DISMISSED FOR FAILURE TO STATE A CLAIM: June 4, 2018
CBCA 6055
SERVITODO LLC, 
Appellant,
v.
 
SMALL BUSINESS ADMINISTRATION,
Respondent.
William J. Acuff, Management Officer of ServiTodo LLC, Chuckey, TN, appearing
for Appellant.
Meagan K. Guerzon, Office of General Counsel, Small Business Administration,
Washington, DC, counsel for Respondent.
Before Board Judges SOMERS (Chair), HYATT, and O’ROURKE.
SOMERS, Board Judge.
ServiTodo LLC (ServiTodo) received four contracts under section 8(a) of the Small
Business Act, 15 U.S.C. § 637(a) (2012), through a partnership arrangement between the
Department of Health and Human Services (HHS) and the Small Business Administration
(SBA).  HHS sought services; SBA arranged for ServiTodo to perform the services. 
ServiTodo filed multiple appeals claiming that HHS breached these contracts.  After
receiving $1,150,000 under a settlement agreement to resolve those appeals, ServiTodo,
believing that it had underestimated the total amount of damages, filed another claim against
HHS.  When we determined that the settlement agreement barred recovery of additional
damages from HHS, see ServiTodo v. Department of Health and Human Services, CBCA


CBCA 6055 2
5524, 17-1 BCA ¶ 36,672, Servitodo filed an identical claim against SBA.  This is the claim
before us.  
SBA has filed a motion to dismiss for failure to state a claim because appellant
entered into a global settlement agreement that released all claims under the contracts at issue
here.  For the reasons set forth below, we grant the motion. 
Background
I.  SBA 8(a) Program 
In October 2012, SBA entered into a partnership agreement with HHS.  This
arrangement arose under section 8(a) of the Small Business Act, 15 U.S.C. § 637(a), which
authorizes SBA to enter into procurement contracts with other federal agencies and to
subcontract performance of these contracts to socially and economically disadvantaged small
businesses. See Pub. L. No. 85–536, § 8(a), 72 Stat. 384, 389 (1958) (codified as amended
at 15 U.S.C. § 637(a) (2012)).1  The agreement states, among other things, that SBA
delegates to the U.S. Department of Health and Human Services for re-
delegation to all warranted U.S. Department of Health and Human Services’
contracting officers its authority under section 8(a)(1)(A) of the Act to enter
into 8(a) prime contracts, and its authority under section 8(a)(1)(B) of the Act
to arrange for the performance of such procurement contracts by eligible 8(a)
Participants.  In accordance with 13 CFR 123.501(a), SBA delegates its 8(a)
contract execution function.  SBA remains the prime contractor on all 8(a)
contracts and the 8(a) Participant remains the SBA’s subcontractor.  
The agreement also provides that HHS’s contracting officer may “make direct award of a
contract to the 8(a) Participant, but only after the requirement has been offered to and
accepted by the SBA.”    
In accordance with the regulations, HHS submitted “offering letters” to SBA seeking
administrative, professional, and managerial consulting services to be performed at HHS’s
1 SBA assigns requirement numbers to contracts for tracking purposes after SBA
has accepted a procuring agency’s requirement into the 8(a) program.  Here, contract no.
200-200-2011-39879 is tracked by requirement no. 0405-11-103744.  Contract no. 200-
2011-41281 is tracked by requirement no. 0405-11-103876.  These requirements are not
separate contracts.   

CBCA 6055 3
Center for Disease Control and Prevention (CDC).2  SBA accepted the offers “on behalf of
ServiTodo, LLC.”  HHS subsequently awarded several contracts to ServiTodo (contract nos.
200-2011-412181, 200-2011-39879, 200-2012-M-51078, and 200-2011-F-38848).  
II. ServiTodo’s Previous Appeals
Before filing the current appeal, ServiTodo filed eight appeals (CBCA 4777, 4820,
4910, 4911, 4933, 4979, 5065, and 5524) related to claims arising from one or all of the four
contracts awarded to ServiTodo.  HHS and ServiTodo settled the first seven appeals.3  The
settlement agreement, dated March 3, 2016, provided in pertinent part:
3.  ServiTodo LLC agrees that this Settlement Agreement is a complete and
final settlement of all present and pending requests for equitable adjustment,
claims, and CBCA Appeals . . . and all future requests for equitable
adjustments, claims, CBCA appeals, actions in the Court of Federal Claims,
and any other forum, related in any way to Contract Nos. 200-2011-412181,
200-2011-39879, 200-2012-M-51078 and 200-2011-F-38848.  
4.  ServiTodo LLC agrees that this Settlement Agreement operates as a complete
Contractor Release of any and all claims against HHS, CDC, and its Agents, Officers,
and Employees, pertaining in any way to Contract Nos. 200-2011-412181, 200-2011-
39879, 200-2012-M-51078 and 200-2011-F-38848.  
The Government paid ServiTodo the sum of $1,150,000, in settlement.  
   
