Appeal of third party beneficiary seeking to enforce a government a contract is dismissed for lack of jurisdiction. The appellant argued that as the third party beneficiary of a government contract, he had the right to appeal to the CBCA. But under the Contract Disputes Act, only a contractor can appeal a claim to the boards of appeal. A third party beneficiary is not a contractor nor a party to a government contract. Accordingly, the board lacked jurisdiction over the appeal.
The Department of Veterans Affairs has program in which it pays residential contractors to renovate the houses of service-disabled veterans. The renovations improve the veterans’’ quality of life and enables them to live independently.
Through this program, the VA entered a contract with Moderno, Inc. to renovate the house of Rashid El Malik, a disabled veteran. The VA and Moderno signed the contract. Malik did not sign.
After experiencing problems with Moderno’s performance, El Malik filed a claim with the VA, alleging that Moderno had performed shoddy work. The contracting officer failed to issue a final decision. El Malik appealed to the CBCA.
The board noted that its jurisdiction is defined by the Contract Disputes Act. Under the CDA, only a contractor may appeal a contracting officer’s decision. The CDA defines a contractor as any party to a federal contract other than the government. Here, El Malik was not a party to a contract with the government and thus could not appeal to the CBCA.
El Malik argued that he was third party beneficiary of the contract and thus had the right to enforce the contract. The board did not dispute that he was a beneficiary. Nevertheless, third party beneficiaries are not considered contractors under the CDA and cannot appeal to the CBCA for enforce a government contract.
The board did note, however, that El Malik was not without options. Third party beneficiaries can seek damages in the Court of Federal Claims under the Tucker Act.
Rashid El Malik represents himself. The government is represented by Laetitia Coleman and Mary A. Mitchell of the Department of Veterans Affairs.
CBCA - Rashid el Malik