MOTION TO DISMISS DENIED; SMALL BUSINESS ADMINISTRATION
AUTHORIZED TO PARTICIPATE IN LIMITED MANNER:
May 6, 2024
CBCA 7966
FEDRESULTS, INC.,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Respondent.
William A. Shook of The Law Offices of William A. Shook PLLC, Washington, DC;
and Mary Pat Buckenmeyer of Dunlap Bennett & Ludwig, Vienna, VA, counsel for
Appellant.
Brian A. Quint, Office of the Solicitor, Department of the Interior, Washington, DC;
and Robert D. Banfield, Office of the Solicitor, Department of the Interior, Vienna, VA,
counsel for Respondent.
Meagan K. Guerzon and Daniel Murphy, Office of Procurement Law, Small Business
Administration, Washington, DC, counsel for the Small Business Administration.
Before Board Judges LESTER, O’ROURKE, and CHADWICK.
LESTER, Board Judge.
Respondent, the Department of the Interior (Interior or DOI), has filed a motion to
dismiss this appeal for failure to state a claim upon which relief can be granted.  The first of


CBCA 7966 2
DOI’s two bases for dismissal is that, in its notice of appeal (which subsequently was
designated as the complaint), appellant, FedResults, Inc. (FRI), did not identify the sum
certain that it wants the Board to award, even though FRI had previously identified a sum
certain in the certified claim underlying this appeal.  DOI’s second basis for dismissal relies
on documents outside the notice of appeal and complaint, and DOI asks us to grant it limited
discovery to support its dismissal request.  Because FRI included in its certified claim a sum
certain that it was demanding to be paid, it has satisfied the Federal Acquisition Regulation
(FAR) requirement for identifying a sum certain.  Because DOI relies on documents and
information from outside FRI’s notice of appeal and complaint, DOI cannot prevail on its
second basis for dismissal for failure to state a claim and must follow the procedures required
for seeking summary judgment.  DOI’s motion to dismiss is denied.
With regard to a procedural matter, four attorneys have entered notices of appearance
as representatives of the respondent:  two attorneys from DOI’s Office of the Solicitor and
two attorneys from the Small Business Administration (SBA).  DOI, as the agency that
contracted with FRI, is the proper respondent here pursuant to the Board’s rules.  The SBA
attorneys do not represent DOI but seek to participate in this appeal to ensure that the SBA’s
interests, rather than just DOI’s, are being defended.  We reject DOI’s suggestion that the
SBA be allowed to intervene in this appeal, but we will allow the SBA to participate in the
appeal on a limited basis, subject to the coordination of its activities with DOI and the
continuing management of and control by the presiding judge.  DOI remains the party
responsible for defending this appeal.
Background
I. FRI’s Notice of Appeal and Complaint
FRI filed a notice of appeal with the Board on December 20, 2023, which the Clerk
docketed as CBCA 7966.  In that notice, FRI alleged that it had two task orders with DOI
through which FRI’s subcontractor, Granicus, LLC (Granicus), had provided software
services (through an arrangement made by DOI) to an office of the SBA.  Notice of Appeal
¶ 6.  FRI alleged that the software services that the SBA used far exceeded the authorized use
under the terms of the task orders and the associated software licensing agreement.  Id. ¶ 7. 
It identified the task orders as “Task Orders 140D0421F0121 (‘TO 0121’) and
140D0422F0146 (‘TO 0146’) under Blanket Purchase Agreement No. 140D6318A0001 (the
‘BPA’) awarded under [FRI’s] General Services Administration (‘GSA’) Contract No.
GS-35F-0256K.”  Id. ¶ 1.  FRI alleged that “[FRI] and its subcontractor Granicus
successfully performed and delivered the Software services required by the Contract and
Task Orders” and that FRI “has not reasonably been compensated based on the fair and
reasonable pricing terms of the Contract.”  Id. ¶¶ 42, 45.

