CBCA 8323

RESPONDENT’S MOTION TO DISMISS FOR LACK OF JURISDICTION DENIED: December 18, 2025 CBCA 8323 HARBOR SERVICES, INC., Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Luke R. Gleissner of Gleissner Law Firm, L.L.C., Columbia, SC; and Benjamin C. Bruner of Bruner, Powell, Wall, & Mullins, LLC, Columbia, SC, counsel for Appellant. Laetitia C. Coleman, Office of General Counsel, Department of Veterans Affairs, Arlington, TX, counsel for Respondent. Before Board Judges RUSSELL, VOLK, and NEWSOM. NEWSOM, Board Judge. Respondent, the Department of Veterans Affairs (VA), moved to dismiss this appeal for lack of jurisdiction on the ground that the notice of appeal was untimely. The issue turns on the date of the contracting officer’s final decision. We conclude that, on the facts presented, (1) the contracting officer’s decision in 2023 was not final; and (2) after appellant submitted a claim in 2024, there was a deemed denial of this claim. We conclude that the Board possesses jurisdiction and deny the motion. CBCA 8323 2 Background The VA awarded contract VA246-16-C-0035 to Harbor Services, Inc. (appellant or HSI) to renovate a portion of a VA medical center. Respondent’s Motion to Dismiss at 1; Exhibit 1.1 According to HSI, as the work progressed, the VA changed the design and caused delays. In 2021 and 2022, HSI submitted requests for equitable adjustment (REA), seeking reimbursement for delay costs, but the VA denied most of the costs. Appellant’s Opposition to Motion to Dismiss at 2-3; Exhibits C, D, E at 4. Thereafter, the parties exchanged correspondence that lay at the heart of this dispute. In January 2023, HSI submitted another request for $1,925,342.24 in delay costs (January 2023 submission). Exhibit F at 6. The VA characterizes HSI’s January 2023 submission as a claim under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109 (2018), while HSI contends that the January 2023 submission was not a claim because it lacked a request for a contracting officer’s decision. The contracting officer responded to the January 2023 submission with a series of letters. In the first two letters, he offered to negotiate and requested additional support for HSI’s costs. Apparently disappointed with HSI’s response, on April 10, 2023, the contracting officer issued a letter labeled “CONTRACTING OFFICER’S FINAL DECISION” (April 2023 purported final decision), which denied HSI’s “REA/Claim,” referencing HSI’s January 2023 submission. Exhibit J at 20. An internal government email states that the VA’s objective, in issuing the two requests to negotiate as well as the 2023 purported final decision, was to “get [HSI] to the table.” Exhibit K at 3. Two days after issuing the 2023 purported final decision, notwithstanding having issued what he labeled a “final” decision, the contracting officer emailed HSI and asked about the contractor’s “plan for providing the documentation” that the VA had requested. Exhibit K at 1-2. On May 10, 2023, HSI responded to the 2023 purported final decision, asserting that the parties had agreed not to treat HSI’s January 2023 submission as a claim while they negotiated. HSI asserted that it never requested a final decision and that the January 2023 submission should not be called a claim until Harbor decided otherwise, stating: The VA continues to reference this discussion as a “Claim” but per our discussions, emails, agreement, and at the Government[’s] request Harbor 1 Exhibits with numerals are attachments to respondent’s motion to dismiss, and exhibits with letters are attachments to appellant’s opposition to the motion to dismiss. CBCA 8323 3 agreed to postpone submitting this REA as a “Claim” as the Government requested to “Negotiate” prior to Harbor Moving forward with a Claim. These discussions are concerning the “REA” and should not be called a Claim any longer until Harbor decides to submit a Claim. Exhibit L at 2 (emphasis added). The contracting officer responded on May 24, 2023, insisting that HSI’s January 2023 submission was a claim, yet he acknowledged that HSI “doesn’t want to call this a Claim” and wanted to continue “to negotiate.” Exhibit M at 4. He then offered to re-review the submission if HSI “ma[d]e the necessary corrections and changes.” Id. at 10.