CBCA 7597

MOTIONS TO DISMISS FOR LACK OF JURISDICTION AND FOR SUMMARY JUDGMENT DENIED: March 3, 2023 CBCA 7597 ALARES CONSTRUCTION, INC., Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Douglas L. Patin and Lee-Ann Brown of Bradley Arant Boult Cummings LLP, Washington, DC, counsel for Appellant. Jennifer L. Hedge, Office of General Counsel, Department of Veterans Affairs, Pittsburgh, PA; and Kathleen Ramos, Office of General Counsel, Department of Veterans Affairs, Arlington, TX, counsel for Respondent. Before Board Judges RUSSELL, DRUMMOND, and ZISCHKAU. DRUMMOND, Board Judge. Respondent, the Department of Veterans Affairs (VA), filed a motion to dismiss for lack of jurisdiction or, alternatively, a motion for summary judgment. The VA alleges the Board lacks jurisdiction to decide the claim because the claim lacks a sum certain and because appellant, Alares Construction, Inc. (Alares), released its claim when it signed its final release of claims. We find that there is a sum certain stated in the claim and that there remains an issue of material fact as to whether appellant released its claim when it signed its final release of claims. CBCA 7597 2 Procedural Background Alares was awarded contract VA241-16-C-0037 (the contract) by the VA in April 2016. The contract required Alares to relocate the Intensive Care Unit at the Providence VA Medical Center. Appeal File (CBCA 6149, et al.), Exhibit 1.1 In CBCA 6149, et al., Alares filed a “claim supplement” or “claim addendum” in which “Alares added facts, allegations, and new legal theories.” Complaint (CBCA 7597) at 15-16. The Board refused to add the addendum to the claim in that consolidated appeal because it was a new claim, meaning it contained new legal theories which had not received a contracting officer’s final decision. See Alares Construction, Inc. v. Department of Veterans Affairs, CBCA 6149, et al., 22-1 BCA ¶ 38,225. Alares responded by voluntarily dismissing three claims—CBCA 6396, 7082, and 7083—and presenting a claim addendum to the contracting officer. See Appellant’s Voluntary Motion to Dismiss (CBCA 6149, et al.); Appeal File (CBCA 7597), Exhibit 27. The contracting officer subsequently denied the claim addendum. See Appeal File (CBCA 7597), Exhibit 28. Alares promptly appealed that denial to the Board, which was docketed as CBCA 7597. Sum Certain The VA argues that the Board does not have jurisdiction because (1) Alares failed to submit a claim that includes a valid sum certain, (2) the submission included two other amounts previously certified as a sum certain, and (3) the present claim duplicates many of the facts and issues presented in CBCA 6149, et al. Under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2018), there must be both a valid claim and a contracting officer’s final decision on that claim in order for the Board to hear an appeal and to proceed to the merits of the case. Sage Acquisitions, LLC v. Department of Housing & Urban Development, CBCA 6631, 22-1 BCA ¶ 38,031, at 184,693 (2021). A claim is not defined in the CDA, but the Board has adopted the definition located in the Federal Acquisition Regulation (FAR). See Sage Acquisitions, 22-1 BCA at 184,693 (citing 48 CFR 2.101 (2021) (FAR 2.101)). The FAR definition of a claim requires, among other things, “a sum certain.” FAR 2.101. “[T]he sum certain requirement demands a fixed amount be stated in the claim.” Sage Acquisitions, 22-1 BCA at 184,694 (quoting ARI University Heights, LP v. General Services Administration, CBCA 4660, 15-1 BCA ¶ 36,085 at 176,186). 1 Multiple appeals concerning this contract are pending before the Board. For clarity, all citations to the record reference the applicable CBCA docket number. CBCA 7597 3 The VA cites to Sage Acquisitions as a similar case to the present but misconstrues the Board’s holding. In Sage Acquisitions, the Board dismissed the case for lack of jurisdiction because the number held out to be a sum certain was not anywhere in the documentation. It was instead the sum of two separate numbers, one of which was an estimate, and thus the total was not a sum certain. Sage Acquisitions, 22-1 BCA at 184,695. Here, Alares stated in its claim a fixed number as its sum certain—$1,679,495.60.