RESPONDENT’S MOTION TO DISMISS
FOR LACK OF JURISDICTION DENIED:  June 8, 2026
CBCA 8448
SANALIL CONSTRUCTION, INC.,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Respondent.
Timothy J. Turner and Jonathan Perrone of Centre Law & Consulting, Tysons, VA,
counsel for Appellant.
Brian A. Quint, Office of the Solicitor, Department of the Interior, Washington, DC;
and Paul Sax, Office of the Solicitor, Department of the Interior, Lakewood, CO, counsel for
Respondent.
Before Board Judges KULLBERG, ZISCHKAU, and O’ROURKE.
KULLBERG, Board Judge.
Respondent, the Department of the Interior (DOI), has filed a motion to dismiss this
appeal for lack of jurisdiction.  DOI contends that appellant, Sanalil Construction, Inc. (SCI),
did not appeal the contracting officer’s final decision (COFD) denying SCI’s first claim for
increased material and labor costs incurred while performing a contract for the National Park
Service (NPS), a bureau within DOI.  Instead, SCI submitted a second claim for the same
increased material and labor costs, alleging new grounds for recovery.  The contracting
officer (CO) rejected the new grounds asserted in SCI’s second claim and declined to


CBCA 8448 2
reconsider the denial of SCI’s first claim.  SCI appealed the second COFD to the Board. 
DOI filed a motion to dismiss the appeal as untimely because the first COFD, which SCI did
not appeal, was final and precluded SCI from appealing the denial of its second claim for the
same increased costs.  SCI contends that this appeal alleges different grounds for recovery
than those asserted in its first claim.  For the reasons stated below, DOI’s motion is denied.
Background
On September 17, 2020, NPS awarded contract 140P2020C0072 (contract) to SCI for
the repair or replacement of building roofs in the Everglades National Park damaged by
Hurricane Irma.  Exhibit 2 at 1.1  The contract performance period was 365 days, and the
total value of the awarded contract was $3,401,876.67.  Id. at 1, 6.  Through a series of
contract modifications, P00001 through P00005, the CO extended, for excusable delay, the
period of performance to February 24, 2023, and increased the contract value to
$3,937,310.06.  Id. at 668-82.
By email dated July 25, 2024, SCI submitted to the CO a certified claim in the amount
of $610,186.54 for increased costs incurred under the contract (first claim).2  Exhibit 5
at 1, 5.  SCI stated the following:
[SCI] bid on the project, received the contract award, and undertook
performance in good faith.  However, the procurement process occurred during
the early stages of the Covid-19 outbreak.  At the time [SCI] submitted its bid,
the extraordinary, once-in-a-lifetime impact of the pandemic on the supply
chain and materials costs remained unforeseen.  For example, supply chain
issues and unprecedented global shortages in materials due to Covid-19 saw
an increase in materials costs of more than 200% in many categories.  Due to
the pandemic, the Agency extended the Contract performance date and then
instructed [SCI] to submit a claim after the close of the Contract for costs it
absorbed due to unforeseen materials and labor costs caused by the pandemic.
Id. at 6.  In addition, SCI contended that “[w]ithout a proportionally reasonable increase in
price, the original Contract would [have been] impracticable.”  Id. at 6.  Although SCI
1 All exhibits are in the appeal file, unless otherwise noted.  The page numbers
cited are those imprinted by respondent.
2 On July 16, 2024, SCI initially submitted its claim without a certification of the
claim or exhibits.  Exhibit 5 at 3-4.  DOI received the exhibits on July 18, 2024, and the
signed certification of the claim on July 25, 2024.  Id. at 1-3.

