ABCDE _______________________________ GRANTED IN PART: June 29, 1992 _______________________________ GSBCA 11277-C, 11278-C, 11279-C, 11280-C, 11281-C, 11282-C 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 LaBELLA, BORWICK, and HYATT. BORWICK, Board Judge. On May 30, 1991, Jordan & Nobles Construction Company (Jordan & Nobles) timely filed an application under the Equal Access to Justice Act, 5 U.S.C. 504 (1988), to recover attorney fees and expenses incurred in successfully litigating appeals related to the construction of the Federal Building in El Paso, Texas. On December 31, 1990, we granted six of the original nineteen claims, finding 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; costs for change orders involving electrical work and an exhaust fan; 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; and finally, direct costs for change orders for installing tamper switches and vinyl flooring outside the scope of the contract. Jordan & Nobles Construction Co., GSBCA 8349, et al., 91-1 BCA 23,659 (1990). Jordan & Nobles is now seeking to recover $46,700 for attorney fees; $4,049.05 for costs of depositions, special mailing, air travel, and video production; and $17,401.21 for expert witness fees. The Government opposes Jordan & Nobles' application for costs, arguing that it was "substantially justified" in litigating these claims, thereby preventing the recovery of any fees and costs by Jordan & Nobles. Alternatively, it asserts that if Jordan & Nobles is found to be entitled to recover any costs, the Board is precluded from awarding more than $75 per hour. For the reasons stated below, we grant Jordan & Nobles' motion in part and award attorney fees and costs in the amount of $31,799.05. Discussion The Equal Access to Justice Act (EAJA), allows a party that prevailed in litigation against the United States to recover attorney fees and costs when it has established that the Government's legal position was not substantially justified. The EAJA specifically 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, 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. 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). The EAJA requires that in order to recover fees and costs, the party must establish that it prevailed on any significant issue in the appeal, and that as a corporate entity it had a net worth of less than $7,000,000 and employed fewer than 500 persons at the time of the appeal. See 5 U.S.C. 504(a)(2), (b)(1)(A). If these criteria are met, the EAJA allows parties to recover fees at the "prevailing market rates for the kind and quality of the services furnished," as long as that rate does not exceed $75 per hour. Id. 504 (b)(1)(B). Jordan & Nobles is considered a "prevailing party" as the Board granted six of the original nineteen appeals filed in this case. Furthermore, at the time of filing this action its net worth was approximately $466,933, and it employed a total of fifty-four employees. See Affidavit of Kelly Gallagher (May 30, 1991). Jordan & Nobles has attempted to persuade us that it is entitled to recover attorney fees at the rate of $100 per hour, due to the complex legal nature of this case, and because $100 is the usual and customary charge for legal services performed by an experienced attorney in El Paso, Texas. The Act however, specifically provides that: [a]ttorney and or agent fees shall not be awarded in excess of $75 per hour unless the agency determines by regulation that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys or agents for the proceedings involved, justifies an award at a higher rate. 5 U.S.C. 504(b)(1)(A). Accordingly, we cannot award attorney fees in excess of $75 per hour unless there are special factors that warrant such an increase. Jordan & Nobles has failed to present any credible evidence regarding special factors, except to argue that this was a complex case as it was required to defend against a motion for summary relief. While the case was factually complicated and lengthy, merely responding to a motion for summary relief is not indicative of an unusually complex case. Nor do we believe that this case required complex legal analysis sufficient to invoke the special factors exception to $75 per hour cap. Under these circumstances we are unable find a basis to award any attorney fees at a rate higher than $75 per hour. Pierce v. Underwood, 487 U.S. 552 (1988); American Power, Inc., GSBCA 10558-C, 91-2 BCA 23,766 (1991). Once a party has demonstrated eligibility under EAJA, it then becomes the Government's burden to present evidence that its position in litigation on the original appeal was "substantially justified." The Supreme Court has defined this term to mean: `justified in substance or in the main' - that is, justified to a degree that could satisfy a reasonable person. That is no different