CBCA 7966 3
In the notice of appeal’s prayer for relief, FRI requested “[t]he establishment of
entitlement amounts due for the actual use of the Software system acquired by the SBA under
the Contract” but did not there specify the dollar amount that it was seeking.  FRI alleged
that, on February 23, 2023, it had submitted its certified claim to a contracting officer at DOI
seeking payment for these software services and that DOI’s contracting officer issued a
decision on September 22, 2023, denying the claim.  Notice of Appeal ¶¶ 1, 5.
FRI attached to its notice of appeal a copy of its February 23, 2023, certified claim,
which showed that FRI had sought payment “in the amount of $5,700,829.51.”  Notice of
Appeal, Attachment 2b.  In attaching the contracting officer’s final decision on that claim to
the notice of appeal, however, FRI made a mistake:  it attached the wrong decision.  The
decision that it attached to the notice was dated January 4, 2023, and related to a different
claim (one that FRI had submitted in September 2022, seeking payment of $94,228.02) than
the one described in FRI’s actual notice of appeal.  Id., Attachment 1.
On January 4, 2024, having not yet recognized that it made a mistake when filing its
notice of appeal, FRI requested that the Board designate its notice of appeal as its complaint,
as permitted by Board Rule 6(c) (48 CFR 6101.6(c) (2023)).
II. The Government’s Motion to Dismiss
On February 5, 2024, DOI filed a motion to dismiss this appeal for failure to state a
claim.  DOI identified two grounds for its motion:  (1) that FRI did not in its notice of appeal
and complaint allege the sum certain that it is seeking to recover and (2) that FRI’s claim is
barred under the doctrine discussed in Severin v. United States, 99 Ct. Cl. 435 (1943) (the
Severin doctrine), because “there is no evidence that FRI owes a debt or is liable to its
subcontractor Granicus for the alleged overages.”  Respondent’s Motion to Dismiss at 3.
With regard to the sum certain issue, DOI argued that FRI did not, in its notice of
appeal, which became its complaint, specify the amount of money that it is seeking in this
appeal and that the copy of the contracting officer’s final decision that FRI attached to the
notice of appeal was not the one that it described in the notice.  Respondent’s Motion to
Dismiss at 5-7.  DOI argued that the absence of a specific monetary request in the written
portion of its notice of appeal and the confusion created by the documents attached to the
notice of appeal made it appear that FRI was seeking a declaratory judgment in this appeal
rather than a monetary award.  DOI argued that, since FRI could have but failed to set up its
appeal as one seeking monetary relief, the Board lacked jurisdiction.  Id. (citing HPM Corp.
v. Department of Energy, CBCA 7559, 23-1 BCA ¶ 38,389, and Duke University v.
Department of Health & Human Services, CBCA 5992, 18-1 BCA ¶ 36,023).

CBCA 7966 4
With regard to the Severin doctrine, DOI argued that, based on documents in the
Rule 4 appeal file that DOI had submitted to the Board but that were not contained or
referenced in FRI’s notice of appeal, “it appears that FRI and Granicus do not have an
overarching agreement that . . . require[s] that FRI . . . pay Granicus for” the costs being
sought in this appeal.  Respondent’s Motion to Dismiss at 3.  Nevertheless, to support its
Severin argument, DOI “request[ed] limited discovery regarding the nature of the
relationship between FRI and Granicus.”  Id. at 8.
III. Subsequent Briefing
On February 28, 2024, FRI filed a motion seeking leave to amend its notice of appeal
and its complaint.  In that motion, FRI represented that, when preparing its response to the
Government’s motion to dismiss, it realized that it had attached the wrong contracting
officer’s decision to the notice of appeal and complaint.  Although, in its notice of appeal,
FRI described a contracting officer’s decision dated September 22, 2023, and indicated that
the September 22 decision was attached, the actual attachment was a final decision dated
January 4, 2023, involving a different claim.