CBCA 8448 3
alleged that it could have ceased performing the contract, it completed contract performance
in reliance on the CO’s instruction “to complete contract performance and then to file this
subject claim.”  Id. at 8.  SCI sought payment of $610,186.54 as a result of its increased
costs.  Id.
On August 21, 2024, the CO issued the first COFD, forwarded by email on that same
date, denying SCI’s first claim.  Exhibit 4.3  The CO noted in the first COFD that the contract
was a “Firm-Fixed Price contract, which means the price is not subject to any adjustment on
the basis of the contractor’s cost experience in performing the contract.”  Id. at 2. 
Additionally, the CO noted in the COFD that the contract had “no contractual clause that
would allow the [CO] to adjust the price for material escalations.”  Id. at 3.  With regard to
SCI’s assertion in its claim that the COVID-19 pandemic caused an increase in costs, the first
COFD stated that “[n]o additional details [were] provided as to how cost increases related
to the COVID-19 pandemic were unforeseen and could not have been known at the time of
contract award, which occurred 6 months after the COVID-19 pandemic began.”  Id.  Finally,
the CO in the first COFD found no merit in SCI’s contention that contract performance was
impractical because SCI completed the contract “after receiving no-cost time extensions
under the excusable delay clause.”  Id.  The first COFD advised SCI of its right to appeal
either to the “agency board of contract appeals” within ninety days of receipt of the decision
or the United States Court of Federal Claims within twelve months of receipt of the decision. 
Id. at 4.  The first COFD also provided the address and website for the Civilian Board of
Contract Appeals (CBCA).  Id.  SCI did not appeal the first COFD.
On January 2, 2025, SCI submitted to the CO a claim in the amount of $610,186.54
(second claim).  Exhibit 3 at 1.  SCI presented several grounds for relief, including: 
(1) “NPS Acted in Bad Faith when it Induced [SCI] to Work Under False Promises of
Equitable Adjustment”; (2) “NPS has Breached the Contract’s Implied Duty of Good Faith
and Fair Dealing”; and (3) “[t]he Agency Changed the Contract When it Ordered [SCI] to
Work on the Contract Despite Unprecedented Increases in the Labor and Material Costs.” 
Id. at 5-7.  Additionally, SCI stated:
[The COR] made multiple promises to pay [SCI] its COVID-19-related costs
although only upon project completion, promises that were echoed by [the CO]
when he assured [SCI] that funds would be set aside to appropriately
compensate [SCI] for its losses.  In reasonable reliance on those promises,
3 The heading on the first page of the COFD shows a date of August 2, 2024, but
the CO’s digital signature is dated August 21, 2024.  Exhibit 4 at 2, 5.  One of the attorneys
who signed SCI’s claim was also a recipient of the August 21, 2024, email.

CBCA 8448 4
[SCI] completed its work on the project.  When [SCI] sought to enforce the
COR’s promises, NPS summarily declined any adjustment to the Contract
price, determining that [SCI] bore the full risk of labor and material cost
increases.  This determination was contrary to the promises made by [the COR
and CO].  Thus, NPS personnel made promises they never intended to keep. 
False promises of contract price modification designed only to induce [SCI’s]
continued performance are bad faith Contract administration.
Id. at 6.
On March 6, 2025, the CO issued a decision denying SCI’s second claim (second
COFD).  Exhibit 1.  In the second COFD, the CO advised SCI that the first COFD “was final
and is not being reconsidered,” and SCI’s constructive change theory was “based on the same
facts alleged in the previous claim.”  Id. at 3.  The CO also stated in the second COFD that
“[t]his [second] final decision only addresses the arguments based on the newly alleged
operative fact that NPS ‘induced [SCI] to work under false promises of equitable
adjustment.’”  Id. at 4.  The CO denied SCI’s allegation that the CO or COR promised to
increase the contract price and stated that even if such a promise had been made, “the result
was merely that [SCI] performed the contract in accordance with its terms.”  Id.
SCI appealed the second COFD to the Board, and SCI filed a complaint and amended
complaint.  In lieu of filing a responsive pleading, DOI filed a motion to dismiss the appeal
for lack of jurisdiction.  SCI filed an opposition to DOI’s motion to dismiss (Appellant’s
Opposition), DOI filed a reply to SCI’s response (Respondent’s Reply), and SCI filed a
response to DOI’s reply (Appellant’s Surresponse).4
Discussion
At issue is whether SCI has appealed the denial of a claim that is time-barred or the
denial of a new claim.  DOI argues that SCI failed to appeal the first COFD, which became
“final and conclusive,” and SCI “now seeks to appeal its time-barred claim(s) and obtain the
same relief by asserting alternative or ‘new’ legal theories based on the same operative
facts.”  Respondent’s Motion to Dismiss at 1-2.  DOI also argues that SCI’s “constructive
changes and breach inducement/misrepresentation theories are not based on new facts or
conduct, but rather reframes the same factual narrative already considered and denied.” 
4 A surresponse is “[a] second response by someone who opposes a motion.” 
Surresponse, Black’s Law Dictionary (12th ed. 2024).

