CBCA 6600

DISMISSED FOR LACK OF JURISDICTION: February 28, 2020 CBCA 6600 RASHID EL MALIK, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Rashid El Malik, pro se, Palos Verdes Estate, CA. Laetitia Coleman and Mary A. Mitchell, Office of General Counsel, Department of Veterans Affairs, Houston, TX, counsel for Respondent. Before Board Judges SOMERS (Chair), GOODMAN, and LESTER. SOMERS, Board Judge. Mr. Rashid El Malik, a self-represented litigant, seeks to enforce a contract between the Department of Veterans Affairs (VA) and Moderno, Inc. (Moderno), based upon his status as a third-party beneficiary.1 During a status conference, we raised the issue of whether appellant could bring this action as a third-party beneficiary under the Contract 1 Mr. El Malik requests that the contractor be required to fully perform the contract, that the VA provide him a time line for completion, that the VA pay him for costs allegedly resulting from contractor or Government caused delay, and that appellant be paid attorney fees incurred for the preparation of his claim. CBCA 6600 2 Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2012). At our request, the parties submitted position papers with supporting arguments. After considering the arguments presented, we conclude that we lack jurisdiction to entertain Mr. El Malik’s claim. Accordingly, we dismiss the claim. Background2 Under statute and regulations, the VA provides grants to service disabled veterans intended to improve their quality of life and enable them to live independently in their own homes. See, e.g., 38 U.S.C. § 3120 (“Program of independent living services and assistance”). These programs provide independent living services and assistance in various geographic regions of the United States “to a veteran who has a serious employment handicap resulting in substantial part from a service-connected disability.” The VA contracts for these services. Mr. El Malik is the direct beneficiary of this program. Mr. El Malik received two grants, one in 2014, and the second in 2017, to rehabilitate his home. After the first contractor failed to complete the work, the VA agreed to seek a new contractor to finish the work. Once Mr. El Malik’s grants had been depleted, in order to complete the work, the VA entered him into a different VA program, which required that he sign a rehabilitation plan. He did so on September 11, 2017. The document setting out the rehabilitation plan required: The Veteran will meet all VA regulations, and provide regular reports of progress to the Case Manager . . . . There will be no modifications to the contract. The Veteran may not pay for or request upgraded materials, nor change the configuration of the project. Delays of the process by the Veteran may lead to discontinuance of services. To implement the rehabilitation plan, the VA issued a solicitation seeking a contractor to perform work “to improve the Appellant’s living conditions and allow safe emergency egress to and from the home.” Moderno submitted a proposal and received the contract award on May 30, 2018. The contract included a performance work statement (PWS) detailing the planned modifications to Mr. El Malik’s residence. The VA’s contracting officer and Moderno’s representative signed the contract. Mr. El Malik did not sign the contract. 2 We draw these facts primarily from appellant’s claim, notice of appeal, brief, and the exhibits appended to his brief. We note that Cheryl E. Adams, Esq., prepared Mr. El Malik’s claim, which was submitted to the contracting officer on June 18, 2019. CBCA 6600 3 In his amended claim, Mr. El Malik alleges that the contract work has been poorly performed, and he provides numerous examples of the problems he has encountered as a result. Mr. El Malik asserts that he has made many attempts to get the Government to enforce the contract, to no avail. Mr. El Malik argues that because he is the intended beneficiary of the contract, he is entitled to enforce it before this Board. When the contracting officer failed to issue a final decision, Mr. El Malik appealed to us on a “deemed denial” basis. Discussion We find that we do not possess jurisdiction to hear Mr. El Malik’s claim.