MOTION TO DISMISS FOR LACK OF JURISDICTION DENIED:  February 26, 2009 
CBCA 1305 
LIBBEY PHYSICAL MEDICINE CENTER AND HOT
 
SPRINGS HEALTH SPA,
 
Appellant, 
v. 
DEPARTMENT OF THE INTERIOR, 
Respondent. 
Charles A. Banks and Robert W. Francis of Banks Law Firm, PLLC, Little Rock, 
AR, counsel for Appellant. 
Charles B. Wallace, Office of the Solicitor, Department of the Interior, Washington, 
DC, counsel for Respondent. 
Before Board Judges VERGILIO, DRUMMOND, and WALTERS. 
Opinion for the Board by Board Judge WALTERS . Board Judge VERGILIO concurs. 
WALTERS, Board Judge. 
Respondent, the Department of the Interior (DOI), moves to dismiss the appeal for 
lack of subject matter jurisdiction, urging that the concessions contract that is the subject of 
the appeal is not a contract under the purview of the Contract Disputes Act of 1978, 41 
U.S.C. §§ 601-613 (2006) (CDA). Appellant, Libbey Physical Medicine Center and Hot 
Springs Health Spa (Libbey),  opposes  the motion and insists that the CDA applies to the 
instant dispute.  The Board denies the motion for the reasons set forth below. 

    
 
              
   
     
 
 
     
 
 
 
      
  
 
 
2 CBCA 1305 
Factual Background 
DOI awarded Libbey a concessions contract, contract no. CCHOSP004 (the contract), 
to provide a health spa with certain accommodations, facilities, and services for the public 
for hydrotherapy, physical therapy, and physical fitness within the Hot Springs National 
Park, Hot Springs, Arkansas, for a ten-year period beginning January 1, 1988, and ending 
December 31, 1997. The contract was executed on behalf of the Secretary of the Interior 
(Secretary) by the Regional Director of the Southwest Region of DOI’s National Park 
Service (NPS).  Respondent’s Motion, Exhibit A, Contract.  
The contract required Libbey to pay scheduled fees to NPS for the operation of its 
bathhouse concession, including building use fees, thermal water and pool capacity fees, and 
tubbage fees. In terms of any claims or disputes that may arise under the contract, the 
contract contained the following Disputes clause: 
(a) Except as otherwise provided in this contract, any dispute, or claim, 
concerning this contract which is not disposed of by agreement shall be 
decided by the Director, National Park Service, who shall reduce his decision 
to writing and mail or otherwise furnish a copy thereof to the Concessioner. 
The decision of the Director shall be final and conclusive unless, within 30 
days from the date of receipt of such copy, the Concessioner mails or otherwise 
furnishes to the Director a written notification of appeal addressed to the 
Secretary.  In accordance with the rules of the Board of Contract Appeals, 
the decision of the Secretary or his duly authorized representative for the 
determination of such appeals, shall be final and conclusive unless 
determined by a court of competent jurisdiction to have been fraudulent, 
or capricious, or arbitrary, or so grossly erroneous as necessarily to imply 
bad faith, or not supported by substantial evidence.  In connection with any 
appeal proceeding under this clause, the Concessioner shall be afforded an 
opportunity to be heard and to offer evidence in support of his appeal.  Pending 
final decision of a dispute or claim hereunder, the Concessioner shall proceed 
diligently with the performance of the contract or as otherwise required in 
accordance with the Director’s decision.  Claims shall be considered hereunder 
only if notice is filed in writing with the Director within 30 days after the 
Concessioner knew or should have known of the facts or circumstances giving 
rise to the claim. 
Respondent’s Motion, Exhibit A, Contract § 17(a), at 19 (emphasis added). 

 
 
 
   
    
      
 
     
   
 
 
 
 
  
 
          
 
  
  
  
