DISMISSED FOR LACK OF JURISDICTION: February 28, 2020
CBCA 6600
RASHID EL MALIK,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Rashid El Malik, pro se, Palos Verdes Estate, CA.
Laetitia Coleman and Mary A. Mitchell, Office of General Counsel, Department of
Veterans Affairs, Houston, TX, counsel for Respondent.
Before Board Judges SOMERS (Chair), GOODMAN, and LESTER.
SOMERS, Board Judge.
Mr. Rashid El Malik, a self-represented litigant, seeks to enforce a contract between
the Department of Veterans Affairs (VA) and Moderno, Inc. (Moderno), based upon his
status as a third-party beneficiary.1  During a status conference, we raised the issue of
whether appellant could bring this action as a third-party beneficiary under the Contract
1 Mr. El Malik requests that the contractor be required to fully perform the
contract, that the VA provide him a time line for completion, that the VA pay him for costs
allegedly resulting from contractor or Government caused delay, and that appellant be paid
attorney fees incurred for the preparation of his claim. 

CBCA 6600 2
Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2012).  At our request, the parties submitted
position papers with supporting arguments.  After considering the arguments presented, we
conclude that we lack jurisdiction to entertain Mr. El Malik’s claim.  Accordingly, we
dismiss the claim.  
Background2
Under statute and regulations, the VA provides grants to service disabled veterans
intended to improve their quality of life and enable them to live independently in their own
homes.  See, e.g., 38 U.S.C. § 3120 (“Program of independent living services and
assistance”).  These programs provide independent living services and assistance in various
geographic regions of the United States “to a veteran who has a serious employment
handicap resulting in substantial part from a service-connected disability.”  The VA contracts
for these services.  
Mr. El Malik is the direct beneficiary of this program.  Mr. El Malik received two
grants, one in 2014, and the second in 2017, to rehabilitate his home.  After the first
contractor failed to complete the work, the VA agreed to seek a new contractor to finish the
work.  Once Mr. El Malik’s grants had been depleted, in order to complete the work, the VA
entered him into a different VA program, which required that he sign a rehabilitation plan.
He did so on September 11, 2017.  The document setting out the rehabilitation plan required: 
The Veteran will meet all VA regulations, and provide regular reports of
progress to the Case Manager . . . . There will be no modifications to the
contract.  The Veteran may not pay for or request upgraded materials, nor
change the configuration of the project.  Delays of the process by the Veteran
may lead to discontinuance of services.   
To implement the rehabilitation plan, the VA issued a solicitation seeking a contractor
to perform work “to improve the Appellant’s living conditions and allow safe emergency
egress to and from the home.”  Moderno submitted a proposal and received the contract
award on May 30, 2018.  The contract included a performance work statement (PWS)
detailing the planned modifications to Mr. El Malik’s residence.  The VA’s contracting
officer and Moderno’s representative signed the contract.  Mr. El Malik did not sign the
contract.  
2 We draw these facts primarily from appellant’s claim, notice of appeal, brief,
and the exhibits appended to his brief.   We note that Cheryl E. Adams, Esq., prepared Mr.
El Malik’s claim, which was submitted to the contracting officer on June 18, 2019.     

CBCA 6600 3
In his amended claim, Mr. El Malik alleges that the contract work has been poorly
performed, and he provides numerous examples of the problems he has encountered as a
result.  Mr. El Malik asserts that he has made many attempts to get the Government to
enforce the contract, to no avail.  Mr. El Malik argues that because he is the intended
beneficiary of the contract, he is entitled to enforce it before this Board.  When the
contracting officer failed to issue a final decision, Mr. El Malik appealed to us on a “deemed
denial” basis.     
Discussion
We find that we do not possess jurisdiction to hear Mr. El Malik’s claim.  The CDA
sets forth the Board’s jurisdiction to entertain appeals involving contract disputes.  See Jane
Mobley Associates, Inc. v. General Services Administration, CBCA 2878, 16-1
BCA¶ 36,209, at 176,676 (“The CDA delineates the bounds of the Board’s jurisdiction over
contract disputes. . . .”).  Contract jurisdiction in the boards of contract appeals derives from,
and is limited to claims that arise under, the CDA.  Maxima Corp., EBCA C-0206354, et al.,
2003 WL 21254235 (May 12, 2003).  “Jurisdiction is a threshold matter, and where the
Board lacks subject matter jurisdiction, [it] may not proceed to decide the merits of the case.” 
ARI University Heights, LP v. General Services Administration, CBCA 4660, 15-1 BCA
¶ 36,085, at 176,185.  
Only  a “contractor” may appeal a contracting officer’s decision.  41 U.S.C. § 7104(a). 
The CDA defines a contractor as any party to a federal government contract other than the
Federal Government.  Id., § 7107(7).  This waiver of sovereign immunity must be strictly
construed, Winter v. Floorpro, Inc., 570 F.3d 1367, 1370 (Fed. Cir. 2009), and those who are
not in privity of contract with the Government cannot avail themselves of the CDA
provisions and appeal to the Board.  “This includes subcontractors” and others that are third-
party beneficiaries of the prime contract.  Id. at 1371-72. 
Mr. El Malik is not a contractor nor did he sign the contract.  However, Mr. El Malik
signed a rehabilitation plan as part of the program that set forth certain requirements, such
as requiring him to provide regular progress reports of the work performed to the case
manager.  This, he argues, demonstrates that he is the intended beneficiary of the contract. 
No one disputes that Mr. El Malik will benefit from the work performed under the
contract, and, as such, could be considered a third party beneficiary.  A “third-party
beneficiary” is “[a] person who, though not a party to a contract, stands to benefit from the
contract’s performance.”  Black’s Law Dictionary 165 (8th ed. 2004), quoted in Floorpro,
570 F.3d at 1371-72.  Even so, being a third-party beneficiary does not equate to being a

CBCA 6600 4
contractor.  As we stated above, under the CDA, only a contractor may appeal a contracting
officer’s decision to a board of contract appeals.  
This is not to say that a third-party beneficiary of a federal procurement contract lacks
any recourse against the Government.  Although such third-party beneficiaries cannot seek
recourse under the CDA, they may be able to utilize their third-party beneficiary status to
seek damages in the Court of Federal Claims under the Tucker Act, 28 U.S.C. § 1491.  The
Tucker Act provides the Court of Federal Claims with jurisdiction to “render judgment upon
any claim against the United States founded . . . upon any express or implied contract with
the United States.”  28 U.S.C. § 1491(a)(1).  Third-party beneficiaries of federal procurement
contracts have been allowed to pursue their claims against the Government in that court
under the auspices of the Tucker Act.  See Floorpro, 570 F.3d at 1372 (interpreting a prior
Federal Circuit decision, D&H Distributing Co. v. United States, 102 F.3d 542 (Fed. Cir.
1996), as basing jurisdiction of a third-party beneficiary claim in the Court of Federal Claims
on the Tucker Act, not the CDA). 
 We conclude, therefore, that even with reasonable inferences drawn in Mr. El Malik’s
favor, the evidence does not “support a facially ‘plausible’ claim to relief.”  TranBen, Ltd.
v. Department of Transportation, CBCA 5448, 17-1 BCA ¶ 36,635, at 178,429 (quoting
Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir. 2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 557 (2007))).  
Decision
For these reasons, we DISMISS the appeal for LACK OF JURISDICTION.
    Jeri Kaylene Somers       
JERI KAYLENE SOMERS
Board Judge
We concur: 
    Allan H. Goodman            Harold D. Lester, Jr.      
ALLAN H. GOODMAN HAROLD D. LESTER, JR.
Board Judge Board Judge