CBCA 6768

DISMISSED FOR LACK OF JURISDICTION: May 22, 2020 CBCA 6768 DELTA STATE UNIVERSITY, Appellant, v. DEPARTMENT OF JUSTICE, Respondent. Jane L. Mapp, Office of the Attorney General, State of Mississippi, Jackson, MS, counsel for Appellant. Pawandeep Bhandari and Thomas Sutton, Office of General Counsel, Federal Bureau of Prisons, Department of Justice, Washington, DC, counsel for Respondent. Before Board Judges DRUMMOND, KULLBERG, and SULLIVAN. SULLIVAN, Board Judge. Delta State University (DSU) appeals the decision of the contracting officer for the Department of Justice, Bureau of Prisons (BOP), denying a claim for payment pursuant to the terms of a memorandum of understanding. Because the Board lacks jurisdiction to decide this appeal, we dismiss it without prejudice. Background DSU entered in a memorandum of understanding (MOU) with the Federal Correctional Complex, Yazoo City, Mississippi, in June 2018, titled “The Yazoo City Project CBCA 6768 2 - Center for Social Justice and Civil Engagement (CSJCE).” Pursuant to the MOU, a professor within the CSJCE at DSU was to fulfill certain program goals, including “enhanc[ing] student academic success” by “provid[ing] material support to the school district.” DSU, through its efforts, was also to “encourage students to consider future employment at the Federal Complex at Yazoo City,” the only goal that mentioned the Federal Government. DSU and BOP had entered into similar arrangements for seventeen years, through which the Yazoo City School District and DSU worked together to “prepare students to continue their academic work in colleges and universities, to sharpen their employable skills, and to provide as good a candidate for federal service as possible.” To fulfill these goals, DSU was to interview individuals in local parishes and consult with the high school to determine the needed technology and supplies to be purchased for students. In exchange for these efforts, BOP would pay invoices submitted by DSU. The work was to be conducted between May and September 2018. In May 2019, DSU submitted a claim to the BOP contracting officer for $86,490.06, after BOP refused to pay its invoices. In December 2019, the contracting officer denied the claim, asserting that the person who signed the MOU lacked authority so there was no valid contract. The contracting officer stated that DSU could appeal the decision to the Board or the U.S. Court of Federal Claims. Upon docketing, the Board sua sponte issued an order for DSU to show cause why the appeal should not be dismissed for lack of jurisdiction because the MOU did not appear to be a procurement contract necessary for the Board to exercise jurisdiction. Discussion Upon review of the notice of appeal and supporting documentation provided by DSU, it appears that the Board may not properly exercise jurisdiction over this matter. “Subject matter jurisdiction is a threshold matter involving a tribunal’s ‘power to hear a case,’ and a tribunal must dismiss a case over which it lacks jurisdiction.” McAllen Hospitals LP v. Department of Veterans Affairs, CBCA 2774, et al., 14-1 BCA ¶ 35,758 (quoting Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)). DSU bears the burden to establish jurisdiction. Omni Pinnacle, LLC v. Department of Agriculture, CBCA 2452, 14-1 BCA ¶ 35,538. The Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2018), is the statute that provides the boards of contract appeals, including this one, jurisdiction to decide disputes arising under certain Federal Government contracts. The Board’s jurisdiction under the CDA is limited, however, to disputes arising under procurement contracts, that is, contracts made by an executive agency for “(1) the procurement of property, other than real property in CBCA 6768 3 being; (2) the procurement of services; (3) the procurement of construction, alteration, repair, or maintenance of real property; or (4) the disposal of personal property.” 41 U.S.C. § 7102(a). “Procurement’ is ‘the acquisition by purchase, lease or barter, of property or services for the direct benefit or use of the Federal Government.” Wesleyan Co. v. Harvey, 454 F.3d 1375, 1378 (Fed. Cir. 2006).