CBCA 8431

APPELLANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT GRANTED; RESPONDENT’S CROSS-MOTION FOR SUMMARY JUDGMENT DENIED: July 25, 2025 CBCA 8431 TRIBAL HEALTH, LLC, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent. Edward T. DeLisle, Andrés M. Vera, and Amaiya L. Johnson of Thompson Hine LLP, Washington, DC, counsel for Appellant. Anthony E. Marrone, Office of the General Counsel, Department of Health and Human Services, Boston, MA; and Eno-Obong J. Essien, Office of the General Counsel, Department of Health and Human Services, Baltimore, MD, counsel for Respondent. Before Board Judges LESTER, SULLIVAN, and NEWSOM. LESTER, Board Judge. Soon after this appeal was filed on May 7, 2025, appellant, Tribal Health, LLC (Tribal Health), filed an emergency motion for immediate declaratory relief, which the Board interpreted as seeking partial summary judgment on entitlement. In July 2024, Tribal Health executed a bridge contract with the Indian Health Service (IHS) to provide hospital emergency room health care services for three months at a rural hospital under a bridge contract, which, through an option exercise, IHS extended through the end of December CBCA 8431 2 2024. On the day that the contract was set to conclude, the IHS contracting officer sent Tribal Health an email directing it to continue with the work covered by the bridge contract, which Tribal Health interpreted to be the exercise of a second option in the bridge contract. IHS, however, did not view the contracting officer’s email as an option exercise. IHS says that, by sending the email, the contracting officer was directing Tribal Health to continue work that would be covered by a new contract that the parties would negotiate at a later date, which would include lower hourly rates than those authorized by the bridge contract. IHS later sent what it calls a “letter contract” to Tribal Health for signature, but Tribal Health disputed IHS’s right to require it to pay its hospital workers less than that to which IHS had agreed in the bridge contract. Because Tribal Health has not signed the letter contract, IHS has paid Tribal Health nothing for more than $8 million in hospital health care services that Tribal Health has provided (and continues to provide) since January 2025, even though IHS does not dispute that Tribal Health should eventually be paid. Before the Board now are cross-motions for summary judgment asking us to identify the contract mechanism under which Tribal Health is currently providing services. IHS asserts that we should adopt the letter contract as a binding agreement between the parties, while Tribal Health believes that the IHS contracting officer’s December 31, 2024, email requiring Tribal Health to continue to provide services should be viewed as an implicit exercise of an option in the bridge contract. We have expedited proceedings in this matter, without objection from either party, based on Tribal Health’s complaints that it is having to incur significant financing costs through letters of credit to allow it to pay the employees providing the hospital services, given IHS’s refusal to pay any of the invoices that Tribal Health has submitted since January 2025, and that its ability to continue to finance the entirety of the Pine Ridge emergency department (ED) services, without any payment from IHS, is near an end. For the reasons set forth below, because it is a basic rule of contract law that a contract comes into existence only through an offer and a voluntary acceptance of that offer, IHS cannot bind Tribal Health to a letter contract to which Tribal Health has never consented. That being said, because the email from the IHS contracting officer directing Tribal Health to continue work after December 31, 2024, identified a lower price than required by the bridge contract’s option provision, Tribal Health could not reasonably view the email as a valid exercise of the option, even though, had it wanted, it could have waived (but was not required to waive) the pricing defect and agreed to perform at the lower price. The situation before us, then, involves a contractor that has been performing millions of dollars in essential services at the contracting officer’s direction and insistence for more than seven months without a contract.