In October 1990, the government filed its complaint alleging that each of the claims was grossly excessive in relation to the costs which Hardrives had actually incurred, as shown by Hardrives' accounting records, and in relation to the amounts which Hardrives reasonably could estimate it would incur. As revised and amended, the claims totalled approximately $4.8 million, $4.2 million of which the government alleged was associated with false certifications and misrepresentations in violation of the Contract Dispute Act, 41 U.S.C. § 604, and the False Claims Act, 31 U.S.C. § 3729(a). The complaint was based in part on the results of an audit conducted by the Department of Interior, Office of Inspector General ("OIG") at the request of the contracting officer responsible for evaluating Hardrives' claims.3 Several witnesses, including former Hardrives employee, Robert Dangers, subcontractor MRT, Inc's president, Billy Tripp, and retired Hardrives estimator, William Rodgers, also appeared to confirm that Hardrives knowingly had submitted fraudulent claims. Dangers initiated contact with the Department of Interior outlining in a six-page letter several grounds for his belief that Hardrives had engaged in fraud. In interviewing these witnesses, the government found their accounts consistent and corroborative.

On an expedited trial schedule, Hardrives brought several summary judgment motions challenging the district court's jurisdiction, the legal theories for the government's case, and the conflicting accounting methodologies employed to calculate overhead. The court denied seven of these motions. Its April 1991 memorandum and order explicitly rejected arguments urging that primary jurisdiction rested with the IBCA or that IBCA remedies should be exhausted prior to initiation of suit. It noted that the IBCA had granted the government's motion to stay pending appeals because it lacked jurisdiction over the government's fraud claims against Hardrives.4

The bench trial began at the end of April 1991. Over thirteen days, the government presented two lines of proof. Pointing to the difference, by orders of magnitude, in the auditor's assessment of supportable claims and Hardrives' submissions, it sought to prove fraud indirectly.5 It also put on direct testimonial evidence that Hardrives had knowingly prepared false claims. At the close of the government's case, Hardrives moved for involuntary dismissal pursuant to Fed.R.Civ.P. 41(b). The district court granted the motion in an oral ruling on the merits. The court found that the government had not proved its case on direct evidence because the witnesses it relied upon lacked credibility. With respect to one witness, the judge noted "I have never been so convinced in my life as I am that Mr. Dangers made only three honest statements ... after those three statements I do not place any credibility in anything else the man said or wrote."6 Nonetheless he acknowledged that Dangers "was sufficiently familiar with the job, the project, the bid process, and so forth, to make a very convincing letter which, unfortunately, I think the Bureau, the Justice Department, and the auditors all believed." In addition to Dangers, the judge disbelieved the Franzoy-Corey witnesses (whom he viewed as entangled in a conflict of interest) and questioned the impartiality of the government auditors. "[I]t is difficult for me to believe," he noted, "that the auditors approached the job with an open mind. I think they went into the audit resolved to find overstatements by Hardrives and looked at all the evidence with that in mind." (ER at 249).

Regarding the government's indirect evidence of fraud, the court declared it could make no findings on the record as developed. Believing the audit unreliable, it suggested that the government should have gone to the IBCA for a determination of a reasonable claim amount against which the court could measure the claims originally submitted. In its view, the court had "no authority ... to determine ... the correct amount of the claim. Those decisions are strictly up to the [IBCA]." (ER at 252). Without "the benefit of the determination that it does not have the jurisdiction to make," the court could not consider the government's indirect line of proof. (ER at 250-51).

Following dismissal of the case, the government filed a notice of appeal, which it later withdrew with prejudice. (CR 241, 250). Hardrives sought attorneys' fees and expenses in the amount of $550,000 under the EAJA, 28 U.S.C. § 2412(d)(1)(A). Finding the government's litigation position was not "substantially justified" and that no "special circumstances" applied,7 the court awarded Hardrives $350,000 in fees.

The EAJA provides for the award of attorneys' fees and litigation expenses incurred by a prevailing party unless the court finds that the United States was "substantially justified" in the litigation.8 The government bears the burden of showing that its position was substantially justified. Bay Area Peace Navy, 914 F.2d at 1230. The legislative history of the EAJA indicates that

[t]he test of whether or not a Government action is substantially justified is essentially one of reasonableness. Where the Government can show that its case had a reasonable basis both in law and fact, no award will be made.

...

The standard, however, should not be read to raise a presumption that the Government position was not substantially justified simply because it lost the case. Nor, in fact, does the standard require the Government to establish that its decision to litigate was based on a substantial probability of prevailing.