from the `reasonable basis both in law and fact' formulation . . . . To be `substantially justified' means, of course, more than merely undeserving of sanctions for frivolousness. Commissioner, I.N.S. v. Jean, 110 S. Ct. 2316, 2319 (1990); Pierce v. Underwood, 487 U.S. 552, 565-66 (1988); see also Beta Systems Inc. v. United States, 866 F.2d 1404, 1406 (Fed. Cir. 1989); Atlas Construction Co., Inc., GSBCA 11088-C, et. al. (Mar. 31, 1992). Having determined that Jordan & Nobles is a "prevailing party," we now examine the six claims for which it seeks recovery, in light of the Government's assertions that it was "substantially justified" in defending these claims. Docket No. 8576 This claim involved base-bid work on the fourth through the seventh floors of the Federal Building, which was to be performed at the direction of the contracting officer. At the hearing, Jordan & Nobles asserted that a compensable delay had occurred because the base-bid work was intermingled with a request (later rescinded) for a change order and the contracting officer failed to make a timely decision regarding the change order, thus hindering the start of the base-bid work. We agreed with Jordan & Nobles, concluding that there was unreasonable delay in the Government's recision of a change order request. We also found that appellant should have started on some categories of base-bid work without waiting for resolution of the change order request. Jordan & Nobles, 91-1 BCA at 118,487. Ultimately, we granted this appeal in part and awarded Jordan & Nobles its direct costs and remission of liquidated damages. Jordan & Nobles now argues that it is entitled to $17,785 in attorney fees for this particular claim. It insists that this claim was a large part of the overall appeal, lengthy in terms of the time spent at hearing, and successful, as the Board ultimately decided that the Government did cause the delay. The Government, however, attempts to persuade us that even though the Board found it to be responsible in part for the delay, Jordan & Nobles was only awarded remission of liquidated damages and its direct costs, or less than 6% of its original claim. Therefore, respondent reasons, its position in litigating this claim was "substantially justified." We agree that the Government was substantially justified in defending part of this claim, as we did not award appellant a time extension of 120 days and a contract adjustment of $154,685 for late release of the directive to install carpet. Id. at 118,505. In fact, we found that Jordan & Nobles could have started some of the base-bid work, including carpeting, electrical work above the drop ceiling, lighting fixtures, air- conditioning vents, and sprinkler systems, Id. at 118,514. However, as we also found the Government to be responsible for the delay caused by not making a timely decision regarding the change order request for the fourth through the seventh floors, and awarded appellant remission of liquidated damages equal to the period of delay and direct costs, id. at 118, 515, we cannot deem the Government "substantially justified" on this portion of the claim. It is within our discretion to adjust the amount of attorney fees in accordance with appellant's success in litigating its appeal. However, the allocation of fees is often complicated and there is no set formula dictating their allocation. We view each claim in its entirety, taking into consideration the complexity of the claim, the amount of time spent at hearing, and the degree to which appellant was successful. Having heard this claim on the merits, we decided that both parties were partially responsible for the delay. We now find that the portion of the claim that Jordan & Nobles successfully litigated comprised approximately one-half of the overall claim, in terms of complexity and time. Therefore, it is entitled to one-half of its attorney fees and costs claimed on docket 8576. As discussed previously, we reduce the hourly rate of $100, claimed by Jordan & Nobles, to the statutory maximum of $75. Here, appellant is claiming $17,785. We find it is entitled to one-half, or 89 hours, to be charged at the statutory rate of $75, resulting in a total of $6,675. Docket Nos. 8826 and 8575 We consider the second and third claims together, as they are both claims for additional contract time. Docket number 8826 involved a request by the contracting officer for a change order for the installation of partition and electrical work. Appellant submitted its cost proposal in the amount of $14,902 for the revised work, and requested extended time costs in the amount of $15,585. Negotiations ensued and the contracting officer ultimately issued a unilateral change order for $9,236.64. Jordan & Nobles, 91-1 BCA at 118,506. The second claim, docket number 8575, involved a poorly designed exhaust fan which