By order dated March 1, 2024, the Board granted FRI’s motion and substituted the
September 22 final decision for the January 4 decision.  In the final decision that now
accompanies the corrected version of FRI’s notice of appeal and complaint, the contracting
officer recognizes that FRI sought a total of $5,700,829.51 in its certified claim.
FRI responded to DOI’s motion to dismiss on March 4, 2024.  DOI did not file a reply
brief.
IV. The Government’s Representation in this Appeal
When FRI filed its appeal, the Clerk’s Office designated DOI, the agency that
executed the two task orders at issue here, as the respondent.  Two attorneys from DOI’s
Office of the Solicitor have entered their appearances as representatives for the respondent. 
In addition, two attorneys from the SBA’s Office of Procurement Law, Meagan K. Guerzon
and Daniel Murphy, have filed notices of appearance, stating that they are doing so “for
respondent (SBA)” or, alternatively, “on behalf of the Government . . . as co-counsel and in
addition to” DOI’s attorneys.  On April 22, 2024, DOI informed the Board that the SBA
attorneys are not authorized to represent or bind DOI but are here to “represent SBA’s own
unique interests in the matter.”  Respondent’s Representation at 1.  The SBA attorneys did
not file a motion with the Board seeking permission to participate in the appeal.

CBCA 7966 5
DOI has explained its relationship with the SBA on the two task orders at issue as
follows.  According to DOI, DOI’s Federal Consulting Group (DOI-FCG) works with
various “federal agencies to improve the services and performance they deliver to or on
behalf of the American people.”  Respondent’s Representation at 2 (quoting
https://www.doi.gov/fcg).  Separately, another part of DOI, the Interior Business Center
(DOI-IBC), “operates under a fee-for-service, full cost recovery business model, offering
Acquisition . . . systems and services to federal organizations,”
https://www.doi.gov/ibc/about-us (last visited May 2, 2024), with statutory authority to
provide cross-agency support services.  Respondent’s Representation at 2.  IBC provides
acquisition support services to FCG.  Id.
DOI has further represented that DOI-FCG and the SBA’s Office of Communication
and Public Liaison (SBA-OCPL) entered into an “Intergovernmental Reimbursable, Buy/Sell
Agreement” under which DOI-FCG, as the “provider” or “Servicing Agency,” was to obtain
digital subscription management services for SBA-OCPL, the “customer” or “Requesting
Agency.”  Respondent’s Representation at 1-2.1  Although not a signatory to that
intergovernmental agreement, DOI-IBC, in its support role for DOI-FCG, acted through its
“Acquisition Service Directorate” (AQD) to issue to FRI the two task orders for the SBA
digital subscription services at issue in this appeal.  See Appeal File, Exhibits 4, 5.  In those
task orders, the issuing office is identified as “IBC, AQD,” but the “FCG End-User” is
identified as the “Small Business Administration (SBA) Office of Communication & Public
Liaison (OCPL).”  Exhibits 4 at 1, 3-4; 5 at 1, 4.
DOI tells us that, under the intergovernmental agreement, SBA-OCPL “is generally
responsible for all costs associated with termination, disputes, and protests, including
settlement costs, except that [SBA-OCPL] shall not be responsible to [DOI] for costs
associated with actions that stem from errors in performing the responsibilities assigned to
[DOI].”  Respondent’s Representation at 3.  Further, DOI “must consult with the [SBA-
OCPL] before agreeing to a settlement or payments to ensure that [DOI] has adequate time
in which to raise or address any fiscal or budgetary concerns arising from the proposed
payment or settlement.”  Id.  As noted above, DOI-IBC is the issuing agency for the task
orders, Exhibits 4, 5, and the DOI contracting officer, rather than the SBA, received FRI’s
certified claim and issued the decision on appeal.
1 The DOI-FGC/SBA-OCPL intergovernmental agreement does not appear to
be a part of the record in this appeal.  Accordingly, we cannot confirm its contents.