3 CBCA 1305 
The contract specifically contemplated that Libbey would construct and provide 
buildings, structures, fixtures, equipment, and other improvements for purposes of its 
performance under the contract, and, in this regard, recognized that Libbey would have a 
“possessory interest” in all such improvements.  Respondent’s Motion, Exhibit A, Contract 
§ 6, Concessioner’s Improvements, at 6.  In terms of this possessory interest, the contract 
provided for Libbey to obtain “just compensation” for such an interest upon termination or 
expiration of the contract, under two alternative factual scenarios.  First, where Libbey’s 
operations were to be continued by a successor concessioner contractor, the contract 
provided that Libbey was to sell and transfer the possessory interest in improvements to that 
successor contractor at fair value, and defined how fair value was to be measured and how 
any disputes regarding such a sale would be resolved -- by means of binding arbitration 
between the two private entities under the auspices of the American Arbitration Association. 
Id. § 12, Compensation ¶¶ (a)-(b), at 12-14. Second, where there would be no continuation 
of operations beyond contract termination or expiration, the contract called for DOI to 
purchase the possessory interest:
 (c) contract expiration or termination where operations are to be discontinued: 
If for any reason, including contract expiration or termination as described 
herein, the Concessioner shall cease to be required by the Secretary to conduct 
the operations authorized hereunder, or substantial part therof, and the 
Secretary at the time chooses to discontinue such operation, or substantial part 
thereof within the area, and/or to abandon, remove, or demolish any of the 
Concessioner’s Improvements, if any, then the Secretary will take such action 
as may be necessary to assure the Concessioner of compensation for (i) its 
possessory interest in Concessioner Improvements, and Government 
Improvements, if any, in the amount of their book value (unrecovered cost as 
shown in Federal Income Tax Returns); (ii) the cost to the Concessioner of 
restoring any assigned land to a natural condition, including removal and 
demolition (less salvage) if required by the Secretary; and (iii) the cost of 
transporting to a reasonable market for sale such movable property of the 
Concessioner as may be made useless by such determination.  Any such 
property that has not been removed by the Concessioner within a reasonable 
time following such determination shall become the property of the United 
States without compensation therefor. 
Id. ¶ (c), at 14.  The contract provided for compensation for the possessory interest, even in 
the event of a contract termination by reason of the concession contractor’s default in 
performance.  Id. ¶ (d), at 14. 

 
 
  
 
 
 
  
 
 
          
 
        
   
  
     
 
 
    
       
 
  
  
4 CBCA 1305 
Beyond its scheduled expiration on December 31, 1997, the contract was extended 
by the parties by eight successive one-year extensions, the last of which expired on 
December 31, 2005.  On September 16, 2005, NPS notified Libbey that it would not issue 
another extension.  Thereafter, DOI advises, for several months, the parties engaged in an 
exchange of correspondence regarding the procedure for Libbey’s submission of a claim for 
recovery of compensation due for any possessory interest in improvements it may have 
acquired under the contract.  Ultimately, on June 27, 2006, Libbey submitted a formal 
“Claim on Concession Contract CCHOSP-004-88” (the claim).  The claim, in the total 
amount of $253,056.34, was accompanied by a certification of Dewey Crow, an owner, 
operator, and authorized representative of Libbey, stating: “This claim is made in good faith 
and represents, to the best of my knowledge and belief, an accurate and fair amount of the 
government’s liability for improvements that were made in connection with running Libbey 
Memorial.  The exhibits attached hereto are, to the best of my knowledge, accurate and 
complete.” Supplement to Appellant’s Response to Motion to Dismiss, “Claim on 
Concession Contract CCHOSP-004-88.” 
DOI relates that Libbey’s claim was denied in its entirety by the Regional Director 
of the NPS Southwest Region (Director), “[i]n accordance with the terms of the disputes 
clause.” Respondent’s Motion at 3. This denial was effected by letter to Libbey’s counsel 
dated January 3, 2007.  Respondent’s Motion, Exhibit B. 
On February 1, 2007, i.e., within the thirty-day appeal period specified under the 
Disputes clause, Libbey sent a written “Notice of Appeal” to the Secretary.  After what DOI 
describes as “an internal Departmental delay,” it notified Libbey by letter of October 18, 
2007, that its appeal would be decided by the Assistant Secretary for Fish and Wildlife and 
Parks (Assistant Secretary).  In this connection, Libbey was advised that it would be 
afforded the opportunity to submit additional evidence and to appear before the Assistant 
Secretary for oral presentation.  Respondent’s Motion, Exhibit C.  On February 14, 2008, 
Libbey submitted a supplement to its claim, providing additional argument and support.  By 
letter dated May 16, 2008, the Assistant Secretary affirmed the Director’s decision, again 
denying Libbey’s claim in its entirety. The letter stated that it was to “serve as the final and 
conclusive decision” of the claim, “pursuant to [Contract] Section 17 [the Disputes clause].” 
Respondent’s Motion, Exhibit D.  Thereafter, on August 5, 2008, an appeal was filed with 
this Board from the decision of the Assistant Secretary. 
The present motion to dismiss for lack of subject matter jurisdiction was filed on 
October 20, 2008, and Libbey’s response was filed on November 24, 2008.  A DOI reply 
was filed on December 11, 2008.  As explained below, the parties also filed supplemental 
briefs on January 23, 2009, in response to a Board request. 

