MOTION TO INTERVENE DENIED: March 10, 2020
CBCA 6543
CSI AVIATION, INC.,
Appellant,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
Jason N. Workmaster, Abigail T. Stokes, and Caroline J. Watson of Miller &
Chevalier Chartered, Washington, DC, counsel for Appellant.
Sarah Park, Office of General Counsel, General Services Administration, Washington,
DC, counsel for Respondent.
Before Board Judges DRUMMOND, KULLBERG, and CHADWICK.
CHADWICK, Board Judge.
This appeal concerns task orders placed under a General Services Administration
(GSA) schedule contract.  The contractor submitted a certified claim to the GSA schedule
contracting officer and appealed from a deemed denial.  The ordering agency, a component
of the Department of Homeland Security (DHS), moves “to intervene as a respondent”
alongside GSA, arguing that it “has a financial and legal interest in” the outcome.  We deny
the motion because the real party in interest on the government side is already before us. 
That party is the United States.  GSA is the respondent named under the Board’s Rules to
speak for the United States.  We need not add a second respondent.


CBCA 6543 2
Background
We need not say much about the underlying dispute to describe the context of the
motion to intervene.  The appellant, CSI Aviation, Inc. (CSI), sells air transportation services
to government agencies under a GSA schedule contract.  From 2014 to 2018, CSI provided
charter flights to Immigration and Customs Enforcement (ICE) under five task orders that
ICE placed under the schedule contract.
In April 2019, CSI submitted a certified claim to the ICE contracting officer for a sum
certain of flight cancellation fees but specifically asked him to “immediately refer the claim
to CSI’s GSA Schedule contracting officer,” pursuant to Federal Acquisition Regulation
8.406-6(b) (48 CFR 8.406-6(b) (2018)) (an ordering activity “shall refer all disputes that
relate to the contract terms and conditions to the schedule contracting officer”).  CSI
identified the GSA contracting officer in its claim and sent him a copy of the claim.  In June
2019, having had no response from GSA, CSI filed this appeal from a deemed denial of its
claim under 41 U.S.C. § 7103(f)(5) (2012).  Counsel for GSA have litigated the case,
including filing an opposition to a pending motion by CSI for partial summary judgment. 
The GSA contracting officer also issued a decision denying the claim in September 2019.
In November 2019, ICE, through a DHS lawyer who did not file a notice of
appearance under Board Rule 5(b) (48 CFR 6101.5(b) (2019)), moved “to intervene as of
right or by permission to assert defenses against CSI’s contract claims.”  ICE relies, by
analogy, on Rule 24 of the Federal Rules of Civil Procedure and on the parallel rule of the
United States Court of Federal Claims.  See Board Rule 1(c) (“The Board may apply
principles of the Federal Rules of Civil Procedure to resolve issues not covered by [our]
rules.”).  ICE argues primarily that it “is the real party in interest as it is ICE’s task orders and
CSI’s performance thereof that provide the backdrop for the chain of events in dispute,” that
“ICE’s legal and financial interests may be at variance with GSA’s interests,” and that “this
matter . . . could impact other pending matters before the Board, for which ICE is the named
respondent.”  CSI opposes ICE’s intervention.  GSA does not.
Discussion
Federal government contracts are contracts with the Federal Government, not with one
agency.  See 41 U.S.C. § 7101(7) (“contractor” in the Contract Disputes Act (CDA) “means
a party to a Federal Government contract other than the Federal Government”); Texas Health
Choice, L.C. v. Office of Personnel Management, 400 F.3d 895, 899 (Fed. Cir. 2005) (“[T]he
CDA sets forth the process for resolving claims by a contractor against the United States
relating to a contract[.]”); Bank of America, National Ass’n v. Department of Housing &
Urban Development, CBCA 5571, 18-1 BCA ¶ 36,927, at 179,889 (2017) (“[T]he claim