CBCA 7966 6
Discussion
I. DOI’s Sum Certain Argument
Although the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109 (2018), does
not expressly require that a contractor seeking monetary relief identify the sum certain that
it is seeking, “there is no dispute that the need to state a sum certain in submitting a claim [to
the contracting officer] . . . is a mandatory rule provided for in the FAR.”  ECC International
Constructors, LLC v. Secretary of the Army, 79 F.4th 1364, 1370 (Fed. Cir. 2023); see id. at
1372 (citing FAR 2.101, 52.233-1 (48 CFR 2.101, 52.233-1)).  Here, DOI is not complaining
about a missing sum certain in FRI’s certified claim.  It could not since, in its claim, FRI
demanded payment from DOI in the sum certain of $5,700,829.51.  DOI instead complains
that FRI’s notice of appeal, which FRI has designated as its complaint, is defective
(warranting dismissal of this appeal) because FRI did not state in either the appeal notice or
the complaint the sum certain that FRI now wants the Board to award it.
To the extent that DOI believes that FRI’s initial error in attaching the wrong
contracting officer’s decision to its notice of appeal created confusion about the claim at
issue or its amount, FRI has corrected that error and eliminated that confusion through a
motion to amend, which the Board has granted.2
To the extent that DOI is complaining because FRI, in the written portion of its notice
of appeal, asked the Board to determine the “entitlement amounts due,” without expressly
stating whether it was still seeking payment of $5,700,829.51, DOI has identified no valid
basis for dismissal.  The FAR only requires that a contractor include a “sum certain” in its
claim to the contracting officer.  Essex Electro Engineers, Inc. v. United States, 960 F.2d
1576, 1580-81 (Fed. Cir. 1992); FAR 2.101.  It does not impose a similar requirement for a
notice of appeal.  See Spectrum Leasing Corp. v. General Services Administration, GSBCA
11977, et al., 93-3 BCA ¶ 26,202, at 130,428 (“We do not agree with respondent’s contention
that the current FAR definition of ‘claim’ requires the sum certain to be identified in the
2 FRI correctly described the final decision on appeal in the written portion of
its notice of appeal, and it attached the correct certified claim on appeal.  Its only error was
in attaching the wrong contracting officer’s final decision.  That is not a defect that affects
the Board’s jurisdiction to entertain this appeal under the CDA.  Although the Board’s Rules
indicate that a proper notice of appeal “should” include “[a] copy of the contracting officer’s
decision on the claim,” Rule 2(a), they do not make the omission of that attachment a defect
that precludes an effective filing.  The Board and DOI had notice of what claim was being
appealed.

CBCA 7966 7
contractor’s notice of appeal.”).  Whether a board has authority to entertain an appeal in a
CDA case “is determined by the adequacy or sufficiency of the submissions to the
contracting officer, and not by the nature of the notice of appeal or complaint submitted to
the Board.”  Bath Iron Works, ASBCA 32770, 88-1 BCA ¶ 20,438, at 103,358 (1987).
II. DOI’s Severin Argument
Under the Severin doctrine, a prime contractor submitting a pass-through claim on
behalf of its subcontractor can recover from the Government the damages that the
subcontractor incurred “only when the prime contractor has reimbursed its subcontractor for
the latter’s damages or remains liable [to the subcontractor] for such reimbursement in the
future.  These are the only ways in which the damages of the subcontractor can become, in
turn, the damages of the prime contractor, for which recovery may be had against the
Government.”  J.L. Simmons Co. v. United States, 304 F.2d 886, 888 (Ct. Cl. 1962).  That
being said, “[t]he Severin doctrine can only bar the prime contractor’s pass-through suit
against the government if the government first asserts at trial, and then proves, that the prime
contractor is not liable to the subcontractor for the costs in suit.”  E.R. Mitchell Construction
Co. v. Danzig, 175 F.3d 1369, 1371 (Fed. Cir. 1999).
