--fifteen-- for lack of information. Id. The Board's use of a jury verdict simply has no relationship to the contracting officer's consideration of the claim. Apportionment to reflect degree of success obtained Applicant claims a total of $89,836.03--$88,836.03 for the appeals and $500 for preparation of the EAJA application. The claim also includes $7579.04 in fees and expenses for appellant's expert witness who testified at trial and who billed his time at $100 per hour. [Foot # 3 ] ****************** Footnote Begin ********** [Foot # 3 ] EAJA provides that "no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the agency involved." 5 U.S.C. 504(b)(1)(A)(i). The agency has not demonstrated that the expert witness's rate was in excess of the highest rate of compensation for the expert witnesses paid by respondent. ****************** Footnote End ************ Respondent argues that the fee and expense schedule presented by applicant is insufficiently informative for the Board to determine whether the fees were generated in the underlying litigation or whether the fees were generated by counsel or a paralegal. Respondent's Opposition at 11-12. We disagree. Appellant's schedule describes the number of hours worked, and the work performed by counsel. The schedule provides the billing rate charged and the work done. From these two items, it is possible to determine whether the work was performed by counsel or a paralegal. Applicant in its schedule shows a claim based on 527.06 attorney hours and 15 paralegal hours. Respondent questions whether all the attorney hours on the schedule were devoted to the Board appeals. Applicant appears to claim 25.56 attorney hours billed between June 19 and July 25, 1994 on an unrelated action in United States District Court. We subtract those hours from the total claimed. Appellant's attorney devoted 501.50 hours to these appeals. The Board must make a determination as to the reasonableness of both the hours spent on the litigation and the attorney's rate. American Power, Inc., GSBCA 10558-C (8752), 91-2 BCA 23,766. During the prehearing stage of these consolidated appeals, the Board issued rulings on respondent's motions to dismiss for lack of jurisdiction and for summary relief, as well as on respondent's claim of attorney-client and attorney work product privilege. The hearing on these appeals took five days and involved testimony by eighteen witnesses. In view of the extensive pre-trial proceedings, the length of the trial and the number of witnesses involved, the number of hours spent by appellant's attorney is reasonable. Cf. Greenville Storage & Investment v. General Services Administration, GSBCA 13547-C(12989) (Aug. 25, 1998). We consider the hourly rate. For adversary adjudications commenced before March 29, 1996, applicant is entitled to reimbursement of its attorney fees at the rate of $75 per hour, unless the agency determines by regulation that the cost of living justifies a higher fee or determines that a special factor, such as the limited availability of attorneys for the proceedings involved, justifies a higher fee. 5 U.S.C. 504(b)(1)(1994); Pub. L. No. 104- 121, 110 Stat. 862, 864 (1996). Applicant has not demonstrated that a higher rate is justified based upon the complexity of the litigation. In this regard, avoidance of EAJA's rate cap requires more than a showing of the competent legal representation that appellant's counsel provided in this matter. The applicant must demonstrate that the litigation required distinct knowledge and skill as opposed to general legal competence. American Power, Inc., 91-2 BCA at 119,047 (citing Pierce v. Underwood, 487 U.S. 552 (1988)). Thus, construction contract law experience will be a special factor only in highly complex cases where such experience is essential to prosecute the case. Id. Appellant's attorney specializes in construction law. The generator building claim, however, was not factually complex and the legal issue--the pricing of a change order--was prosaic. Applicant claims $40 per hour for paralegal services; respondent does not challenge that rate. Where several appeals are tried together, the Board must apportion the litigation effort among the appeals, to reflect the degree of success obtained. Jordan & Nobles Construction Co. v. General Services Administration, GSBCA 11278-C-R(8576), 93-2 BCA 25,741; cf. Fanning, Phillips & Molnar, 97-2 BCA at 144,504 (apportioning between two appeals). Our familiarity with the record in this case permits us to conclude that appellant's litigation effort was evenly split between litigating the issues in GSBCA 12961 and GSBCA 12915. Applicant is therefore entitled to fifty percent of the allowable reasonable fees and allocable expenses in handling the litigation, since applicant spent fifty percent of the effort on the successful changes claim. Applicant is also entitled to eighty percent of the expert witness fee and expenses since the consultant spent approximately that percentage of time testifying on the changes claim. Applicant claims $5369.46 as expenses, but $113.20 of those expenses were generated in connection with the United States District Court proceeding. The remaining attorney litigation expenses totaled $5256.26, for long distance phone calls, parking, postage, photocopying, telecopying, and the hearing transcript relating to these appeals. These are the categories of expenses that our appellate authority held are within a court's or board's discretion to award under EAJA, Oliveira v. United States, 827 F.2d 735, 743 (Fed. Cir. 1987), and are expenses which boards have awarded on a pro-rata basis. Fanning, Phillips & Molnar, 97-2 BCA at 144,507. Applicant's schedule demonstrates that these expenses were in connection with the underlying appeals. We award applicant fifty percent of the incurred expenses. Our summary of applicant's EAJA award is reproduced in the table immediately below: Item Hours Rate Percentage Total Attorney 501.50 $75.00 50 $18,806.25 Paralegal 15.00 $40.00 50 $300.00 Amount Expenses $5,256.26 50 $2,628.13 Expert $7,579.04 80 $6,063.23 EAJA petition $500.00 $500.00 Total $28,297.61 Decision The application is GRANTED IN PART. Applicant is entitled to an award of $28,297.61 of allowable fees and expenses under the EAJA as the prevailing party in GSBCA 12915. _______________________________ ANTHONY S. BORWICK Board Judge We concur: ___________________________ _______________________________ EDWIN B. NEILL CATHERINE B. HYATT Board Judge Board Judge