H.R.Rep. No. 1418, 96th Cong., 2d Sess. 10-11 (1980), reprinted in 1980 U.S.C.C.A.N. 4953, 4989-90. The Supreme Court has interpreted "substantially justified" to mean "justified to a degree that could satisfy a reasonable person. That is no different from the 'reasonable basis both in law and fact' formulation adopted by the Ninth Circuit." Underwood, 487 U.S. at 565.9 "That the government lost does not raise a presumption that its position was not substantially justified." Kunzman, 817 F.2d at 498; United States v. First Nat'l Bank of Circle, 732 F.2d 1444, 1447 (9th Cir.1984). A loss on the merits is not dispositive of the government's liability for attorneys' fees because "[c]onceivably, the Government could take a position that is not substantially justified, yet win; even more likely, it could take a position that is substantially justified, yet lose." Underwood, 487 U.S. at 569; Abela v. Gustafson, 888 F.2d 1258, 1264 (9th Cir.1989). Not only must the government "have been wrong, ... [it must have been] so wrong as to be unreasonable." Frey v. Commodity Futures Trading Comm'n, 931 F.2d 1171, 1178 (7th Cir.1991).

In making a determination of substantial justification a district court must "evaluate the basic arguments the Government put forth." Abela, 888 F.2d at 1264 (emphasis in original). It must look to the totality of the circumstances, Bullfrog Films, 959 F.2d at 784, including "extraneous circumstances bearing upon the reasonableness of the government's decision to take a case to trial." Kali, 854 F.2d at 332. The "existence of precedents construing similar statutes or similar facts" has been viewed as "[p]erhaps the most important of these extraneous circumstances." Id.

In some cases, we have acknowledged that preliminary determinations by the district court may suggest substantial justification for the government's litigation position. United States v. $12,248 United States Currency, 957 F.2d 1513, 1517 & n. 4 (9th Cir.1991) (grant of partial summary judgment one consideration in evaluating circumstances justifying initial seizure of currency); accord Kali, 854 F.2d at 333 (loss on summary judgment does not demonstrate lack of substantial justification). We also have looked at the steps the government has taken to evaluate its case. Where it has had "reasonable means to test" conflicting accounts and "chose[n] to do nothing" and where it has failed to "conduct an investigation" and "only delayed," we have been inclined to uphold the district court's grant of fees. $12,248 United States Currency, 957 F.2d at 1519; see also United States v. Estridge, 797 F.2d 1454, 1457-58 (8th Cir.1986) (lack of diligent investigation primary reason for awarding fees).

We may not uphold the district court if the record demonstrates that it "misunderstood its task" in deciding to award fees. A reprise of the reasoning relevant to the "merits [of a case] does not constitute a demonstration of the reasonableness [or unreasonableness] of the government's position." Oregon Natural Resources Council v. Madigan, 980 F.2d 1330, 1332 (9th Cir.1992).

The district court's attorneys' fees order fails to articulate or apply the test used to evaluate whether the government is substantially justified in bringing suit. Instead of considering whether the government's litigation position had a reasonable basis in law and fact, the court simply incorporated by reference its findings on the merits: "Therefore, based upon all the considerations cited by this Court at the conclusion of [the government's] case-in-chief, this Court finds that the position of the United States was not substantially justified." District Court opinion at 3. In our view, the court clearly "misunderstood its task." Oregon Natural Resources Council, 980 F.2d at 1332. To award attorneys' fees, a district court must engage in a discrete analysis of the reasonableness of the government's arguments, evaluating their basis in law and fact for the purposes of a determination of liability for attorneys' fees (rather than strictly for a decision on the merits). We conclude the court abused its discretion in importing into its fees determination the standard applicable to the merits. We, therefore, reverse and vacate the award of attorneys' fees.

The parties disagree in their characterizations of the district court's ruling on the merits and its order awarding fees. The government asserts that the only consideration noted by the court in its attorneys' fee decision was jurisdictional in nature, and that, as a statement of jurisdiction, it is legally erroneous and, in itself, a ground for finding an abuse of discretion. It takes the position that as a result of this jurisdictional error the district court failed to consider one of the two legal bases relied upon in bringing suit. Accordingly, the court was unable fully to evaluate whether a reasonable basis in law existed for its case against Hardrives. Hardrives contends that the court accepted both legal theories advanced by the government and ruled against it on the facts, either because it found its witnesses incredible or because the record was insufficiently developed. It suggests that the factual predicate for bringing the fraud action was so inadequate that the government could not be considered substantially justified in pursuing the litigation.

