MOTIONS TO DISMISS FOR LACK OF JURISDICTION AND
FOR SUMMARY JUDGMENT DENIED:  March 3, 2023
CBCA 7597
ALARES CONSTRUCTION, INC.,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Douglas L. Patin and Lee-Ann Brown of Bradley Arant Boult Cummings LLP,
Washington, DC, counsel for Appellant.
Jennifer L. Hedge, Office of General Counsel, Department of Veterans Affairs,
Pittsburgh, PA; and Kathleen Ramos, Office of General Counsel, Department of Veterans
Affairs, Arlington, TX, counsel for Respondent.
Before Board Judges RUSSELL, DRUMMOND, and ZISCHKAU.
DRUMMOND, Board Judge.
Respondent, the Department of Veterans Affairs (VA), filed a motion to dismiss for
lack of jurisdiction or, alternatively, a motion for summary judgment.  The VA alleges the
Board lacks jurisdiction to decide the claim because the claim lacks a sum certain and
because appellant, Alares Construction, Inc. (Alares), released its claim when it signed its
final release of claims.  We find that there is a sum certain stated in the claim and that there
remains an issue of material fact as to whether appellant released its claim when it signed its
final release of claims.


CBCA 7597 2
Procedural Background
Alares was awarded contract VA241-16-C-0037 (the contract) by the VA in April
2016.  The contract required Alares to relocate the Intensive Care Unit at the Providence VA
Medical Center.  Appeal File (CBCA 6149, et al.), Exhibit 1.1  In CBCA 6149, et al., Alares
filed a “claim supplement” or “claim addendum” in which “Alares added facts, allegations,
and new legal theories.”  Complaint (CBCA 7597) at 15-16.  The Board refused to add the
addendum to the claim in that consolidated appeal because it was a new claim, meaning it
contained new legal theories which had not received a contracting officer’s final decision. 
See Alares Construction, Inc. v. Department of Veterans Affairs, CBCA 6149, et al., 22-1
BCA ¶ 38,225.  Alares responded by voluntarily dismissing three claims—CBCA 6396,
7082, and 7083—and presenting a claim addendum to the contracting officer.  See
Appellant’s Voluntary Motion to Dismiss (CBCA 6149, et al.); Appeal File (CBCA 7597),
Exhibit 27.  The contracting officer subsequently denied the claim addendum.  See Appeal
File (CBCA 7597), Exhibit 28.  Alares promptly appealed that denial to the Board, which
was docketed as CBCA 7597.
Sum Certain
The VA argues that the Board does not have jurisdiction because (1) Alares failed to
submit a claim that includes a valid sum certain, (2) the submission included two other
amounts previously certified as a sum certain, and (3) the present claim duplicates many of
the facts and issues presented in CBCA 6149, et al.  Under the Contract Disputes Act (CDA),
41 U.S.C. §§ 7101-7109 (2018), there must be both a valid claim and a contracting officer’s
final decision on that claim in order for the Board to hear an appeal and to proceed to the
merits of the case.  Sage Acquisitions, LLC v. Department of Housing & Urban Development,
CBCA 6631, 22-1 BCA ¶ 38,031, at 184,693 (2021).
A claim is not defined in the CDA, but the Board has adopted the definition located
in the Federal Acquisition Regulation (FAR).  See Sage Acquisitions, 22-1 BCA at 184,693
(citing 48 CFR 2.101 (2021) (FAR 2.101)).  The FAR definition of a claim requires, among
other things, “a sum certain.”  FAR 2.101.  “[T]he sum certain requirement demands a fixed
amount be stated in the claim.”  Sage Acquisitions, 22-1 BCA at 184,694 (quoting ARI
University Heights, LP v. General Services Administration, CBCA 4660, 15-1 BCA ¶ 36,085
at 176,186).
1 Multiple appeals concerning this contract are pending before the Board.  For
clarity, all citations to the record reference the applicable CBCA docket number.