 
 
 
 
 
    
      
     
 
  
   
 
 
  
5 CBCA 1305 
Discussion
 DOI maintains that the instant contract, a concessions contract, falls outside the 
scope of the CDA and thus is beyond this Board’s subject matter jurisdiction.  The CDA, 
as DOI correctly states, applies to disputes arising out of or relating to express or implied 
contracts of federal executive agencies for: 
(1) the procurement of property, other than real property; 
(2) the procurement of services; 
(3) the procurement of construction, alteration, repair, or maintenance of real 
property; or 
(4) the disposal of personal property. 
41 U.S.C. § 602(a). 
Here, the 1987 concessions contract, an express contract, clearly called for the 
procurement of construction, alteration, repair, and maintenance of real property, title to 
which vested in the Government.  A dispute regarding such procurement thus is nothing 
other than a dispute to be addressed and resolved under the CDA.  41 U.S.C. § 602(a). 
Congress has never amended the CDA to carve out an exception for disputes arising out of 
the valuation of concessioner’s interests in facilities constructed, altered, repaired or 
maintained under DOI concessions contracts. 
DOI argues that, because the “primary purpose” of a concessions contract such as the 
one at issue is to obtain services for the benefit of park visitors, the CDA cannot apply to the 
present dispute.  In support of its position, DOI cites to a decision of the United States Court 
of Appeals for the District of Columbia Circuit which held, generally, that NPS concessions 
contracts do not fit within the ambit of the CDA. See Amfac Resorts, L.L.C. v. Department 
of the Interior , 282 F.3d 818, 835 (D.C. Cir. 2002).  DOI also cites to decisions of the 
United States Court of Federal Claims.  See Frazier v. United States, 67 Fed. Cl. 56, 59 
(2005); YRT Services Corp. v. United States, 28 Fed. Cl. 366, 393 (1993).  None of these 
decisions is persuasive, nor is any binding precedent for this Board; we are a part of the 
Federal Circuit, not the District of Columbia Circuit, and the Court of Federal Claims is a 
coordinate, rather than a superior, tribunal.  The United States Supreme Court, whose 
decisions obviously are binding precedent for the Board, declined to resolve whether the 
CDA applies to NPS concessions contracts, since it found the controversy it faced involving 

   
 
 
 
 
 
   
 
  
     
  
 
      
  
   
   
       
 
 
         
6 CBCA 1305 
such contracts not ripe for resolution.  See National Park Hospitality Ass’n v. Department 
of the Interior, 538 U.S. 803 (2003).1 
Though it has yet to deal directly with disputes relating to concessions contracts, our 
appellate court, the Court of Appeals for the Federal Circuit, indicated that it would apply 
the CDA to a contract having multiple purposes, where at least one of those purposes is to 
secure repair, construction, or other services that benefit the Government and where the 
parties’ rights and responsibilities regarding such services are readily identifiable and 
separable within the contract.  See Bonneville Associates v. United States, 43 F.3d 649 (Fed. 
Cir. 1994). Here, the work Libbey undertook to construct, repair, and maintain facilities and 
other concessioner improvements clearly benefited the Government and was a condition of 
its permitted access to and use of the premises at the Hot Springs National Park.  Moreover, 
NPS took great pains to define the parties’ rights and responsibilities regarding such 
facilities and concessioner improvements, under separate sections of the contract, i.e., 
sections 6 and 12. 
The instant case is unlike the situation the Federal Circuit faced in Florida Power & 
Light Co. v. United States , 307 F.3d 1364 (Fed. Cir. 2002), where it found the CDA 
inapplicable.  That case involved a contract under which the Government was furnishing, 
not procuring, services, i.e., uranium enrichment services that the Government was selling 
2to various utility companies.  Although there the Government temporarily acquired title  to
235lower grade uranium (U ) feed material from the utility companies so as to process and 
1 Although NPS regulations contain a statement asserting that concessions contracts 
are not contracts subject to the CDA, 36 CFR 51.3 (2000), because NPS “is not empowered 
to administer the CDA,” the Supreme Court discounted that statement as “nothing more than 
a ‘general statemen[t] of policy’ designed to inform the public of NPS’ views on the proper 
application of the CDA.”  National Park Hospitality Ass’n, 538 U.S. at 809.
2  In Florida Power, the Government (Department of Energy) would take title to feed 
material from several utility company purchasers, and would process such feed material and 
deliver enriched uranium to the various purchasers, without keeping track of whose material 
was being processed and delivered since, as the Court explained, all such material was 
“fungible.”  In contrast, the improvements involved in this case clearly were constructed and 
maintained specially by Libbey for the instant contract and could not be considered fungible. 
Also, whereas in Florida Power, the transfer of title back and forth between the Government 
and the purchaser was necessary, integral, and incidental to the Government’s performance 
of its enrichment services, the possessory interest title transfer here with regard to Libbey’s 
improvements at the park was not part of or incidental to Libbey’s performance of services 
for park visitors, but only was to occur after those services were no longer required. 

