__________________________________ GRANTED IN PART: October 19, 1994 __________________________________ GSBCA 12892-C(11923) RANCO CONSTRUCTION, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. John W. Fowler, Jr., of Blank, Rome, Comisky & McCauley, Philadelphia, PA, counsel for Appellant. Robert C. Smith, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DEVINE, BORWICK, and DeGRAFF. DeGRAFF, Board Judge. Pursuant to the Equal Access to Justice Act (EAJA), 5 U.S.C. 504 (1988), Ranco Construction, Inc. (Ranco), filed an application for an award of attorney fees and expenses incurred in litigating this appeal. The total amount sought by Ranco is $26,726.34. As explained below, the application is granted in part. Background We issued our merits decision in this appeal on January 31, 1994. Ranco Construction, Inc. v. General Services Administration, 94-2 BCA 26,678. In summary, the General Services Administration (GSA) terminated for default Ranco's right to perform a construction contract. In GSA's view, the termination was justified because Ranco was not prosecuting the work diligently so as to ensure that performance would be completed by the contract completion date. In our decision, we explained that GSA incorrectly determined the contract completion date and, as a result, GSA's reason for terminating Ranco's right to perform was not valid. We also considered whether Ranco expressly repudiated the contract by making a clear, unequivocal statement that it intended not to perform. We held that the record contained no evidence of such a statement. Finally, we considered whether Ranco repudiated the contract by failing to provide GSA with adequate assurance of full performance, in response to a reasonable request by GSA for such assurance. In our decision, we explained that failure to provide adequate assurance of performance can constitute repudiation if a contract is governed by the Uniform Commercial Code (UCC). Assuming that such a failure can constitute repudiation of a construction contract, we decided that GSA's request for assurance was unreasonable because it was based upon GSA's misapprehension of the contract completion date. On June 29, 1994, Ranco filed its application for attorney fees and expenses. In its application, Ranco represents that, when it filed its appeal, it had a net worth less than $7 million and fewer than 500 employees. Ranco alleges that it prevailed in this appeal, and that GSA's position was not substantially justified. In its June 29 application, Ranco requests $20,452.50 in attorney fees (272.7 hours at $75 per hour) and $2,694.48 in expenses. The attorney hours include 39 hours concerning EAJA issues. On August 1, 1994, GSA responded to Ranco's application. GSA does not contest Ranco's representations concerning its net worth and number of employees, and GSA agrees that Ranco prevailed in the appeal. GSA does not contest the number of hours that Ranco's attorney devoted to this case or the hourly rate charged by the attorney, and does not contest any of the expenses for which Ranco seeks reimbursement. GSA argues that its position in this litigation was substantially justified and, for this reason, Ranco is not entitled to any recovery. GSA asserts that Ranco's actions constituted an express repudiation of the contract, that GSA reasonably requested assurance that Ranco would perform, and that GSA's position concerning the contract completion date was reasonable. On September 9, 1994, Ranco supplemented its application to request an additional $3,195 in attorney fees (42.6 hours at $75 per hour) and $9.36 in expenses. The attorney hours include 35.3 hours concerning EAJA issues. On September 23, 1994, GSA responded to Ranco's supplemental application. GSA asserts that the number of hours that Ranco's attorney devoted to EAJA issues was unreasonable. On October 19, 1994, Ranco filed a three-page reply to GSA's response. Ranco requests $375 for the time its attorney claims to have spent drafting this reply. Ranco's October 19 filing, which was not requested by the Board, does not state when or how this time was spent, and does not contain a certification as required by Rule 35. Discussion 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, 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) (1988). EAJA provides that a corporation is eligible for an award if, at the time the adversary adjudication was initiated, the corporation had a net worth not exceeding $7 million and had not more than 500 employees. 5 U.S.C. 504(b)(a)(B). Ranco is the prevailing party, it meets the eligibility criteria related to net worth and number of employees, and there are no special circumstances which would make an award unjust. The only issues remaining are whether GSA's position was substantially justified and, if not, whether Ranco is entitled to recover the entire amount it seeks. Substantial Justification GSA bears the burden of establishing that its position was substantially justified. Kunz Construction Co. v. United States, 16 Cl. Ct. 431 (1989), aff'd, 899 F.2d 1227 (Fed. Cir. 1990) (table). An agency's position is substantially justified if it is "'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 (1988). Our appellate authority has directed us "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 law and fact." Chiu v. United States, 948 F.2d 711, 715 (Fed. Cir. 1991) (footnote omitted). GSA's position was not substantially justified, either in fact or in law. As explained in our merits decision, according to well-established case law, an express repudiation occurs if a party to a contract states positively, definitely, unconditionally, and unequivocally that it does not intend to perform. GSA did not present any facts to establish that Ranco expressly repudiated the contract. For this reason, GSA's position concerning express repudiation was not supported by either