Avant Assessment, LLC
ASBCA No. 58867
A.S.B.C.A.Jul 12, 2016Background
- Avant Assessment, LLC appealed the Army's termination of a contract for 3,300 foreign-language test items; the Board converted the termination from for-cause to for-convenience on summary judgment.
- Avant filed a timely EAJA application seeking fees under 5 U.S.C. § 504 after the Board denied the government's motion for reconsideration.
- Avant demonstrated EAJA eligibility (net worth under $7M); the government conceded Avant had fewer than 500 employees.
- The government argued the EAJA application was premature due to consolidation with two other appeals involving the same contract; the Board held ASBCA No. 58867 was final and retained a separate identity.
- The government defended the termination on grounds of (1) failure to deliver required number of acceptable items (its summary-judgment opposition) and (2) failure to meet the delivery schedule/quantity (reconsideration argument raised later).
- The Board found the government’s initial position was not substantially justified because it relied on item unacceptability without accounting for Modification P00005, and the reconsideration argument was untimely; therefore Avant prevailed on EAJA entitlement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| EAJA eligibility | Avant: qualifies as a "party" under EAJA (net worth < $7M; <500 employees) | Gov: did not dispute eligibility | Held: Avant is eligible (government conceded employee count) |
| Finality / Prematurity of fee application | Avant: ASBCA No. 58867 was final after summary-judgment decision; EAJA application timely | Gov: consolidation with two other appeals makes 58867 non-final, so application premature | Held: 58867 retained separate identity and was final; application not premature |
| Substantial justification of government position | Avant: government position not substantially justified; fees warranted | Gov: its positions (answer, summary-judgment response, reconsideration) were substantially justified | Held: Government not substantially justified — initial position ignored Modification P00005; reconsideration argument was a new, untimely theory |
| Award of fees | Avant: entitled to reasonable attorney fees and costs | Gov: no special circumstances to deny EAJA but argued substantial justification and prematurity | Held: EAJA entitlement granted; remanded to negotiate quantum |
Key Cases Cited
- AAA Engineering & Drafting, Inc. v. Widnall, 129 F.3d 602 (Fed. Cir. 1997) (definition of finality for judgments)
- NVT Technologies, Inc. v. United States, 370 F.3d 1153 (Fed. Cir. 2004) (discussed in footnote regarding contract termination principles)
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (courts should avoid turning fee applications into a second major litigation)