 
 
  
  
 
  
  
   
  
  
 
 
 
  
 
  
  
 
 
     
  
     
7 CBCA 1305 
238enrich it for them into higher grade (U ) product, which it ultimately delivered to the utility 
companies, and although the Government also retained title to and disposed of waste 
materials (so-called “tailings”), the Court did not find any such title acquisition and disposal 
to constitute either a procurement or disposal of personal property that would be subject to 
the CDA.  Instead, the Court found all such title acquisition and disposal to be incidental to 
and part of a “single transaction,” the Government’s sale of uranium enrichment services. 
Florida Power, 307 F.3d at 1374.  The Court distinguished the facts in Florida Power from 
those in Bonneville , where it had found the contract to have provided for two separate 
transactions: (1) the Government’s acquisition of real property (something expressly 
excluded from CDA coverage); and (2) the contractor’s performance, as a precondition to 
the real property acquisition, of specified alteration services (something expressly covered 
by the CDA).  
In the present case, like Bonneville, there were at least two transactions contemplated 
and separately provided for under the contract: (1) Libbey’s provision of health spa, therapy, 
and physical fitness services to national park visitors; and (2) the Government’s acquisition, 
upon contract expiration, of title to Libbey’s possessory interest in facilities and 
improvements it was required to construct and maintain. Valuation of, payment for, and 
transfer of title to Libbey’s possessory interest, although provided for within the same 
contractual document as the grant of a concession for operation of Libbey’s health spa 
facility, theoretically could have been covered by a completely separate (albeit related) 
contractual document.  Also, unlike Florida Power, where the dispute related to the pricing 
of the uranium enrichment services the Government was selling, the dispute here relates 
directly to the compensation claimed for the property interest in improvements the 
Government was acquiring after Libbey’s contract expired. Indeed, no separate pricing of 
or compensation for the uranium feed material was specified by the contract in Florida 
Power, as contrasted with the separate specification under contract section 12 for 
compensation due Libbey for the improvements at issue. 
DOI, in its reply memorandum, places great reliance on the 2005 decision of the 
Court of Federal Claims in Frazier .  Aside from that decision having no binding 
precedential value, we find its facts to be readily distinguishable from those presented here. 
Unlike the instant dispute, the dispute in Frazier did not involve a claim for the 
Government’s payment of fair value for facilities constructed in furtherance of the 
concession lease, but rather, a claim for lost profits in the operation of a marina under that 
lease by reason of an alleged Government breach (release of a study proposing closure of 
the concession area). Indeed, unlike Libbey’s contract, the concessions lease in Frazier did 
not mandate even a successor concessioner’s acquisition of facilities constructed under the 
lease, and it contained nothing whatsoever, let alone separate special provisions, regarding 
the Government’s acquisition of such facilities. 

 
    
 
      
 
 
  
 
 
             
    
  
  
 
    
 
8 CBCA 1305 
The decisions of our predecessor boards of contract appeals are binding precedent for 
this Board.  Business Management Research Associates, Inc. v. General Services 
Administration, CBCA 464, 07-1 BCA ¶ 33,486, at 165,989.  In this regard, one of our 
predecessors, the Department of the Interior Board of Contract Appeals (IBCA), on more 
than one occasion, held disputes under certain DOI NPS concessions contracts to be 
justiciable under the CDA. More particularly, although the IBCA made clear that the CDA 
might not apply to all disputes involving concessions contracts, it held the CDA applicable 
where the contracts required the concessioner to provide construction, alteration, repair, or 
other services as a condition of the permitted access to a national park, services that would 
benefit the Government.  Watch Hill Concession, Inc., IBCA 4284/2000, 01-1 BCA ¶ 31,298, 
at 154,520-21;  National Park Concessions, Inc. , IBCA 2995, 94-3 BCA ¶ 27,104, at 
135,096-98; R&R Enterprises, IBCA 2417, 89-2 BCA ¶ 21,708, at 109,145-47;  see also 
Great South Bay Marina, Inc. , B-296335 (July 13, 2005) (Comptroller General noted that 
some NPS concessions contracts are “hybrids, and require the delivery of goods and/or 
services to the government, in addition to authorizing the contractor to provide services to 
park visitors”);   Alpine Camping Services, B-238625.2 (June 22, 1990) (Comptroller General 
acknowledged CDA applicability where the concessioner was required to recondition and 
maintain recreation facilities and perform tasks to protect land, maintain campsites, and 
preserve structures in accordance with Government specifications, all to the benefit of the 
Government). 
DOI seeks to distinguish the IBCA precedent on the basis that the concessions 
contracts in those prior cases purportedly did not have the same Disputes clause as was 
present here.  Even if the Disputes clause in the instant contract were read as DOI would 
have the Board read it, the clause would not supersede this Board’s jurisdiction under the 
CDA. Indeed, as the Court of Appeals for the Federal Circuit has observed, “the CDA 
trumps a contract provision inserted by the parties that purports to divest the Board of 
jurisdiction, unless the contract provision otherwise depriving jurisdiction is itself a matter 
of statute primacy.” Burnside-Ott Aviation Training Center v. Dalton, 107 F.3d 854, 858-59 
(Fed. Cir. 1997).  DOI has not tried to link the Disputes clause here to any statute that would 
take precedence over the CDA. 
DOI also argues that the CDA would not be applicable in this case, because there was 
no contracting officer’s decision, a necessary prerequisite for Board jurisdiction under the 
CDA.  This argument is likewise unpersuasive.  Although the Director in this case was not 
referred to specifically as a “contracting officer,” under Federal Acquisition Regulation 
(FAR) 2.101, Definitions, the term “contracting officer” is defined as follows: 

