Nonmonetary claim seeking CBCA’s judgment on a matter of contract interpretation is dismissed for lack of jurisdiction, where the board concluded the claim actually sought monetary relief, but was not certified and did not state a sum certain. The board found the appellant had already incurred costs that the agency refused to reimburse, based on its interpretation of contract previsions, and therefore ruling in the appellant’s favor would entitle the appellant to monetary relief in a separate proceeding.
Duke University appealed a contracting officer’s decision on a non-monetary claim submitted to the Department of Health and Human Services National Institute of Allergy and Infectious Diseases.
In its initial communication to the agency, Duke asked the contracting officer for a decision regarding on a matter of contract interpretation. NIAID had interpreted the contract provisions to preclude Duke’s full recovery of its facilities and administrative costs, limiting recovery of F&A costs on the subcontracted portions of work under three 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 Duke had already incurred some F&A costs that were not being reimbursed. Instead of requesting money, Duke asked contracting officer to revisit her interpretation of the VTEU contract. However, the CO asserted the costs were unallowable and this appeal followed.
Because Duke’s claim did not request a monetary payment in a sum certain, the board asked the parties to address its jurisdiction to hear the claim. The parties filed a joint motion to dismiss without prejudice to its merits, although without expressly requesting that CBCA dismiss the appeal for lack of jurisdiction. Duke agreed to withdraw its claim and the agency agree to withdraw the CO’s final decision. However, they asked that the board rule that its reinstatement provisions 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.
The board dismissed the case for lack of jurisdiction, finding that Duke’s complaint represented a monetary claim, even though it sought nonmonetary relief. The board noted that Duke had already incurred costs that it will not be reimbursed under NIAID’s interpretation of the contract, and therefore its claim was, in truth, a monetary claim that did not identify a sum certain.
The board acknowledged that not every claim must involve the payment of money and that contractors need not submit a monetary claim to have a dispute over interpretation resolved, even if a decision may ultimately affect monetary amounts that the contractor may eventually receive. For example, if a contractor does not want to perform certain work, it may pursue a nonmonetary claim asking for the board’s judgment on a matter of contract interpretation. The contractor is not required to perform the work and then seek monetary relief.
However, in this case, Duke already incurred costs associated with the dispute, which it could have quantified and stated in a sum certain. A ruling in Duke’s favor would not result in Duke avoiding costs, but instead would be used only to entitle Duke to monetary relief in a separate proceeding. Accordingly, the board concluded the claim was an uncertified and unquantified monetary claim. Without jurisdiction, the board held it could not consider the parties’ other requests for dismissal without prejudice and waiver of reinstatement provisions.
Duke University is represented by Frederick Robinson of Norton Rose Fulbright US LLP, and by Caroline M. Mew of Perkins Coie LLP. The government is represented by Tami S. Hagberg, Office of the General Counsel, Department of Health and Human Services.
