DISMISSED FOR LACK OF JURISDICTION: June 30, 2009 
CBCA 1388 
EDWARD W. SCOTT ELECTRIC CO., INC., 
Appellant, 
v. 
DEPARTMENT OF VETERANS AFFAIRS, 
Respondent. 
Barry Nelson, Chief Estimator of Edward W. Scott Electric Co., Inc., San Francisco, 
CA, appearing for Appellant. 
Stacey North Willis, Charlma J. Quarles, and Phillipa L. Anderson, Office of the 
General Counsel, Department of Veterans Affairs, Washington, DC, counsel for Respondent. 
Before Board Judges DANIELS  (Chairman), STERN , and HYATT . 
DANIELS , Board Judge. 
The Department of Veterans Affairs (VA) awarded to S. J. Amoroso Construction 
Co., Inc. (Amoroso) a contract for construction at the VA Medical Center in San Francisco, 
California.  Amoroso subcontracted the electrical work for this project to Edward W. Scott 
Electric Co., Inc. (Scott). 
Scott believes that the contract permitted installation of HCF (health care facility) 
cable for the branch lighting and power circuits, and Scott intended to install this kind of 
cable for those purposes. VA directed Scott to install EMT (electrical metallic tubing) cable 
instead of HCF cable, and Scott complied. Scott sent to Amoroso a claim for the additional 

      
 
   
    
   
 
 
 
  
 
 
 
      
    
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costs resulting from this direction. After attempting without success to negotiate with VA 
a resolution of the matter, Amoroso submitted a certified claim to the agency’s contracting 
officer.  The contracting officer denied the claim on the ground that the contract requires 
installation of EMT cable for the purposes at issue. Scott then filed with this Board an 
appeal of the contracting officer’s decision. 
The Board noted that the appeal was filed by a subcontractor, not a contractor, and 
ordered the appellant to show cause why the case should not be dismissed for lack of 
jurisdiction.  No response was filed. 
Discussion 
The Contract Disputes Act of 1978 (CDA) permits a “contractor” to appeal a 
contracting officer’s decision to the appropriate board of contract appeals. 41 U.S.C. § 606 
(2006).  “[T]he term ‘contractor,’” as used in this Act, “means a party to a Government 
contract other than the Government.”  Id. § 601(4).  Scott was not a contractor to VA in this 
instance; it was a subcontractor to Amoroso, the party to the contract other than the 
Government.  
As the Court of Appeals for the Federal Circuit has recently reiterated, a waiver of 
sovereign immunity, such as is contained in the Contract Disputes Act, must be strictly 
construed in favor of the sovereign.  Winter v. Floorpro, Inc. , No. 2008-1407, slip op. at 6 
(Fed. Cir. June 26, 2009) (citing Orff v. United States , 545 U.S. 596, 601-02 (2005), and 
Cosmic Construction Co. v. United States , 697 F.2d 1389, 1390 (Fed. Cir. 1982)). 
Consequently, “those who are not in privity of contract with the government cannot avail 
themselves of the CDA’s appeal provisions.”  Winter , slip op. at 6; see also id.  at 8.  A 
subcontractor is considered to be in privity of contract with the Government only when the 
prime contractor is acting, per its contract, as the Government’s agent.  Id. at 7 n.3 (citing 
United States v. Johnson Controls, Inc. , 713 F.2d 1541, 1551 (Fed. Cir. 1983)). 
Because this appeal was filed by Scott, a subcontractor, and the contract between 
Amoroso, the prime contractor, and VA did not make Amoroso VA’s agent, the Board has 
no jurisdiction to consider the case. 
We note that after the appeal was filed, Amoroso wrote to the Board, “[Amoroso] is 
hereby authorizing [the Scott] notice of appeal.”  This letter was filed 127 days after 
Amoroso received the contracting officer’s decision. Even if Amoroso’s letter is deemed to 
be a constructive sponsorship of the appeal, it was filed too late to vest jurisdiction in the 
Board.  An appeal which is filed more than ninety days after the date of a contractor’s receipt 

 
 
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of a contracting officer’s decision must be dismissed.  Cosmic Construction, 697 F.2d at 
1390 (citing 41 U.S.C. § 606). 
Decision 
The appeal is DISMISSED FOR LACK OF JURISDICTION . 
_________________________ 
STEPHEN M. DANIELS 
Board Judge 
We concur: 
_________________________ _________________________ 
JAMES L. STERN CATHERINE B. HYATT 
Board Judge Board Judge