    
  
  
   
 
    
 
        
  
 
  
 
         
 
  
   
   
  
       
     
9 CBCA 1305 
“Contracting officer” means a person with the authority to enter into, 
administer, and/or terminate contracts and make related determinations and 
findings. 
48 CFR 2.101 (2008).  Here, it was the Regional Director of the NPS Southwest Region who 
executed the instant concessions contract and who was designated therein to make the 
decision on any concessioner claim for compensation under section 12(c) of the contract. 
Accordingly, assuming that the matter at issue was appropriately one under the CDA, it 
would have been proper to have submitted the claim to the Regional Director for a 
contracting officer’s decision. In terms of other prerequisites for “claim” status under the 
CDA, the present claim would have satisfied the CDA requirement that it be for a “sum 
certain,” i.e., it sought a total of $253,056.34.  Further, the claim appears to have been 
certified by an authorized Libbey representative with language that would have complied 
adequately with the claim certification provisions of the CDA.  Thus, were this matter 
properly under the CDA, the decision the Regional Director made would qualify as a 
contracting officer’s decision.
3   As to appeal timeliness, given the unusual language of the 
contract’s Disputes clause, 4  Libbey’s appeal to the Secretary within thirty days of the 
Regional Director’s decision in accordance with that clause cannot be said to have been 
untimely in terms of the ninety-day appeal limitation of the CDA.  Indeed, because the 
Regional Director’s decision failed to apprise Libbey properly as to its rights under the CDA 
to appeal that decision to this Board, the ninety-day limitation for such an appeal would not 
even have commenced.  Lawrence Harris Construction, Inc. , VABCA 7219, 05-1 BCA ¶ 
32,830, at 162, 438 ( citing Decker & Co. v. West, 76 F.3d 1573 (Fed. Cir. 1996)). 
Our analysis would not be complete, however, unless we address the provisions of the 
1998 National Parks Omnibus Management Act (the 1998 Act), 16 U.S.C. §§  5951-5966 
and, in particular, 16 U.S.C. § 5954. Although the parties did not initially mention the 1998 
Act, the Board requested that they do so by means of supplemental briefs. 
3 DOI regulations expressly preclude the Secretary from taking jurisdiction over and 
rendering final decisions for the agency in matters properly before the Board under the 
CDA. 43 CFR 4.5(a) (2007).  
4 Although not clear from the submissions, it may be that the provision for a thirty-
day appeal period and some of the other language contained within the instant Disputes 
clause were borrowed from what had been the standard federal construction contract 
Disputes clause under Standard Form 23-A that had been in use by DOI and other federal 
agencies prior to enactment of the CDA.  See Harry Claterbos Co., JV , IBCA 1153-5-77, 
78-1 BCA ¶ 12,888 (1977). 

 
 
 
 
 
  
     
  
      
 
 
   
 
 
   
   
   
     
  
10 CBCA 1305 
Under the 1998 Act, Congress changed the nature of the interest acquired by a 
concessioner in improvements it has constructed in connection with a DOI national parks 
concessions contract.  Instead of a possessory interest, concessioners acquire a so-called 
“leasehold surrender interest” in capital improvements they construct on or after that Act’s 
effective date, November 13, 1998, “pursuant to a concessions contract.” 16 U.S.C. §5954(a). 
For this purpose, the Act does not distinguish between capital improvement construction 
performed under a pre-November 13, 1998, contract and construction under a contract 
awarded after the Act’s effective date.  Id.  In addition, the 1998 Act addresses the situation 
where a possessory interest has been created under a pre-November 13, 1998, concessions 
contract, by reason of capital improvements construction accomplished prior 
to November 13, 1998, and where that pre-Act contract has been replaced by a new post-
November 12, 1998, contract.  In that situation, the 1998 Act provides for the possessory 
interest to be converted to a leasehold surrender interest having an initial value equal to the 
value of the previously existing possessory interest as of the termination date of the previous 
contract.  Id. § 5954(b)(2). In terms of disputes concerning the valuation of the possessory 
interest under the earlier contract upon its conversion to a leasehold surrender interest, the 
1998 Act expressly mandates that “a dispute between the concessioner and the Secretary [of 
the Interior] as to the value of such possessory interest” be “resolved through binding 
arbitration.” Id. 
In their supplemental briefs, both parties argue that the instant concessions contract, 
executed in 1987 for a ten-year term, was extended thereafter for successive one-year terms 
until 2005, and was never replaced with a new contract .  Accordingly, they maintain, the 
provisions of 16 U.S.C. § 5954(b)(2) are inapposite.  For pre-November 13, 1998, contracts, 
such as the present one, respondent points out, the statute provides that the concessioner is 
due compensation for its possessory interest “in the amount and manner as described” by the 
pre-November 13, 1998, contract, where that contract is not replaced by a new contract. 16 
U.S.C. § 5954(b)(1). Thus, respondent asserts, the terms of the 1987 concessions contract, 
including the contract’s Disputes clause, would still govern the resolution of any disputes 
between the concessioner and the agency regarding any compensation due Libbey. 
The Board finds the interpretation of the 1998 Act advanced by both parties here to 
be overly simplistic and incorrect.  Under the Act, an extension of an existing concessions 
contract issued after the Act’s effective date is expressly treated as a “new concessions 
contract.”
5   In this regard, 16 U.S.C. § 5952(2) reads: “Except as otherwise provided in this 
5 The parties also fail to acknowledge that the 1998 Act expressly prohibited a pre-
November 13, 1998, contract from being extended for more than three years beyond its 
expiration date without a new public solicitation. See 16 U.S.C. § 5952(11)(A).  DOI 