CBCA 6543 3
before us under the [agency] contract is ultimately against the United States, not against [an
agency].”).  In the contracting officer’s signature block on a standard procurement contract
are the words, “United States of America.”  This means what it says.  Liability under such
government contracts lies with the United States.  See 31 U.S.C. § 1304(a)(c)(3) (awards
against the Government by boards of contract appeals are payable from the Department of
the Treasury’s permanent indefinite judgment fund); 41 U.S.C. § 7104(b)(1); 28 U.S.C.
§ 1491(a) (in lieu of appealing a denial of a CDA claim to a board, a contractor may sue in
the Court of Federal Claims, which can enter judgments “based . . . upon any express or
implied contract with the United States”).
“The Board’s ministerial practice of docketing CDA appeals naming agencies as the
respondents does not affect the underlying government contracts.”  CSI Aviation, Inc. 
v. Department of Homeland Security, CBCA 6581, et al. (Feb. 21, 2020).  A contractor that
performs a task order placed under the Federal Supply Schedule (FSS) has two operative
contracts: the schedule contract and the order contract.  See Kingdomware Technologies, Inc.
v. United States, 136 S. Ct. 1969, 1978 (2016) (“An FSS order creates mutually binding
obligations: for the contractor, to supply certain goods or services, and for the Government,
to pay.  The placement of the order creates a new contract; the underlying FSS contract gives
the Government the option to buy, but it does not require the Government to make a purchase
or expend funds.”).  These two contracts may be awarded at different times by different
agencies, but fundamentally, the schedule contractor has a unified contractual relationship
with “the Government” of the United States.  Id.
When a CDA claim for money comes before the Board, we need only possess
jurisdiction to make a “monetary award” on the claim.  41 U.S.C. § 7108(b).  We define a
“respondent” as “the government agency whose decision, action, or inaction is the subject
of [the] appeal.”  Rule 1(b).  We must be satisfied that we have a proper respondent only
because we must ensure that the responsible contracting officer had an opportunity to decide
the claim.  See Sharp Electronics Corp. v. McHugh, 707 F.3d 1367, 1373–74 (Fed. Cir.
2013); see also 41 U.S.C. § 7105(e)(1)(B) (establishing our “jurisdiction to decide any appeal
from a decision of a contracting officer of” most civilian agencies “relative to a contract
made by that agency”).  Exactly which agency may ultimately pay a CDA award is not our
concern.  As one of our predecessor boards explained in a closely related context almost four
decades ago, “If the Government is in breach of its contract, and if the ‘cognizant’ board of
contract appeals so holds, who ultimately foots the bill is a matter between the agencies who
are pointing fingers at each other, not for the Board.”  S & W Tire Services, Inc., GSBCA
6376, 82-2 BCA ¶ 16,048, at 79,615 (adding that agencies are free to “do battle over which
must reimburse” the judgment fund after an award is paid from that appropriation);
see Business Management Research Associates, Inc. v. General Services Administration,

CBCA 6543 4
CBCA 464, 07-1 BCA ¶ 33,486, at 165,989 (full Board) (“[T]he holdings of our predecessor
boards shall be binding as precedent in this Board.”).
We therefore deny ICE’s motion to “intervene” because ICE is not a new party and
cannot, by definition, have interests “at variance” to those of the Federal Government.  If ICE
is dissatisfied with GSA’s conduct as the respondent, or if ICE wishes to aid GSA in the
case, ICE may communicate such concerns to GSA, not to us.  We need not decide whether
to apply Rule 24 of the Federal Rules of Civil Procedure here by analogy.
ICE notes that one judge of our Board ruled in resolving a discovery dispute that a
GSA lawyer had no attorney-client relationship with a separate agency, the Social Security
Administration, for purposes of invoking the attorney-client privilege, as “an attorney who
is employed by a government agency does not represent another agency when he or she
appears before the Board.”  LFH, LLC v. General Services Administration, CBCA 395, 08-2
BCA 33,915, at 167,820 (single-judge order).  We would not necessarily view the LFH order
as binding on us, see Rule 1(d) (“Only panel and full Board decisions are precedential.”), but
in any event, we do not read it as contradicting the ample authority cited above for the
proposition that a respondent agency appears before us on behalf of and in the interests of
the United States and not of the agency alone. 
ICE also raises several arguments to suggest that the GSA contracting officer lacked
authority to decide CSI’s claim.  We note that the GSA contracting officer did not agree in
his September 2019 decision.  He interpreted the schedule contract, applying its order of
precedence clause.  At this time, we do not doubt that CSI properly presented the claim to
GSA because the claim “requires interpretation of the schedule contract’s terms and
provisions.”  Sharp Electronics, 707 F.3d at 1374.  Should doubts arise about our
jurisdiction, we will take them up with CSI and GSA.
Decision
ICE’s motion to intervene is DENIED.
     Kyle Chadwick               
KYLE CHADWICK
Board Judge

CBCA 6543 5
We concur:
  Jerome M. Drummond       H. Chuck Kullberg         
JEROME M. DRUMMOND H. CHUCK KULLBERG
Board Judge Board Judge