DOI alleges in its motion to dismiss that “there is no evidence that FRI owes a debt
or is liable to its subcontractor Granicus for the alleged overages.”  Respondent’s Motion to
Dismiss at 3.  Referencing an email in the Rule 4 appeal file that FRI sent to a DOI-IBC
representative in February 2023, DOI argues that “it appears that FRI and Granicus do not
have an overarching agreement” that would require FRI to pay Granicus for overage uses and
that, when DOI previously attempted to obtain more definitive information from FRI about
its agreements with Granicus, FRI responded in a manner that DOI interprets as meaning that
FRI has no contractual obligation to pay Granicus the damages being sought.  Id. at 3-4
(citing Exhibit 13).  DOI also infers from Granicus’s original attempt to submit its claim
directly to the DOI contracting officer, rather than through FRI, that Granicus has no
subcontractor relationship with FRI.  Id. at 4.
DOI has identified no basis for dismissal for failure to state a claim.  “In deciding such
motions, the Board looks to Rule 12(b)(6) of the Federal Rules of Civil Procedure for
guidance.”  Board Rule 8(e).  “The Rule 12(b)(6) motion addresses itself solely to the
question of whether the complaint fails to state a claim”—that is, it “only tests whether the
claim has been adequately stated in the complaint.”  5B Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure § 1356, at 369, 372 (3d ed. 2004); see 5C Charles
Alan Wright & Arthur R. Miller, supra, § 1366, at 148 (a Rule 12(b)(6) motion “challenges
the pleader’s failure to state a claim properly”).  In reviewing such a motion, the tribunal’s
“inquiry essentially is limited to the content of the complaint.”  5B Charles Alan Wright &

CBCA 7966 8
Arthur R. Miller, supra, § 1356, at 372.  DOI’s motion does not focus on FRI’s complaint
or its notice of appeal.  To the contrary, in seeking to dismiss this appeal, DOI ignores the
allegations in FRI’s notice of appeal and complaint, in which FRI alleges that Granicus is its
subcontractor.  Notice of Appeal ¶¶ 6, 33.  Instead, to support its dismissal request, DOI asks
the Board to consider evidence outside of FRI’s notice of appeal and complaint, evidence that
DOI has included in the Rule 4 appeal file.
“If, on a motion under Rule 12(b)(6) . . . , matters outside the pleadings are presented
to and not excluded by the [tribunal], the motion must be treated as one for summary
judgment.”  Fed. R. Civ. P. 12(d).  Yet, “[c]onversion of a motion [to dismiss] into one for
summary judgment should only occur after the parties have been offered a ‘reasonable
opportunity’ to present pertinent summary judgment materials.”  Rubert-Torres v. Hospital
San Pablo, Inc., 205 F.3d 472, 475 (1st Cir. 2000).  “[C]ourts have disfavored conversion
when,” as in this case, “‘the motion comes quickly after the complaint was filed [or]
discovery is in its infancy and the nonmovant is limited in obtaining and submitting evidence
to counter the motion.’”  Easter v. United States, 575 F.3d 1332, 1336 (Fed. Cir. 2009)
(quoting Rubert-Torres, 205 F.3d at 475).  Here, the parties have not yet even proposed a
discovery schedule in response to the Board’s initial procedures order, much less commenced
discovery.  We deny DOI’s motion to dismiss, without prejudice to its right to raise its
Severin concerns in a summary judgment motion (accompanied by proposed findings of
uncontroverted fact) if, following discovery, it believes that its Severin concerns are factually
and legally supportable.
III. The SBA’s Participation in this Appeal
DOI is the proper respondent in this appeal.  The two task orders at issue here are
between FRI and DOI; FRI submitted its certified claim to the DOI contracting officer; and
the DOI contracting officer issued the final decision on that claim, which is now on appeal. 
