Board of Contract Appeals General Services Administration Washington, D.C. 20405 _______________________________________ MOTION FOR RECONSIDERATION DENIED September 3, 1998 _______________________________________ GSBCA 14218-C-R(13784, 14056) TRAVEL CENTRE, Applicant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Fred Morahan, President of Travel Centre, Danvers, MA, appearing for Applicant. Michael D. Tully, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges PARKER, HYATT, and VERGILIO. VERGILIO, Board Judge. On August 5, 1998, Travel Centre filed with this Board a motion for reconsideration of a decision issued August 3, 1998, Travel Centre v. General Services Administration, GSBCA 14218-C(13784, 14056), in which a majority found the Government's positions in the underlying cases to be substantially justified and, therefore, denied the application to recover attorney fees and costs under the Equal Access to Justice Act (EAJA). Raising three primary points, Travel Centre maintains that the record does not support the decision, factually or legally. Because of these alleged errors, Travel Centre asks the Board to reconsider its decision, conclude that the Government was not substantially justified in its positions below, and award Travel Centre the costs it seeks. A basis for reconsideration does not exist. Travel Centre posits that the minimum guarantee in the terminated contract was not reasonable. Although Travel Centre does not explain how this assertion is material, the implication is that the contract was improper or illegal, such that the termination for default was unsupported and not substantially justified. Two distinct rationales reveal that this contention does not serve as a basis for reconsideration of the conclusion that the Government's positions were substantially justified. First, Travel Centre entered the contract with the guaranteed minimum, which served as a basis for the competition, the pricing, and the selection of the awardee. Such an assertion could have been raised during the formation process, but not after award. Second, the agency ordered well in excess of the guaranteed minimum, such that at the time of the termination the contract, as performed, had encompassed a significant amount of work. The parties exchanged adequate consideration for the contract to be enforceable. Travel Centre contends that the minimum guarantees in contracts awarded by the agency subsequent to its contract are much greater than the $100 minimum in its contract. Even if true, this has no relevance to the determination at issue--whether or not the agency's positions in the underlying cases were substantially justified. Travel Centre alleges that the agency was required to issue a cure notice before default terminating the contract, because it never ceased performance. As found in the decision on the merits, Travel Centre closed its business prior to the termination. With its offices in Maine and New Hampshire closed, Travel Centre was not performing in accordance with the express terms and conditions of the contract. Hence, the termination for default was issued. Although Travel Centre disagrees with the Board's conclusion that the Government's positions in the underlying cases were substantially justified, it has not asserted a basis for the reconsideration of the denial of its EAJA application. Rules 132, 133. Travel Centre has not raised a material point which causes the majority to reconsider the conclusion that the Government's positions were substantially justified given the facts underlying these disputes and the case law as it existed at the time the agency acted and while the case was pending. Accordingly, the Board DENIES the motion for reconsideration. ______________________ JOSEPH A. VERGILIO Board Judge I concur: _________________________ CATHERINE B. HYATT Board Judge PARKER, Board Judge, dissenting. I would reconsider the decision. Although Travel Centre's motion is inartfully drafted, its basic thrust is, in my view, correct. Travel Centre's troubles began when GSA misled offerors as to the amount of business that was possible under the contract. Even though GSA had received reliable information that the customer responsible for more than half of the business in the State of Maine had awarded its own contract for travel services and would, therefore, no longer be using the GSA contract, GSA withheld this crucial information from offerors. This was the basis of the Board's finding that GSA breached the contract. Travel Centre v General Services Administration, GSBCA 14057, 98-1 BCA  29,536 (1997), reconsideration denied, 98-1 BCA  29,541, motion for full Board consideration denied (June 30, 1998). When expected business did not materialize and Travel Centre began having troubles performing the contract, what did GSA do? It added insult to injury by terminating Travel Centre's contract for default. Travel Centre was forced to incur the expense of appealing that decision to this Board and undergoing eight months of discovery before GSA decided to do the right thing and change the termination for default to one for the convenience of the Government. If that isn't the kind of abuse of process intended to be addressed by the Equal Access to Justice Act, I can't imagine what is. The majority's decision that GSA's actions were "substantially justified" baffles me. ______________________ ROBERT W. PARKER Board Judge