CBCA 5992

DISMISSED FOR LACK OF JURISDICTION: April 6, 2018 CBCA 5992 DUKE UNIVERSITY, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent. Frederick Robinson of Norton Rose Fulbright US LLP, Washington, DC; and Caroline M. Mew of Perkins Coie LLP, Washington, DC, counsel for Appellant. Tami S. Hagberg, Office of the General Counsel, Department of Health and Human Services, Washington, DC, counsel for Respondent. Before Board Judges BEARDSLEY, ZISCHKAU, and LESTER. LESTER, Board Judge. Appellant, Duke University (Duke), filed an appeal of a contracting officer’s decision on what Duke referred to as a “non-monetary claim” that it had submitted to the National Institute of Allergy and Infectious Diseases (NIAID) within the Department of Health and Human Services’ National Institutes of Health. Duke does not include in its claim a request CBCA 5992 2 for a monetary payment in a sum certain. In light of the Court of Appeals for the Federal Circuit’s recent decision in Securiforce International America, LLC v. United States, 879 F.3d 1354 (Fed. Cir. 2018), which addressed tribunals’ jurisdiction to entertain certain disputes involving nonmonetary claims, the Board asked the parties to address the extent to which the Board possesses jurisdiction to entertain Duke’s claim. Subsequently, the parties filed a joint motion to dismiss this appeal without prejudice to its merits, although without expressly requesting that we dismiss the appeal for lack of jurisdiction. However, they ask that, in dismissing without prejudice, we rule that the “reinstatement” provisions of Board Rule 12(d), 48 CFR 6101.12(d) (2017), do not apply so that, if Duke submits a monetary claim to NIAID, Duke will retain the right to file suit in the Court of Federal Claims. Duke has already incurred costs that it will not be reimbursed under NIAID’s interpretation of the contract, and it is clear that Duke’s current claim is, in reality, a monetary claim that does not identify a sum certain that Duke will seek to recover. We lack jurisdiction to entertain Duke’s appeal. Background On August 1, 2017, Duke submitted a letter to the NIAID contracting officer, requesting a decision regarding a dispute arising under contract no. HHSN272201300017I (the Vaccine and Treatment Evaluation Units (VTEU) contract) and three associated task orders (nos. 8, 13, and 17) awarded in 2015 and 2016. In its letter, Duke challenged NIAID’s interpretation of some of the VTEU contract provisions and requested a contracting officer’s decision on its interpretation question. NIAID had interpreted the contract provisions to preclude Duke’s full recovery of its facilities and administrative (F&A) costs, limiting recovery of F&A costs on the subcontracted portions of work under the three subject task orders. Duke neither included a request for money in its letter nor identified the amount of previously unpaid costs to which it believed it was entitled, even though the information in the record indicates that Duke had already incurred some F&A costs that were not being reimbursed at that point in time. Instead of requesting money, Duke requested that the NIAID contracting officer revisit her interpretation of the VTEU contract provisions and Duke’s entitlement to full F&A cost recovery. The NIAID contracting officer issued a decision on October 11, 2017 (which Duke received on October 18, 2017), in which she explained her interpretation of the VTEU contract provisions and concluded “that the F&A costs applied to the subcontracted portions of the [statement of work] represent excessive pass-through charges per [Federal Acquisition Regulation (FAR)] Clause 52.215-23 and are unallowable per FAR Section 31.203(i).” She found “that Duke has not demonstrated value added for the subcontracted work under Task Orders 8, 13, and 17” sufficient to justify use of a different method of calculating an CBCA 5992 3 appropriate F&A cost recovery, and she detailed the factual reasons that she believed supported her finding.