      
 
     
 
      
   
 
     
 
  
 
         
 
 
 
        
      
        
11 CBCA 1305 
section, prior to awarding a new concessions contract (including renewals or extensions of 
existing concessions contracts) the Secretary shall publicly solicit proposals for the 
concessions contract . . . .” Emphasis added; see also 16 U.S.C. § 5952(11) (“the Secretary 
may award, without public solicitation, the following: (A) A temporary concessions contract 
or an extension of an existing concessions contract for a term not to exceed 3 years in order 
to avoid interruption of services to the public. . . .”). Applicable DOI regulations also equate 
the extension of an existing contract with an award. 36 CFR 51.5 (1998); id. 51.23, .24 
(2008). 
The 1998 Act thus required that, under the first extension of the instant contract issued 
by DOI after November 12, 1998, i.e., the one that extended Libbey’s contract 
from January 1, 1999, through December 31, 1999, any possessory interest acquired for 
capital improvements constructed prior to November 13, 1998, be converted to a leasehold 
surrender interest having an initial value equal to the value of the previously existing 
possessory interest as of the termination date of the previous contract  16 
U.S.C. §5954(b)(2).  For this purpose, the “termination date” of the contract existing as of 
the effective date of the 1998 Act would have been December 31, 1998, i.e., the end of the 
initial extension period. Under the 1998 Act, were there a dispute between Libbey and the 
Secretary over the valuation of any such possessory interest as of that date, and the equivalent 
initial valuation of the leasehold surrender interest that arose as of the following date, January 
1, 1999, that dispute would be subject to binding arbitration.  Id. 
6 
regulations implementing the 1998 Act make clear that, even though individual extensions 
might only be for one-year periods, such extensions may not “exceed three years in the 
aggregate.”  36 CFR 51.23 (2008). 
6  The parties had also been asked to address in their supplemental briefs the 
Consolidated Appropriations Acts for Fiscal Year 2008, Pub. L. No. 110-161, § 6 (div. F, 
tit. I), 121 Stat. 1844, 2107 (2007), and a provision therein that is a note to 16 U.S.C. § 
5954. The provision entrusts the Court of Federal Claims with de novo judicial review of 
value determination decisions arising in a proceeding “conducted under a National Parks 
Service concessions contract issued prior to November 13, 1998.”  We find the provision 
inapplicable here because, as we explain above, the instant pre-November 13, 1998, contract 
was replaced with a series of new contracts (in the form of post-November 12, 1998, 
contract extensions). As such, all portions of Libbey’s claim under the current appeal relate 
to the existence and valuation of its interests in capital improvements under such new 
contracts –  in particular, the contract that came into existence as of January 1, 1999, and the 
one that terminated as of December 31, 2005 – rather than under the original pre-November 
13, 1998, concessions contract. 

      
      
  
 
 
         
 
    
 
 
 
      
  
  
  
     
 
   
