DISMISSED FOR LACK OF JURISDICTION: May 22, 2020
CBCA 6768
DELTA STATE UNIVERSITY,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Respondent.
Jane L. Mapp, Office of the Attorney General, State of Mississippi, Jackson, MS,
counsel for Appellant.
Pawandeep Bhandari and Thomas Sutton, Office of General Counsel, Federal Bureau
of Prisons, Department of Justice, Washington, DC, counsel for Respondent.
Before Board Judges DRUMMOND, KULLBERG, and SULLIVAN.
SULLIVAN, Board Judge.
Delta State University (DSU) appeals the decision of the contracting officer for the
Department of Justice, Bureau of Prisons (BOP), denying a claim for payment pursuant to
the terms of a memorandum of understanding. Because the Board lacks jurisdiction to decide
this appeal, we dismiss it without prejudice.
Background
DSU entered in a memorandum of understanding (MOU) with the Federal
Correctional Complex, Yazoo City, Mississippi, in June 2018, titled “The Yazoo City Project


CBCA 6768 2
- Center for Social Justice and Civil Engagement (CSJCE).” Pursuant to the MOU, a
professor within the CSJCE at DSU was to fulfill certain program goals, including
“enhanc[ing] student academic success” by “provid[ing] material support to the school
district.” DSU, through its efforts, was also to “encourage students to consider future
employment at the Federal Complex at Yazoo City,” the only goal that mentioned the Federal
Government. DSU and BOP had entered into similar arrangements for seventeen years,
through which the Yazoo City School District and DSU worked together to “prepare students
to continue their academic work in colleges and universities, to sharpen their employable
skills, and to provide as good a candidate for federal service as possible.”
To fulfill these goals, DSU was to interview individuals in local parishes and consult
with the high school to determine the needed technology and supplies to be purchased for
students. In exchange for these efforts, BOP would pay invoices submitted by DSU. The
work was to be conducted between May and September 2018.
In May 2019, DSU submitted a claim to the BOP contracting officer for $86,490.06,
after BOP refused to pay its invoices. In December 2019, the contracting officer denied the
claim, asserting that the person who signed the MOU lacked authority so there was no valid
contract. The contracting officer stated that DSU could appeal the decision to the Board or
the U.S. Court of Federal Claims.
Upon docketing, the Board sua sponte issued an order for DSU to show cause why
the appeal should not be dismissed for lack of jurisdiction because the MOU did not appear
to be a procurement contract necessary for the Board to exercise jurisdiction.
Discussion
Upon review of the notice of appeal and supporting documentation provided by DSU,
it appears that the Board may not properly exercise jurisdiction over this matter. “Subject
matter jurisdiction is a threshold matter involving a tribunal’s ‘power to hear a case,’ and a
tribunal must dismiss a case over which it lacks jurisdiction.”McAllen Hospitals LP v.
Department of Veterans Affairs, CBCA 2774, et al., 14-1 BCA ¶ 35,758 (quoting Arbaugh
v. Y&H Corp., 546 U.S. 500, 514 (2006)). DSU bears the burden to establish jurisdiction.
Omni Pinnacle, LLC v. Department of Agriculture, CBCA 2452, 14-1 BCA ¶ 35,538.
The Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2018), is the statute that
provides the boards of contract appeals, including this one, jurisdiction to decide disputes
arising under certain Federal Government contracts. The Board’s jurisdiction under the CDA
is limited, however, to disputes arising under procurement contracts, that is, contracts made
by an executive agency for “(1) the procurement of property, other than real property in

CBCA 6768 3
being; (2) the procurement of services; (3) the procurement of construction, alteration, repair,
or maintenance of real property; or (4) the disposal of personal property.” 41 U.S.C.
§ 7102(a). “Procurement’ is ‘the acquisition by purchase, lease or barter, of property or
services for the direct benefit or use of the Federal Government.”Wesleyan Co. v. Harvey,
454 F.3d 1375, 1378 (Fed. Cir. 2006). “The CDA does not apply to contracts which are
basically grants or sociological type contracts designed to accomplish the Government’s
social policy goals.”Devin Richardson v. Department of Justice, CBCA 5559, 18-1 BCA
¶ 37,018.
Here, while the agreement described a benefit to the Federal Government, that
benefit—preparing students to be future federal employees—was an indirect benefit to BOP.
Through the MOU, DSU provided direct benefits to the students of the Yazoo City School
District by identifying and meeting their technology needs.See, e.g, Omni Pinnacle(finding
no contract because local municipality received benefit of the dredging services provided by
contractor, rather than the federal agency funding efforts); Montana Human Rights
Commission, HUD BCA 90-5305-C8, 91-2 BCA ¶ 23,993 (financial and training assistance
provided to state housing authority provided indirect benefit of information sharing). The
future potential hiring by BOP is not the procurement of a good or service to fulfill a current
requirement for BOP. See, e.g., St. Bernard Parish Government v. United States, 134 Fed.
Cl. 730, 736 (2017) (agreement between federal agency and local municipality akin to a
cooperative agreement because federal government received “generalized benefit” of reduced
future flooding). While DSU notes in its response to the show cause order that the agreement
involves the exchange of services for money, nothing in DSU’s response or the MOU shows
how these services are for the direct benefit of BOP.
In its response, DSU highlights language from the MOU that describes the
“contractual relationship” between the parties that has existed for seventeen years. DSU
asserts that this language shows the mutual intent to form a binding contract. Although the
MOU may have elements that make it a contract, not all contracts fall within the ambit of the
CDA. Thermalon Industries, Ltd. v. United States, 51 Fed. Cl. 464, 470-71 (2002) (citing
Busby School of Northern Cheyenne Tribe v. United States , 8 Cl. Ct. 596, 600 (1985).
Moreover, the MOU appears to be a cooperative agreement, which is the proper vehicle
when “the principal purpose . . . is to transfer a thing of value to the State, local government,
or other recipient to carry out a public purpose of support or stimulation authorized by law
of the United States instead of acquiring (by purchase, lease, or barter) property or services
for the direct benefit or use by the United States Government . . . .” Federal Grant and
Cooperative Agreement Act, 31 U.S.C. § 6305. The Board lacks jurisdiction to consider
appeals arising from cooperative agreements or similar non-procurement agreements.Omni
Pinnacle.

CBCA 6768 4
Finally, neither the fact that the contracting officer issued a decision on DSU’s claim
nor the fact that, in that decision, the contracting officer directed DSU to file its appeal with
the Board can confer jurisdiction upon the Board. Insurance Corp. of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 701-02 (1982) (jurisdiction defined by
statute, not by actions of parties); Comsat General Corp. , DOT CAB 1226, 83-2 BCA
¶ 16,870 (contracting officer’s final decision “not conclusive as to the existence of a contract
or a right to appeal”).
Decision
The appeal is DISMISSED FOR LACK OF JURISDICTION.
Marian E. Sullivan
MARIAN E. SULLIVAN
Board Judge
We concur:
Jerome M. Drummond H. Chuck Kullberg
JEROME M. DRUMMOND H. CHUCK KULLBERG
Board Judge Board Judge