CBCA 7597 3
The VA cites to Sage Acquisitions as a similar case to the present but misconstrues
the Board’s holding.  In Sage Acquisitions, the Board dismissed the case for lack of
jurisdiction because the number held out to be a sum certain was not anywhere in the
documentation.  It was instead the sum of two separate numbers, one of which was an
estimate, and thus the total was not a sum certain.  Sage Acquisitions, 22-1 BCA at 184,695. 
Here, Alares stated in its claim a fixed number as its sum certain—$1,679,495.60.  Appeal
File (CBCA 7597), Exhibit 27 at 1, 47.
The VA correctly asserts that Alares also included the claim addendum and Capital
Project Management, Inc. report as attachments to its claim in CBCA 6149, et al.  It is also
accurate that those documents had calculations that listed a sum certain of $1,657,353.24 and
$1,673,926.77.  However, a plain reading of the claim shows that Alares included the claim
addendum and rebuttal report for the facts and information enclosed within, not as a
demonstration of the sum certain.  Alares explicitly stated in its letter to the contracting
officer that Alares “rel[ies] upon the information enclosed within the [claim] addendum” but
that “Exhibit 2 to this letter revises slightly the amount claimed to $1,679,495.60.”  Appeal
File (CBCA 7597), Exhibit 27 at 1.
The VA is also correct that this claim duplicates many of the facts and issues present
in CBCA 6149, et al., as Alares itself states that the claim addendum “added facts,
allegations, and new legal theories” to the extended general conditions claim (the basis of
CBCA 6149).  Complaint (CBCA 7597) at 15-16.  This claim also acts, therefore, to cure the
jurisdictional issues that were present in the claim addendum when it was filed as part of
CBCA 6149, et al.  We conclude that there is a claim with a sum certain stated in the amount
of $1,679,495.60, and that the VA’s motion to dismiss for lack of jurisdiction is denied.
Final Release of Claims
The VA also moved for summary judgment.  The VA alleges that by signing the final
release of claims, Alares is precluded from bringing this claim.  To succeed on a motion for
summary judgment, there must be no material facts in dispute, and the moving party must
prove it is entitled to judgment as a matter of law.  Grand Strategy, LLC v. Department of
Veterans Affairs, CBCA 6795, 21-1 BCA ¶ 37,895, at 184,039.  “A material fact is one that
will affect the outcome of the case. . . . [A]ll reasonable inferences and presumptions are
resolved in favor of the non-moving party.”  Id.
On October 29, 2019, Alares signed a final release of claims, discharging the
Government from all liabilities under the contract, except for twenty-nine specified requests
for equitable adjustment (REAs).  Appeal File (CBCA 6149, et al.), Exhibit 81.  Included
within those twenty-nine REAs is REA 20, extended general conditions.  REA 20 was
converted to the claim that is at issue in CBCA 6149.

CBCA 7597 4
The first version of REA 20 was submitted on May 23, 2019, before the final release
of claims.  It requested an equitable adjustment due to alleged government delays and
differing site conditions that led to increases in the cost of the project.  See Appeal File
(CBCA 6149, et al.), Respondent’s Response to Appellant’s Second Addendum, Exhibit A. 
In REA 20, Alares included broad language that preserved its rights to seek costs for other
impacts on the schedule or time-related extended performance costs:
In accordance with VAAR [Veterans Affairs Acquisition Regulation]
852.228-70 and VAAR 852.236-88 Alares Construction, Inc. reserves its
rights to receive a bond premium adjustment at the time of final settlement
under this contract for Alares Construction, Inc. and its subcontractors[’]
increased Bond Premiums.  Alares Construction, Inc. reserves it’s [sic] rights
to additional costs for impact of this change, alone or in combination with
other changes, on unchanged work; for additional time, due to impacts, if any,
on the schedule; and for time-related extended time of performance costs, all
of which will be evaluated separately.
Id. at 5 (emphasis added).  The broad nature of this language presents some doubt as to the
material fact of whether appellant’s claim addendum is barred by the final release of claims. 
Thus, summary judgment is not appropriate. 
Decision
The VA’s motion to dismiss for lack of jurisdiction and alternative motion for
summary judgment are DENIED. 
  Jerome M. Drummond    
JEROME M. DRUMMOND
Board Judge
We concur:
   Beverly M. Russell            Jonathan D. Zischkau    
BEVERLY M. RUSSELL JONATHAN D. ZISCHKAU
Board Judge Board Judge