the Government decided to have redesigned and rebuilt. Again, the contracting officer issued a request for a change order for its redesign, and appellant claimed costs of $29,359 and a fifteen day time extension. The contracting officer initially agreed, but later issued a unilateral change order in the amount of $11,809. Id. In our decision on the merits, we held that on docket number 8826, appellant was entitled to its estimate for the change order for the electrical work, in the amount of $14,902. We also found concerning docket number 8575, that appellant was entitled to $14,857.69, which was its actual cost for the change order of the fan. We denied, however, both requests for additional time and held that appellant's claim for additional contract time: "is unjustified and reflects appellant's attempts to use every opportunity to claim extended period costs. . . . " Id. at 118,515. Jordan & Nobles now argues in its motion for costs that since no justification was offered for the contracting officer's unilateral change order, appellant should be entitled to recover the reasonable costs expended in pursuing these appeals. It claims $1,050 for docket number 8826 and $412 for docket number 8575. The Government again argues that there was substantial justification for its position in these claims, even though the Board granted additional direct costs over and above the amounts previously allowed by the contracting officer. We find that the Government was "substantially justified" in part; that is to say, it correctly defended its position of denying additional contract time. Jordan & Nobles was successful, however, in litigating its claim for direct costs. Therefore, we find it appropriate to award Jordan & Nobles one- half of the amount claimed in attorney fees for this claim, as it was only partially successful. Jordan & Nobles claims $1050 for docket number 8826, which is approximately ten hours. We award five hours at the rate of $75 per hour, or $375. For docket number 8875, it claims $412, which we reduce to two hours at the statutory rate, for $150. Docket No. 9928 The fourth claim, labeled the "brick claim" in our earlier decision, involved appellant's allegation that the Government had relaxed the exterior brick requirements and forced appellant to accept an inferior and out-of-specification brick from the manufacturer, which was placed on the building and then ordered removed by the Government. We agreed with Jordan & Nobles' position and found that as a result of respondent's actions a delay occurred. In our decision we held that "we agree and grant this aspect of the appeal. There was a constructive change and delay by authorized representatives of respondent. Appellant obtains its direct cost for the change and remission of liquidated damages." Jordan & Nobles, 91-1 BCA at 118,486. Additionally, Jordan & Nobles had argued that it was required to cut exterior and atrium bricks according to defective drawings and conflicting specifications. We again agreed and found that the Government's drawings of the columns and the dimensions of the brick veneer did not match the brick specifications. Accordingly, we awarded appellant its direct costs and remission of liquidated damages. Jordan & Nobles now argues that the Government's position was not substantially justified as the Board found that it had caused a delay and it had required appellant to cut brick according to a defective drawing. Appellant seeks $26,093 in attorney fees and costs for this claim. The Government asserts that it was substantially justified in defending this claim, arguing that even though the Board found in favor of appellant with regard to direct costs, it denied appellant's request for delay damages. We simply cannot agree with the Government. We find that its behavior was not substantially justified, and that Jordan & Nobles is entitled to costs and fees. We found the Government responsible not only for a constructive change and resulting delay, but also for having used defective specifications. There was no justification for the Government's action. Jordan & Nobles has claimed approximately 260 hours, which we grant at the statutory rate of $75 per hour. We award it $19,500 in attorney fees for this claim. Docket Nos. 8650 and 8868 The final two claims that we granted in our original decision are docket numbers 8650 and 8868. The first of these involved respondent's directive to install eleven tamper control switches not shown on drawings. In our decision we held that "appellant is entitled to its costs of installing and wiring the tamper switches not shown on the drawings, as the extras were outside the scope of the contract." Jordan & Nobles, 91-1 BCA at 118,515. The second claim involved the placing of vinyl flooring at the landing of stairs. We also granted this appeal, finding that "the