CBCA 8448 5
Respondent’s Reply at 9-10.  For that reason, “the CBCA cannot fashion any remedy without
impermissibly disturbing the finality of the August 2024 COFD.”  Id. at 16.
In opposition to DOI’s motion, SCI argues that “[t]he First Claim relies on a breach
of contract defense (i.e., commercial impracticality), while the Second Claim raises three
affirmative claims for relief:  bad faith contract administration, breach of the duty of good
faith and fair dealing, and constructive change.”  Appellant’s Opposition at 7.  In addition,
SCI distinguishes between its first and second claims in that “the Second Claim’s allegations
of bad faith, breach of the implied duty of good faith and fair dealing, and constructive
change, focus on what the Agency said and did, not COVID-19-related market impacts.” 
Appellant’s Surresponse at 5.
The Contract Disputes Act provides that “[a] contractor, within 90 days from the date
of receipt of a contracting officer’s decision . . . , may appeal the decision to an agency
board.”  41 U.S.C. § 7104(a) (2024).  If a contractor does not bring a timely appeal, “[t]he
contracting officer’s decision on a claim is final and conclusive and is not subject to review
by any forum, tribunal, or Federal Government agency.”  Id. § 7103(g).  The Board has
recognized the following:
[A]n “appellant’s failure to file its notice of appeal within ninety days
following its receipt of the contracting officer’s final decision is a
jurisdictional defect that precludes us from entertaining the appeal.”  RAKS
Fire Sprinkler, LLC v. General Services Administration, CBCA 6095,
18-1 BCA ¶ 37,122, at 180,676 (citing Cosmic Construction Co. v. United
States, 697 F.2d 1389, 1390 (Fed. Cir. 1982)).  “The ninety day deadline is
thus part of a statute waiving sovereign immunity, which must be strictly
construed.”  Cosmic Construction Co., 697 F.2d at 1390.
Outside the Box, LLC v. General Services Administration, CBCA 8335, 25-1 BCA ¶ 38,854,
at 189,053.  “Once the Board determines that it lacks jurisdiction to hear an appeal, it can
only dismiss the appeal, and it does not reach the merits of the appeal.”  Id. (citing MINACT,
Inc. v. Department of Labor, CBCA 7575, 23-1 BCA ¶ 38,243, at 185,701 (2022)).
DOI contends that SCI’s second claim only “reframes” its first claim, but SCI argues
that the first and second claims are distinct.  It is well established that “we should treat
requests as involving separate claims if they either request different remedies (whether
monetary or non-monetary) or assert grounds that are materially different from each other
factually or legally.”  K-Con Building Systems, Inc. v. United States, 778 F.3d 1000, 1005
(Fed. Cir. 2015).  The Board has distinguished a new claim from a reiteration of an old claim
as follows:

CBCA 8448 6
The established test for what constitutes a “new” claim is whether “claims are
based on a common or related set of operative facts.  If the court will have to
review the same or related evidence to make its decision, then only one claim
exists.”  Environmental Safety Consultants, Inc., ASBCA 54995, 06-1 BCA
¶ 33,230, at 164,666 ([quoting] Placeway Construction Corp. v. United States,
920 F.2d 903, 907 (Fed. Cir. 1990)).
Kenneth W. Battley v. Social Security Administration, CBCA 1063, 08-2 BCA ¶ 33,896, at
167,768.  As the Board has stated, “[t]he introduction of additional facts that do not alter the
nature of the original claim, a dollar increase in the amount claimed, or the assertion of a new
legal theory of recovery, when based on the same operative facts as included in the original
claim, do not constitute new claims.”  JRS Management v. Department of Justice, CBCA
3053, 13-1 BCA ¶ 35,235, at 172,996 (citing Trepte Construction Co., ASBCA 38555, 90-1
BCA ¶ 22,595, at 113,385-86). 
In light of the above discussion, the Board’s inquiry turns to whether SCI has
presented a new claim in this appeal.  Such an inquiry requires an examination of the
operative facts and legal theories presented in both the first and second claims and whether
the second claim is materially different either factually or legally from the first claim.  SCI
has asserted materially different facts and legal theories in its second claim insofar as it has
alleged that it was induced to continue contract performance with promises of compensation
for its increased costs.  Although DOI argues that the first COFD has determined with
finality those questions of whether SCI was induced to continue contract performance, the
Board does not find such to be the case because the first claim made no such allegations. 
The Board cannot, as DOI has urged, simply dispose of SCI’s appeal by concluding that SCI
“performed the contract in accordance with its terms.”  At this stage of the proceedings, the
Board can make no determination as to the credibility of SCI’s allegations which DOI
disputes, and the resolution of such a dispute requires further proceedings.
Decision
Respondent’s motion to dismiss is DENIED.
    H. Chuck Kullberg         
H. CHUCK KULLBERG
Board Judge

CBCA 8448 7
We concur:
   Jonathan D. Zischkau      Kathleen J. O’Rourke    
JONATHAN D. ZISCHKAU KATHLEEN J. O’ROURKE
Board Judge Board Judge