In CBCA 5524, ServiTodo’s eighth appeal, appellant sought additional damages
totalling $10,691,408.94.  ServiTodo claimed that the settlement agreement did not bar
recovery of these additional damages, because the agreement did not contemplate the
contractor’s indirect costs and profit rates.  Notwithstanding, the Board denied CBCA 5524
because the “clear and unambiguous language in the settlement agreement encompass[ed]
2 An agency submits an “offering letter” to SBA defining the work to be
performed.  13 CFR 124.502(c) (2017).  SBA accepts the proposal into the 8(a) program for
award to an 8(a) small business.  Id. 124.504.  SBA delegates contract administration for
these 8(a) contracts, either through the use of special clauses in the 8(a) contract documents,
or by a separate agreement with the procuring activity.  Id. 124.51. 
3  The settlement agreement, referenced in the complaint and answer, became
part of the public record when it was subsequently filed with the Board as an attachment to
the motion to dismiss in ServiTodo, 17-1 BCA at 178,563, 178,571 n.3.   

CBCA 6055 4
the claim” that was the subject of the appeal, and therefore released the claim.  ServiTodo
LLC, 17-1 BCA at 178,571.
 
After investigating possible other avenues of appeal, ServiTodo filed a certified claim
with the SBA on December 28, 2017, seeking the same amount of damages, $10,691,408.94,
that it had sought in CBCA 5524.  ServiTodo’s theory is that, notwithstanding the settlement
with HHS, SBA remains liable for these alleged breaches.  ServiTodo contends that while
the partnership agreement with HHS delegates much of its 8(a) contract administration
duties to HHS, “it does not allocate the risks of events or circumstances that occur during
the performance of 8(a) contracts from SBA to HHS, nor is appellant a party to the
partnership agreement.” 
When SBA did not issue a decision, ServiTodo appealed on a “deemed denied” basis.
Discussion
We grant the motion to dismiss because we conclude that the facts alleged in the
complaint, with reasonable inferences drawn in ServiTodo’s favor, do not “support a facially
‘plausible’ claim to relief.”  TranBen, Ltd. v. Department of Transporation, 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))).   
As noted above, the parties entered into a global settlement agreement after
participating in alternative dispute resolution proceedings with a Board judge serving as an
ADR neutral.  The settlement agreement identified the same four contracts at issue in this
case.  The agreement served as “a complete contractor release of any and all claims against
HHS, CDC, and its agents, officers, and employees, pertaining in any way to [the CDC
contracts].”  Upon presentation of the executed agreement, the Board entered judgment on
April 1, 2016, dismissing the appeals with prejudice.  See ServiTodo LLC, 17-1 BCA at
178,564.   
In Information Systems & Networks Corp. v. United States, 68 Fed. Cl. 336 (2005),
a case not unlike this, the court examined a settlement agreement between the procuring
agency and an 8(a) contractor.  The settlement agreement provided for the release of “any
and all claims and any other matters arising under or related to the prime contract.”  Id. at
344.  The Government argued that the release language barred the contractor from filing a
second action against SBA under the same contracts.  The court agreed.  Describing the
relationship between SBA, the contracting agency, and the 8(a) contractor, the court stated: 