The government relied on two simple methods to prove its allegations of fraud. It first sought to prove that Hardrives knowingly submitted false and inflated claims. Such direct proof obviously would establish actionable fraud. Second, it asserted that the gross discrepancy between claimed costs submitted for adjustment and actual costs of work performed (which it sought to prove through the audit and other evidence) would give rise to an inference of fraud. At the time the government presented the argument, Eleventh Circuit precedent held that such indirect proof of fraud was adequate. United States v. White, 765 F.2d 1469, 1481-82 (11th Cir.1985).

In its only explanation for awarding attorneys' fees the court noted:

[T]his Court has already stated that the action should not have been brought in this Court without the government first having completed the administrative process. This Court has also stated at the conclusion of the [government's] case, that it was a waist [sic] of taxpayer dollars to have initiated this action in this forum without first having obtained a final decision in the administrative process.

District Court opinion at 3. It is not clear whether the district court believed that it lacked jurisdiction to make factual determinations as to the extent Hardrives overstated its claims because IBCA possessed such jurisdiction or whether it believed that the government could not establish fraud in its district court case without those findings first having been made by the IBCA. Either way the district court erred. If it believed itself without jurisdiction, the district court simply was wrong: it had jurisdiction to make all the findings of fact necessary to a legal determination as to fraud. If it believed the government's case unravelled without the benefit of IBCA findings, the district court failed in its duty to make findings and decide the existence of and extent of any overstated claims. Presumably both contract and fraud claims require a thorough examination of a project's accounting and actual costs. That the factual predicate for either claim is similar does not alter the court's duty to adjudicate the fraud claims and make the necessary factual findings. See United States v. General Dynamics Corp., 828 F.2d 1356, 1358, 1362-64 (9th Cir.1987) (despite Armed Service Board of Contract Appeals' expertise in interpreting military contract, deferral to the Board on criminal fraud prosecution "was an impermissible delegation of an article III judge's decision-making function and an unwarranted interference with prosecutorial discretion").10 Although in deciding the case, the district court had the obligation to determine the validity of the claims, the extent of any overstatements, and whether they were the result of fraud, the government need not prove fraud to avoid liability for attorneys' fees. It need only demonstrate that its litigation position had a reasonable basis in fact and law. We conclude the government rooted its case in sound legal theories.11 It clearly met the first prong of the test for substantial justification.

Hardrives reads the district court's incorporation by reference of its determinations on the merits to conclude that the holding of liability for fees flowed from its adverse credibility determinations. This may be so. Nevertheless, " 'an adverse finding on a credibility issue does not, in and of itself, deprive the [government's] position of a basis in fact.' " Mester Mfg. Co. v. INS, 900 F.2d 201, 204 (9th Cir.1990) (citing Temp Tech Industries, Inc. v. NLRB, 756 F.2d 586, 590 (7th Cir.1985)).

The district court itself acknowledged that one of the government's witnesses "was sufficiently familiar with the job, the project, the bid process, and so forth, to make a very convincing letter ..." District Court oral ruling at 2. The government corroborated this witness' account in interviews with others close to the project, including the president of a subcontractor and a retired Hardrives estimator. Nor is this a case in which the government could be faulted for failing to conduct an investigation.12 In the face of extraordinarily high claims,13 it undertook an extensive audit, which, on its face, appeared to reveal highly inflated estimates and considerable accounting discrepancies. The auditors discovered, for example, that Hardrives assigned field overhead to the Hohokam project at thirteen times the rate to other projects. It presented duplicate claims without any suggestion that they should be considered in the alternative.14 In short, when the government began to investigate the approximately $5 million supplementary claims to a $7 million contract, it was alerted by a number of red flags.15

The district court discounted the substantial evidence adduced by the government that the indicia of fraud were far more than mere suspicion. In its opinion on the merits it emphasized the circumstances bearing poorly on Dangers' credibility. It found the relationship between the government and the contract's overseer, Franzoy-Corey, fraught with conflicts of interest. Finally it expressed a lack of confidence in the auditors.16 It did not scrutinize the content of the audit17 or make independent findings regarding the claims themselves.18 The fact that the district court judge, rightly or wrongly, ultimately disbelieved the government's witnesses because he thought they were biased is not a basis for holding that the government was not justified in undertaking the litigation.19 At the outset, the government's case against Hardrives appeared very strong. In our view it was entitled to conclude that its fraud action had a basis in fact. It was substantially justified in commencing and pursuing the litigation.

We conclude the district court abused its discretion in failing to apply the proper standard to its determination that attorneys' fees were warranted in this case. Having satisfied ourselves that the government's litigation position had a reasonable basis in law and fact, we reverse the district court's decision to grant Hardrives fees.