CBCA 8151

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING PUBLICLY RELEASED IN ITS ENTIRETY ON SEPTEMBER 22, 2025 DISMISSED FOR FAILURE TO STATE A CLAIM: September 4, 2025 CBCA 8151, 8162, 8163 GDM A-E, INC., Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Italia A. Carson, Polaris Law Group, P.C., North Pole, AK, counsel for Appellant. Neil S. Deol, Office of General Counsel, Department of Veterans Affairs, Decatur, GA; and Kathleen Ramos, Office of General Counsel, Department of Veterans Affairs, Arlington, TX, counsel for Respondent. Before Judges GOODMAN, KULLBERG, and KANG. GOODMAN, Board Judge. GDM A-E, Inc. (GDM or appellant) filed three appeals from the Department of Veterans Affairs (VA or respondent) contracting officer’s (CO) final decisions (COFDs) denying GDM’s certified claims concerning three contracts.1 These appeals were docketed 1 Appellant designated its notices of appeal, which were not paginated, as complaints in the three appeals. References to page numbers in the complaints are to the CBCA 8151, 8162, 8163 2 as CBCA 8151, CBCA 8162, and CBCA 8163. Respondent filed a motion to dismiss in each of these appeals for failure to state a claim upon which relief may be granted, presenting substantially similar legal issues across the motions.2 The Board consolidated the appeals on August 27, 2025, pursuant to Board Rule 2(f) (48 CFR 6101.2(f) (2024)) and resolves the three motions to dismiss in this decision.3 We grant respondent’s motions and dismiss these consolidated appeals for failure to state a claim. Background The Solicitations and Contracts The VA issued Requests for A/E [Architect-Engineer] Fee Proposals (solicitations) pursuant to Federal Acquisition Regulation (FAR), part 36, Construction and Architect- Engineering Contracts. The solicitations sought proposals to award contracts to A/E contractors who would, in turn, design construction projects to attain goals associated with Electronic Health Record Modernization (EHRM) projects. Respondent’s Motions to Dismiss at 1. For each solicitation, the VA prepared an independent government cost estimate (IGCE), which was used to determine the VA’s estimated construction contract price (ECC price) for the project that would be designed by the A/E contractor. Id. PDF document filed, beginning with the transmittal cover. References to exhibits are to appeal file exhibits. 2 The motions are substantially identical. References to page numbers in the motions are to all three motions without identification of docket number, unless otherwise indicated. 3 Appellant retained counsel after appellant’s chief executive officer filed the notices of appeal and oppositions to respondent’s motions. “We construe a pro se litigant’s pleadings liberally,” but such lenience does not affect “a pro se litigant’s burden of proof or our [assessment] of the factual record.” House of Joy Transitional Programs v. Social Security Administration, CBCA 2535, 12-1 BCA ¶ 34,991, at 171,975 (citing Haines v. Kerner, 404 U.S. 519, 520 (1972); Greenlee Construction, Inc. v. General Services Administration, CBCA 416, 07-1 BCA ¶ 33,514, at 166,062). CBCA 8151, 8162, 8163 3 Each solicitation and awarded contract contained the Design Within Funding Limitations clause (APR 1984), FAR 48 CFR 52.236-22 (2021) (FAR 52.236-22), which included the ECC price for the project to be designed and reads as follows: (a) The Contractor shall accomplish the design services required under this contract so as to permit the award of a contract, using standard Federal Acquisition Regulation procedures for the construction of the facilities designed at a price that does not exceed the estimated construction contract price as set forth in paragraph (c) of this clause. When bids or proposals for the construction contract are received that exceed the estimated price, the contractor shall perform such redesign and other services as are necessary to permit contract award within the funding limitation. These additional services shall be performed at no increase in the price of this contract.