CBCA 6055 5
It is critical to recognize that SBA’s role in the section 8(a) program is not that
of an actual contractor, but instead, as a provider of “technical and managerial
support to a section 8(a) contractor in the performance of a subcontract.” 
Harris Systems [International, Inc. v. United States], 5 Cl. Ct. [253,] at 256
(citing 15 U.S.C. § 637(a)(7)).  Indeed, “in all . . . contracts funneled through
the SBA, the work [is] to be performed by the nominal subcontract, which, for
all practical purposes, [is] the real contractor.”  Brother’s Cleaning Serv., Inc.
v. United States, 38 Fed. Cl. 106, 107 (1997).  
68 Fed. Cl. at 345.  The court continued:  
The nominal prime contracting parties are the SBA and the [procuring agency]. 
It is well-understood, however, that the real party in interest in a Section 8(a)
contract is the minority small business.  The regulations make this clear.
Id. (citations omitted).  The court concluded that the settlement agreement barred the
contractor from filing a separate action against SBA.  We reach the same conclusion here. 
ServiTodo argues that the partnership agreement, which states that SBA remains the
prime contractor on all 8(a) contract awards, entitles ServiTodo to bring a claim directly
against SBA.  We disagree.  The existence of the partnership agreement does not make SBA
the real party in interest.  Courts and boards examining similar circumstances have uniformly
found that the “tripartite” contracts require that the 8(a) contractor file contract claims with
the procuring agency, not SBA, which acts in a “mentorial or consultative” capacity.  See
Philadelphia Regent Builders v. United States, 634 F.2d 569, 573 (Ct. Cl. 1980) (holding the
Veterans Administration properly terminated the 8(a) contractor, the court noted that “the
SBA did not intend to, nor did it establish the administrative organization for invoking the
default clause itself”); Decorama Painting, Inc., ASBCA 25299, 81-1 BCA ¶ 14,992 (SBA
acts as agent to bring agency and 8(a) contractor together); Small Business Administration
(Mills Enterprises, Inc), AGBCA 76-165, 77-2 BCA ¶ 12,657 (discusses the unique
relationship between SBA, the contracting agency, and the 8(a) contractor); R&R
Construction Co., VABCA 1101, 74-2 BCA ¶ 10,857, at 51,633 (in 8(a) contract
arrangement, “SBA is contemplated as acting only in a mentorial or consultative capacity,
without responsibility for or participation in the actual administration of the contract”).  

CBCA 6055 6
Here, SBA acted as an agent, bringing the agency and the 8(a) contractor together.4 
The settlement agreement expressly “operate[d] as a complete Contractor Release of any and
all claims against HHS, CDC, and its Agents, Officers, and Employees.”  We find that the
settlement agreement between ServiTodo and HHS released all claims arising under the CDC
contracts, including any potential claims against SBA.     
III. No Jurisdiction To Extend 8(a) Certification
On the final page of its claim, ServiTodo requests “that the SBA be ordered to extend
its certification for the 8(a) program for an amount of time equal to that between the
publication of the false and derogatory CPARS performance data and its correction in March
2016.”  SBA has not addressed this request in its motions.  
Nonetheless, we note that under the CDA, we do not have the authority to grant
injunctive relief or order specific performance.  See YRT Enterprises LLC v. Department of
Justice, CBCA 5701, 17-1 BCA ¶ 36,809, at 179-405-06; Eyak Technology, LLC v.
Department of Homeland Security, CBCA 1975, 10-2 BCA ¶ 34,538, at 170,340 (“The
Board does not have jurisdiction to order specific performance or grant injunctive relief.”). 
We cannot order the agency to take the action requested.  
4  Nor can ServiTodo enforce the partnership agreement as a third party
beneficiary.  “In order to prove third party beneficiary status, a party must demonstrate that
the contract not only reflects the express or implied intention to benefit the party, but that it
reflects an intention to benefit the party directly.”  Glass v. United States, 258 F.3d 1349,
1354 (Fed. Cir. 2001).  The partnership agreement does not identify ServiTodo by name, nor
does it reflect an intention to benefit ServiTodo directly.  

CBCA 6055 7
Decision
SBA’s motion to dismiss for failure to state a claim is granted and the appeal is
DISMISSED.5 
Jeri Kaylene Somers 
JERI KAYLENE SOMERS
Board Judge
We concur:  
Catherine B. Hyatt Kathleen J. O’Rourke 
CATHERINE B. HYATT KATHLEEN J. O’ROURKE
Board Judge Board Judge
5 SBA also moves to dismiss for lack of jurisdiction on the grounds that “SBA
is not the appropriate respondent for ServiTodo’s appeal because: (1) SBA did not award,
fund, or administer any of the contracts at issue; and (2) SBA did not provide an SBA
Contracting Officer’s (CO) final decision regarding this claim.”  We decline to decide these
issues here.  “While we are generally obligated to resolve jurisdictional challenges first,
Supreme Court precedent only requires federal courts to answer questions concerning their
Article III jurisdiction—not necessarily their statutory jurisdiction—before reaching other
dispositive issues.  Minesen Co. v. McHugh, 671 F.3d 1332, 1337 (Fed. Cir. 2012) (citing
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 95-97 (1998)).  Although the
question as to whether we possess jurisdiction to entertain claims against the SBA under
these circumstances is legitimate, we “‘reserve [this potentially] difficult question[] of . . .
jurisdiction when the case alternatively could be resolved on the merits in favor of the same
party.’”  Id. (quoting Steel Co., 523 U.S. at 111).