the facts or controlling legal principles. GSA's argument that Ranco repudiated this construction contract by failing to provide GSA with adequate assurance of full performance in response to a reasonable request by GSA for such assurance, is based upon a principle found in the UCC. In briefing the merits of this appeal, GSA did not explain why we should apply a UCC principle to a construction contract. Assuming that the UCC principle applies to this contract, GSA did not establish that its request for assurance was reasonable, given that it was based upon GSA's misunderstanding of the contract completion date. GSA's position was not supported by either controlling law or the facts. Finally, we do not agree with GSA that its argument concerning the contract completion date had any reasonable basis in fact or law. The solicitation, the notice to proceed, contract modification PA03, GSA's minutes of the preconstruction conference, and the GSA-approved progress schedule state that Ranco had 420 days to complete all of the work required by the contract. Contract modification PA05 states that Ranco was required to complete certain work within 300 days. This modification, which was never agreed to by Ranco, was described by GSA as a clarification, even though it is not consistent with the documents that preceded it. Given these facts, there was no reasonable basis for GSA's argument that Ranco was required to complete certain work within 300 days. Because the position taken by GSA in this case was not substantially justified, Ranco is entitled to an award of reasonable fees and expenses. The question remains whether Ranco is entitled to recover the entire amount that it requests. The Amount Of Ranco's Recovery Ranco requests payment for $2,703.84 for expenses incurred in litigating this case. GSA does not assert that this request is unreasonable. We examined Ranco's request, and the amount is reasonable. Ranco is entitled to recover $2,703.84 for expenses. In litigating this appeal, Ranco's attorney spent 241 hours not related to EAJA issues. These hours were spent drafting the complaint, conferring with Ranco, conducting discovery, preparing extensive pre-hearing submissions, preparing witnesses for depositions and for hearing, participating in a two-day hearing, performing legal research not related to EAJA, preparing comprehensive post-hearing briefs, and responding to GSA's motion for reconsideration. Ranco claims a total of $18,075 for the 241 hours (241 hours x $75 per hour), and GSA does not argue that Ranco's claim for these hours is unreasonable. Considering the amount of work that was performed and the quality of that work, this portion of Ranco's claim is reasonable. Ranco is entitled to recover $18,075 in attorney fees associated with non-EAJA issues. In its original application and its supplemental application for attorney fees, Ranco claims that its attorney spent 74.3 hours researching EAJA issues and preparing its EAJA application. These hours are comprised of the following: Original Application Analysis of documents related to EAJA 8.0 hours Legal research 28.5 hours Preparation of the application[foot #] 1 2.5 hours Supplemental Application Legal research 4.2 hours Preparation of the application 7.5 hours Legal research/application/brief[foot #] 2 23.6 hours GSA does not challenge the reasonableness of the hours claimed in the original application, and these hours appear to be reasonable. Ranco is entitled to recover $2,925 in attorney fees requested in its original application for EAJA-related work (39 hours x $75/hour). GSA asserts that all of the 35.3 hours for which Ranco claims reimbursement in the supplemental application are unreasonable, when considered together with the hours claimed in the original application. We deny Ranco's request for reimbursement for 0.4 hour, because this time was spent after the application was filed, calculating the time for filing an application. The request for the remaining 34.9 hours for legal research, preparing the application, and briefing is granted, because the amount of time expended seems reasonable, given that the brief filed by Ranco in response to GSA's opposition to Ranco's application contains a thorough discussion of the facts and the law, and the application is properly prepared and well- documented. Ranco is entitled to recover $2,617.50 in attorney fees requested in its supplemental application for EAJA-related work (34.9 hours x $75 hour). Ranco's request for reimbursement for the time its attorney spent drafting the October 19, 1994 reply is denied. The reply was not requested by the Board, was not necessary, and does not meet the requirements established by Rule 35. ----------- FOOTNOTE BEGINS --------- [foot #] 1 Included in this category is the time Ranco spent preparing the application and analyzing GSA's response to the application. [foot #] 2 The supplemental application does not segregate the number of hours spent performing legal research, the number of hours spent preparing the EAJA application, or the number of hours spent preparing the response to GSA's opposition to the EAJA application. ----------- FOOTNOTE ENDS ----------- In summary, Ranco is entitled to recover the following amounts: $ 2,703.84 for expenses 18,075.00 for attorney fees associated with non-EAJA issues 2,925.00 for attorney fees requested in the original application for EAJA-related work 2,617.50 for attorney fees requested in the supplemental application for EAJA-related work $26,321.34 TOTAL Decision The application for attorney fees and expenses is GRANTED IN PART. Ranco is awarded $26,321.34 to be paid in accordance with the provisions of 5 U.S.C. 504(d) (1988). ______________________________ MARTHA H. DeGRAFF Board Judge We concur: ________________________________ _______________________________ DONALD W. DEVINE ANTHONY S. BORWICK Board Judge Board Judge