contracting officer directed appellant to perform work outside the scope of the contract...." Id. Jordan & Nobles now argues that there was no justification for respondent's denial, and that both of these claims were found to be outside the scope of the original contract requirements. It is seeking attorney fees of $385 for docket number 8650 and $425 for 8868. We agree with Jordan & Nobles and find that the Government was not substantially justified on these two claims. Again, we lower the claimed hourly rate to $75 and award four hours for docket number 8650 and four hours for 8868, $300 for each. EAJA Costs In addition to the above, Jordan & Nobles incurred six hours of attorney time for the preparation of its EAJA application. Our appellate authority has authorized recovery of such costs, and we have also routinely awarded fees incurred during the preparation of EAJA applications. Schuenemeyer v. United States, 776 F.2d 329 (Fed. Cir. 1985); Kentucky Building Maintenance Inc., GSBCA 10973-C(7803), 91-3 BCA 24,158. We find this to be a reasonable amount of time; however, we reduce the hourly rate from $100 to the statutory rate of $75, thus entitling Jordan & Nobles to $450 for this claim. Expert Witness Fees Jordan & Nobles' application for costs also includes a request for expert witness fees in the amount of $17,401.21. It argues that its expert, Mr. Ron Bills, contributed evidence that led to the Board's conclusion that there was a constructive suspension of the work in connection with docket number 8576. The Government counters that no expert witness fees should be granted, as appellant's expert qualified solely as a delay analysis expert, and contributed nothing to those portions of the appeal on which appellant was successful. Although the EAJA allows for recovery of "the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which is found by the agency to be necessary for the preparation of the party's case," 5 U.S.C. 504(a)(1), (b)(1)(A), we must agree with the Government on this issue. Mr. Bills qualified solely as an expert in the area of delay analysis. At hearing, we determined that "delays to the critical path were the responsibility of appellant," and therefore rejected the testimony of appellant's expert and denied appellant compensable delay costs. Jordan & Nobles, 91-1 BCA at 118,486. As Mr. Bills did not testify on any other issues on which appellant was considered a prevailing party, we deny this claim for costs. Airline Ticket, Mailing, Deposition, and Video Fees Lastly, Jordan & Nobles has presented invoices in the amount of $1,344 for airline tickets, $117.75 for special mailing costs, $2,292.30 for depositions, and $295 for video production services. These costs, totalling $4,049.05, were incurred in connection with two dockets, 8576 and 9928, in which we found the Government was not "substantially justified" in full, therefore entitling Jordan & Nobles to recover a portion of its attorney fees. While the EAJA indicates that certain "fees and other expenses" are reimbursable, 5 U.S.C. 504(b)(1)(A) (1988), our appellate authority has stated that the types of fees and expenses that should be allowed are: 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 is tried. Oliveira v. United States, 827 F.2d 735, 744 (Fed. Cir. 1987). We find the fees and expenses claimed by Jordan & Nobles to be of the type contemplated by the court as "reasonable and necessary" in preparation for trial. Certainly the cost of overnight mail ($117.75), copies of depositions ($2,292.30), and videotapes to be used at hearing ($295) are all within the ambit of recoverable expenses. We have also allowed the recovery of reasonable travel expenses that were incurred in preparation of a case, as costs directly related to the litigation. American Power, Inc., GSBCA 10558-C, 91-2 BCA 23,766, at 119,050 (1991); Warwick Holding Co., GSBCA 8459-C(5070), et al., 88-3 BCA 21,114, at 106,597 (1988). Here, Jordan & Nobles has submitted invoices totaling $1344 for the cost of airline tickets, for the purpose of conducting discovery and taking depositions outside of El Paso. We believe these trips to have been necessary in the course of conducting discovery, and grant this claim in full. Summary Based on the foregoing we have awarded Jordan & Nobles the following amounts under the EAJA: Attorney Fees #8576 $ 6,675.00 #8826 $ 375.00 #8575 $ 150.00 #9928 $19,500.00 #8650 $ 300.00 #8868 $ 300.00 EAJA Attorney Fees $ 450.00 Expert Witness Fees $ none Litigation & Travel Expenses $ 4,049.05 __________ Total $31,799.05 Decision The application for fees and expenses is GRANTED IN PART. We award the appellant $31,799.05. __________________________ ANTHONY S. BORWICK Board Judge We concur: ______________________ __________________________ VINCENT A. LaBELLA CATHERINE B. HYATT Board Judge Board Judge