  
12 CBCA 1305 
Nevertheless, this limited focus of Congressionally mandated arbitration on a potential 
related issue does not deprive this Board from resolving under the CDA the real matter at 
issue here, namely, the ultimate value of any leasehold surrender interests that may have 
existed as of the termination of the final contract on December 31, 2005.  See Burnside-Ott 
Aviation Training Center, Inc. v. United States , 985 F.2d 1574, 1580-81 (Fed. Cir. 1993) 
(noting that the Court of Claims had CDA jurisdiction when a dispute centered on the parties’ 
mutual contract rights and obligations, even though matters decided exclusively by the 
Department of Labor were part of the factual predicate to the dispute).  
Moreover, DOI has indicated, by way of a footnote to its supplemental brief, that 
Libbey engaged in construction at the park during three separate years, 1991, 2001, and 
2005.
7   In this regard, it appears that only the 1991 construction could have given rise to a 
possessory interest, since the construction during both 2001 and 2005 would have occurred 
after the effective date of the 1998 Act and, if anything, would have resulted in leasehold 
surrender interests.  16 U.S.C. § 5954(a)(1). Accordingly, any theoretical use of arbitration 
here would be limited to a dispute relating to the 1991 construction and then only to a dispute 
as to its initial valuation upon conversion from a possessory interest to a leasehold surrender 
interest.  All disputes about the valuation of any
8  leasehold surrender interests as 
of December 31, 2005 – i.e., disputes about the progression in value of the 1991 
improvements beyond the January 1, 1999, conversion date, and disputes that concern 
compensation for Libbey’s construction in 2001 and 2005 – remain disputes solely within 
this Board’s subject matter jurisdiction under the CDA.
9 
7 As to the 2005 construction, the parties disagree as to whether such construction 
was of capital improvements or merely involved ongoing maintenance.  DOI argues that the 
2005 construction represented only maintenance, since the costs were not capitalized on 
Libbey’s books, but rather expensed. In its claim, Libbey acknowleges that it charged the 
2005 costs as expenses, rather than capitalizing them, but explains that it did so only because 
the contract was not being renewed beyond 2005. 
8  The parties are at odds as to whether Libbey waived its rights regarding such 
interests in each instance and thus as to whether any interests ever came into being.
9  Notably, the 1998 Act is silent as to disputes between a concessioner and the 
Secretary regarding the valuation of leasehold surrender interests created after the Act’s 
effective date, under either a post-Act or pre-Act concessions contract, and there is nothing 
in the Act that indicates a Congressional intent that dispute resolution under the CDA be 
supplanted generally in terms of DOI concessions contracts.  

 
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13 CBCA 1305 
Decision 
For the foregoing reasons, respondent’s motion to dismiss the appeal for lack of 
subject matter jurisdiction is DENIED. 
RICHARD C. WALTERS 
Board Judge 
I concur: 
JEROME M. DRUMMOND 
Board Judge 
VERGILIO, Board Judge, concurring. 
I concur in the decision to deny the Government’s motion to dismiss for lack of 
jurisdiction. I write separately because I find that the discussion of unpersuasive or factually-
inapplicable, non-precedential decisions obfuscates the actual, concise analysis that leads to 
the result.  The Government’s motion is readily resolved after considering the contract 
(stating what the Government procured) and the Contract Disputes Act of 1978, as amended, 
41 U.S.C. §§ 601-613 (2006) (CDA) (dictating its applicability).  Similarly, I find that the 
legislation dealing with concessions contracts may be directly analyzed and considered with 
the facts before the Board.  Finally, although I agree with the majority that the claim is 
properly before the Board, our analysis differs. The majority concludes that the equivalent 
of a contracting officer’s decision is issued at a Director level without the involvement of the 
Secretary of the Interior (or designee).  I read the contract, regulations, and the decision of 
the Director (which permits further review by the Secretary) as establishing a procedure by 
which the Secretary(or designee) issues the equivalent of a contracting officer’s decision that 
may be appealed to this Board or the Court of Federal Claims. 
The Government moves to dismiss this matter for lack of jurisdiction, asserting that 
the underlying concessions contract is not subject to the CDA.  The contract specified that 
the concessions contractor (concessioner) mayconstruct and install buildings, structures, and 
other improvements in order to provide accommodations, facilities, and services for the 

          
 
  
 
  
  
 
    
  
 
   
  
 
      
   
 
      
14 CBCA 1305 
public within the Hot Springs National Park, Arkansas. The contract recognized that, to 
establish and maintain necessary facilities and services, the concessioner would have to make 
a substantial investment of capital.  Consistent with statutes, 16 U.S.C. § 20e (1988) and 16 
U.S.C. § 5954(d) (2006), legal title to all concessioner improvements vested in the United 
States.  Contract at 1, 2 (§ 2), 5-7 (§§ 4(a), (b), (d), (e), 6).  The contract required the 
concessioner to maintain and repair all facilities used in the operation.  Contract at 6 (§ 5). 
At the same time that the concessioner paid to the Government fees for privileges granted 
under the contract, and could collect fees from users of the facilities, the concessioner 
obtained a possessory interest in its improvements.  Contract at 8-14 (§§ 9, 12). 
The Government procured property, construction, maintenance, alteration, and repair. 
From the plain language of the CDA, the concessions contract is subject to the CDA.  41 
U.S.C. § 602(a).  Neither the CDA nor statutes addressing concessions contracts and the 
Department of the Interior remove this type of concessions contract from the scope of the 
CDA, which gives a contractor the right to dispute resolution before a board or the Court of 
Federal Claims.  This holding is consistent with decisions of a predecessor to this Board, e.g., 
Watch Hill Concession, Inc. , IBCA 4284, 01-1 BCA ¶ 31,298, and of the Comptroller 
General, e.g., Great South Bay Marina, Inc. , B-296335, 2005 CPD ¶ 135 (July 13, 2005) 
(recognizing that the Government may procure property or services under a concessions 
contract). Cases referenced by the Government in support of its position are not persuasive 
in their analysis in application to this case.  Because the concessions contract underlying this 
dispute is subject to the CDA, I deny the Government’s motion to dismiss. 
However, the inquiry does not stop there because of the actual dispute and applicable 
law.  Burnside-Ott Aviation Training Center v. Dalton, 107 F.3d 854, 858-59 (Fed. Cir. 
1997) (“the CDA trumps a contract provision inserted by the parties that purports to divest 
the Board of jurisdiction, unless the contract provision otherwise depriving jurisdiction is 
itself a matter of statute primacy”). An essential part of the analysis involves provisions of 
the National Park Service Concessions Management Improvement Act of 1998, 16 U.S.C. 
§§ 5951-5963 (2006) (Act). 
Under the Act, as of November 13, 1998, and regulations, the extension of an existing 
contract constituted an award of a new contract.  Thus, the parties entered into a new contract 
for 1999 and each year thereafter through 2005.  16 U.S.C. § 5952(2), (11); 36 CFR 51.5 
(1998); 36 CFR 51.23, .24 (2007). The view of the parties that there was no new award with 
each extension is incorrect.  (In resolving the motion, the Board need not determine if the 
parties violated the three-year limitation on extending contracts or any potential impact of 
such a violation.) 

