DISMISSED FOR LACK OF JURISDICTION: September 19, 2012 
CBCA 2770 
EAGLE PEAK ROCK & PAVING, INC., 
Appellant, 
v. 
DEPARTMENT OF THE INTERIOR, 
Respondent. 
Michael W. Jansen of Law Offices of Michael W. Jansen, Woodland, CA, counsel for 
Appellant. 
Carolyn A. Lown, Office of the Solicitor, Department of the Interior, San Francisco, 
CA, counsel for Respondent. 
Before Board Judges BORWICK , SHERIDAN , and ZISCHKAU . 
SHERIDAN , Board Judge. 
Appellant, Eagle Peak Rock & Paving, Inc. (Eagle Peak), is a subcontractor which 
furnished supplies used in the performance of a prime contract between the Department of 
the Interior, National Park Service (NPS), and Sunland Industries, LLC (Sunland). Eagle 
Peak, alleging that Sunland did not pay it for the supplies it provided, now seeks 
compensation directly from NPS under the theory that Eagle Peak is a third-party beneficiary 
of the contract between NPS and Sunland. 
Briefing was required from the parties on the issue of whether the Civilian Board of 
Contract Appeals (CBCA) has jurisdiction to decide this matter. The appellant took the 
position that the CBCA has jurisdiction to hear the appeal, while the respondent argued that 
the CBCA lacks jurisdiction. 

 
           
               
          
              
     
               
            
             
               
             
               
         
             
                
       
             
             
 
                
       
      
              
              
              
             
         
           
            
2 CBCA 2770 
Background 
In September 2009, NPS and Sunland entered into contract P8410090037 for the 
supply of 9700 tons of gravel to be used by NPS employees on roads within the Lava Beds 
National Monument, California. Sunland subsequently contracted with Eagle Peak, an 
aggregate rock supplier, to provide the gravel. The gravel was delivered and NPS paid 
Sunland for the gravel. 
On October 13, 2011, alleging that Sunland failed to pay it for the gravel it delivered, 
Eagle Peak sought $233,650.38 directly from NPS. While styled as “Contractor’s Claim 
Against the United States of America,” the document did not indicate the statutory authority 
under which the claim was brought. The NPS contracting officer treated the matter as a 
claim brought pursuant to Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (Supp. IV 
2011), and on December 15, 2011, denied the claim in total, asserting that Eagle Peak was 
not a party to the contract between NPS and Sunland.
1 
Discussion 
It undisputed that NPS had an express contract with Sunland to provide gravel and 
that Eagle Peak supplied the gravel. Sunland was fully paid by NPS and it released NPS 
from any further obligation under the express contract. 
The Board’s jurisdiction is derived from the CDA, which is a waiver of sovereign 
immunity that must be strictly construed. Cosmic Construction Co. v. United States , 697 
F.2d 1389, 1390 (Fed. Cir. 1982).  The CDA permits a “contractor” to appeal a contracting 
officer’s decision to the appropriate board of contract appeals. 41 U.S.C. § 7104. The term 
“contractor” is defined as “a party to a Federal Government contract other than the Federal 
Government.” 41 U.S.C. § 7101(7). 
The Court of Appeals for the Federal Circuit, our appellate authority, has held that the 
waiver of sovereign immunity contained in the CDA must be strictly construed in favor of 
the sovereign. Winter v. Floorpro , Inc., 570 F.3d 1367, 1370 (Fed. Cir. 2009). 
Consequently, “those who are not in privity of contract with the government cannot avail 
themselves of the CDA’s appeal provisions.” Id. at 1370. 
1 It also appears that the document did not contain the certification language 
required by the CDA for claims over $100,000. 41 U.S.C. § 7103(b). 

 
             
           
             
      
             
              
      
      
             
             
                  
         
               
              
                
                
    
            
            
              
               
             
        
                                                          
  
 
3 CBCA 2770 
The requisite privity of contract needed to permit an appeal under the CDA has 
generally been limited to prime contractors who have actually contracted with the 
Government. Attempts by other parties, such as subcontractors and sureties, to extend the 
concept of privity beyond the prime contractor have typically been rejected. See Floorpro , 
570 F.3d at 1372-73; Admiralty Construction, Inc. v. Dalton , 156 F.3d 1217, 1220-21 (Fed. 
Cir. 1998); United States v. Johnson Controls, Inc. , 713 F.2d 1541, 1551 (Fed. Cir. 1983); 
Cosmic Construction , 697 F.2d at 1390; 
Wackenhut International, Inc. v. Department of 
State, CBCA 1235, 09-2 BCA ¶ 34,255 ; Edward W. Scott Electric Co. v. Department of 
Veterans Affairs, CBCA 1388, 09-2 BCA ¶ 34,181. 
Eagle Peak argues that exceptions exist to the rule requiring privity of contract in 
appeals made pursuant to the CDA for situations “where a third-party beneficiary theory can 
be proven or when there is an implied contract.” While Eagle Peak has not alleged that it had 
an implied-in-fact contract with NPS, Eagle Peak has alleged third-party beneficiary status 
in the NPS contract. The citations Eagle Peak references for the proposition that it should 
be allowed to bring this action as a third-party beneficiary are inapplicable here because those 
cases were brought pursuant to the Tucker Act, 28 U.S.C. § 1491(a)(1) (2006). As noted in 
Floorpro , the Tucker Act has a broader grant of jurisdiction than the CDA. 570 F.3d at 
1372.  According to the Federal Circuit in Floorpro , “the Tucker Act’s privity requirement 
is separate and distinct from the CDA’s statutory requirement that only ‘contractors’ may 
appeal to agency boards of contract appeals,” and therefore, the “third-party beneficiary 
subcontractor” was not a “contractor” within the meaning of the CDA. Id. at 1372-73. 
Eagle Peak was not a “contractor” within the meaning of the CDA in the contract NPS 
had with Sunland. As such, we have no jurisdiction to address this matter. 
Decision 
CBCA 2770 is DISMISSED FOR LACK OF JURISDICTION . 
PATRICIA J. SHERIDAN 
Board Judge 

 
 
                                                                                                                
    
  
4 CBCA 2770 
We concur: 
ANTHONY S. BORWICK JONATHAN D. ZISCHKAU 
Board Judge Board Judge