The contracting officer’s final decision provides the jurisdictional basis for a CDA appeal,
Case, Inc. v. United States, 88 F.3d 1004, 1008-09 (Fed. Cir. 1996), and Board Rule 1(b)
designates “the government agency whose decision, action, or inaction” provides that
jurisdictional basis as the “respondent” in the appeal.  See Raj K. Patel v. Executive Office
of the President, CBCA 7419, 22-1 BCA ¶ 38,150, at 185,288 (applying Rule 1(b) to identify
appropriate respondent), aff’d, No. 2022-1962, 2022 WL 3711886 (Fed. Cir. Aug. 29, 2022). 
In this case, in accordance with standard practice, two attorneys from DOI have entered
appearances to represent DOI in this appeal.
In addition to the attorneys from DOI, two attorneys for the SBA filed a notice of
appearance in which they identified themselves as counsel “for respondent (SBA)” or,
alternatively, “the Government.”  The SBA’s reference to “respondent (SBA)” is incorrect

CBCA 7966 9
because, pursuant to Board Rule 1(b), DOI is the sole respondent here.  See CSI Aviation,
Inc. v. General Services Administration, CBCA 6543, 20-1 BCA ¶ 37,542, at 182,308
(denying motion from Immigration and Customs Enforcement to intervene in an appeal as
a second respondent where the decision on appeal was made by the General Services
Administration (GSA)).  FRI’s claim was submitted to DOI, not the SBA, and there is no
SBA contracting officer’s decision on appeal.  Further, DOI has informed us that the SBA
attorneys have no authority to bind DOI and are not representing DOI’s interests in this
appeal, making it clear that the SBA attorneys do not and realistically cannot represent the
actual “respondent.”
Nevertheless, from a practical standpoint, it will assist the development of this appeal
to have SBA representatives involved in it.  Other boards, including at least one of our
predecessor boards, have in the past exercised their discretion to allow attorneys from a
non-respondent agency to appear, in a limited manner, in appeals in which their agencies
might have a pecuniary interest.  See, e.g., Heritage Reporting Corp., GSBCA 10396, 92-1
BCA ¶ 24,677, at 123,121 (1991) (Department of Justice attorneys appearing on behalf of
several non-respondent agencies, separately from respondent GSA attorneys); Do-Well
Machine Shop, Inc., ASBCA 34565, et al., 99-1 BCA ¶ 30,320, at 149,938 (attorney for the
SBA appearing separately from respondent Department of the Air Force).  We exercise our
discretion to allow the SBA attorneys to “participate in the proceedings, but not with the
status of a party intervenor,” with the SBA’s participation to be “conducted in conjunction
with the party in privity.”  S. Powell Construction Co., AGBCA 2004-122-1, 04-2 BCA
¶ 32,725, at 161,888.  DOI, as “[t]he party in privity, however, remains ultimately responsible
for . . . defending . . . the claim.”  Id.  “The details regarding the participation, and any
limitations thereon, will fall within the reasonable discretion of the presiding judge, who is
tasked with managing the appeal.”  Id.
In the future, we anticipate that the SBA, to the extent that it wishes to participate in
an appeal before the Board in which it is not the respondent, will file a motion with the Board
seeking leave to participate rather than simply filing its attorneys’ notices of appearance.
Decision
For the foregoing reasons, DOI’s motion to dismiss this appeal for failure to state a
claim is DENIED.  The SBA will be allowed to participate in this appeal through its
representatives and receive notice of filings in the appeal but must coordinate its activities 

CBCA 7966 10
with DOI and remains subject to the presiding judge’s continuing management of its
involvement in the appeal.
    Harold D. Lester, Jr.      
HAROLD D. LESTER, JR.
Board Judge
We concur:
   Kathleen J. O’Rourke          Kyle Chadwick               
KATHLEEN J. O’ROURKE KYLE CHADWICK
Board Judge Board Judge