   
    
   
  
   
        
 
          
 
 
       
 
 
      
 
  
 
   
   
    
 
   
 
15 CBCA 1305 
Effective on January 1, 1999, the Government awarded the concessioner a new 
contract; that is, a contract that replaced the existing contract.  Under the Act, the 
concessioner obtained a leasehold surrender interest.  The concessioner had a leasehold 
surrender interest under its contract that expired on December 31, 2005. The value of the 
existing possessory interest as of December 31, 1998, became the initial value of the 
leasehold surrender interest under the new contract.  That initial value (with necessary interim 
adjustments under 16 U.S.C. § 5954(a)) carried over to the final contract.  16 U.S.C. 
§ 5954(b)(2). 
The dispute is over the value (if any) of the concessioner’s leasehold surrender interest 
under the expired 2005 contract.  One element, or a factual predicate, of the valuation 
seemingly requires a dollar figure for the value of the concessioner’s initial interest.  To the 
extent that the parties cannot agree on that initial valuation, statute dictates that that dispute 
shall be resolved through binding arbitration.  16 U.S.C. § 5954(b).  Given the directive in 
the statute, the Board is not authorized to resolve that element of a dispute under the CDA. 
However, this limitation does not deprive the Board of jurisdiction under the CDA to 
determine the leasehold surrender interest under the expired contract, the actual dispute 
before the Board.  Burnside-Ott Aviation Training Center, Inc. v. United States , 985 F.2d 
1574, 1580-81 (Fed. Cir. 1993) (the Federal Circuit noted that the Court of Claims had 
jurisdiction when a dispute centered on the parties’ mutual contract rights and obligations, 
even though matters decided exclusively by the Department of Labor were part of the factual 
predicate to the dispute). 
The other elements of the valuation of the expired contract also are described in the 
Act.  The concessioner obtained a leasehold surrender interest in capital improvements 
constructed on and after November 13, 1998; the present value of any such interests must be 
determined.  Also, one must determine the present value of the initial interest.  The Act 
directs how to calculate the value of the leasehold surrender interest.  16 U.S.C. § 5954(a)(1), 
(3), (5). The Act does not dictate a method for resolving a dispute regarding the valuation 
of a leasehold surrender interest under an expired lease.  Accordingly, because the dispute 
arises under a contract subject to the CDA, and the Act does not divest the Board of 
jurisdiction, the concessioner may bring a case to this Board pursuant to the CDA.
1 
1 The Consolidated Appropriations Acts for Fiscal Year 2008, Pub. L. No. 110­
161, § 6 (div. F, tit. I), 121 Stat. 1844, 2107 (2007), contains a provision that is a note to 16 
U.S.C. § 5954.  The provision entrusts the Court of Federal Claims with de novo review of 
value determination decisions arising in a proceeding conducted under a concessions 
contract issued prior to November 13, 1998.  The dispute here relates to valuation under a 
new contract, arising in 1999 initially, but ultimately the value under the contract for 2005. 

 
  
 
  
  
 
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16 CBCA 1305 
This concessioner properly brought this case to this Board.  Consistent with the 
language of the Disputes clause, the concessioner submitted a written, certified claim to the 
Director, and then to the Secretary.  Department regulations specify the power of the 
Secretary and Director.  Prior to an appeal to this Board, the designee of the Secretary 
assumed the role of a contracting officer in issuing the decision denying the claim.  43 CFR 
4.5 (2007).  The concessioner filed a notice of appeal to this Board within ninety days of 
receipt of the decision of the designee of the Secretary. 
JOSEPH A. VERGILIO 
Board Judge 
Accordingly, that provision does not impact the resolution of this dispute.