CBCA 8160

DISMISSED FOR LACK OF JURISDICTION: October 16, 2024 CBCA 8160 THE POVOLNY GROUP, INC., Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. John M. Manfredonia of Manfredonia Law Offices, LLC, Cresskill, NJ, counsel for Appellant. Jennifer L. Hedge, Office of General Counsel, Department of Veterans Affairs, Pittsburgh, PA, counsel for Respondent. Before Judges LESTER, GOODMAN, and SHERIDAN. SHERIDAN, Board Judge. The parties filed a motion to dismiss this appeal for lack of jurisdiction or, in the alternative, for failure to state a claim. Appellant, The Povolny Group, Inc. (Povolny), asserts that it did not submit an initial claim to the contracting officer under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109 (2018), but rather submitted a request for information (RFI). The absence of a claim rendered the contracting officer’s final decision invalid, and, thus, the Board lacks the jurisdiction to further process this appeal. For the reasons outlined herein, we dismiss this appeal for lack of jurisdiction. CBCA 8160 2 Background Respondent, Department of Veterans Affairs (VA), awarded Povolny a contract to renovate the atrium of the Minneapolis Veterans Administration Medical Center. The Government’s specifications required 6" metal studs on the sides of duct chases so the chases could fit between the windows. Povolny submitted RFI 059 to request that the Government approve 3-5/8" studs for the project, stating that the Government’s standards did not take into account the 4" angles for structural support or horizontal soffit profiles. The Government did not approve Povolny’s request. VA alleges that Povolny completed the relevant work by deviating from the specifications without prior approval. Upon completion, Povolny requested that the Government accept the 3-5/8" studs it used to complete the project. Povolny’s second request to deviate was not approved, and the Government also determined that the structural steel for the duct chases was incorrectly fabricated. According to VA, this deficiency did not allow 6" studs to be used as designed on the sides of the duct chases or allow the duct chases to fit between the windows. The contracting officer responded to the request for deviation by issuing what she considered a final decision on May 8, 2024. The final decision included the following “options for resolution” to rework the metal framing and achieve compliance: (1) remove the face of the drywall and provide 6" metal studs and install new drywall, or (2) attach 3-5/8" metal studs to the face of the finished drywall, which would reinforce the existing metal studs, and refinish with a layer of drywall. Appellant timely appealed the decision to the Board on July 26, 2024, as a “protective appeal” and requested, in its notice of appeal, that “this appeal be dismissed for lack of jurisdiction” because the contracting officer’s “final decision is invalid because it does not respond to a CDA claim.” In its notice of appeal, Povolny explained: By final decision, the contracting officer reiterated the VA’s position regarding the steel framing for the duct chase and the two ways to fix it. [Povolny] has agreed to perform this rework with reservation of rights to file a CDA claim. [Povolny] has yet to file a claim. Since [Povolny] has not submitted a CDA claim, the contracting officer’s final decision is procedurally invalid. Although [Povolny] asked the Contracting Officer to retract her final decision for this reason, she has elected not to do so. Hence this protective appeal. CBCA 8160 3 A review of the notice of appeal, which indicates that Povolny did not submit a claim to the contracting officer, prompted the Board to hold a teleconference with the parties to discuss whether a joint motion to dismiss for lack of jurisdiction and/or a joint motion to dismiss for failure to state a claim would be the appropriate path forward. During the call, the parties agreed that the contracting officer’s final decision was invalid because it is not based on a claim, and they agreed to submit a motion to dismiss this appeal. Discussion The Board derives its jurisdiction to decide contract disputes from the CDA.