MOTION TO DISMISS FOR LACK OF JURISDICTION DENIED: June 23, 2010 
CBCA 1884, 1901, 1902, 1903, 1904, 1905, 1906, 1907, 1908, 
1909, 1910, 1911, 1912, 1913, 1914, 1915, 1916, 1917 
RON ANDERSON CONSTRUCTION, INC., 
Appellant, 
v. 
DEPARTMENT OF VETERANS AFFAIRS, 
Respondent. 
William G. Beck and Michele A. Munson of Woods, Fuller, Shultz & Smith P.C., 
Sioux Falls, SD, counsel for Appellant. 
Lindsay C. Roop, Office of Regional Counsel, Department of Veterans Affairs, 
Minneapolis, MN, counsel for Respondent. 
Before Board Judges SOMERS , BORWICK , and SHERIDAN . 
SOMERS, Board Judge. 
The Department of Veterans Affairs (VA or the Government) entered into a contract 
with Ron Anderson Construction, Inc. (contractor or appellant) to remodel a wing at the VA 
Black Hills Health Care System in Hot Springs, South Dakota. During the course of 
contract performance, the contracting officer made changes to the contract, or the appellant 
determined that constructive changes had occurred. The parties would discuss these 
changes, and the contractor would proceed after receiving verbal approval from the 
contracting officer. After completing the work, the appellant would submit a change order 
indicating the additional charges for the changes. The VA would either pay the entire 
amount, dispute portions of the charges, or deny payment entirely. 
The contract included the following VA Supplemental Changes clause:  

   
    
    
   
    
   
    
  
  
  
  
       
     
    
   
   
     
   
     
 
     
    
   
     
  
   
     
   
2CBCA 1884, 1901, 1902, 1903, 1904, 1905, 1906, 1907, 1908, 1909, 
    1910, 1911, 1912, 1913, 1914, 1915, 1916, 1917 
VAAR 852.236-88 Contract Changes - Supplement (JUL 
2002) 
(b) Paragraphs (b)(1) through (b)(11) apply to proposed 
contract changes costing $500,000 or less:
[1] 
(1) When requested by the contracting officer, the contractor 
shall submit proposals for changes in work to the resident 
engineer. Proposals, to be submitted as expeditiously as 
possible but within 30 calendar days after receipt of the request, 
shall be in legible form, original and two copies, with an 
itemized breakdown that will include materials, quantities, unit 
prices, labor costs (separated into trades), construction 
equipment, etc. (Labor costs are to be identified with specific 
material placed or operation performed.) The contractor must 
obtain and furnish with a proposal an itemized breakdown as 
described above, signed by each subcontractor participating in 
the change regardless of tier. When certified cost or pricing 
data or information other than cost or pricing data are required 
under FAR [Federal Acquisition Regulation] 15.403, the data 
shall be submitted in accordance with FAR 15.403-5. No 
itemized breakdown will be required for proposals amounting 
to less than $1,000.  
(2) When the necessity to proceed with a change does not 
allow sufficient time to negotiate a modification or because of 
failure to reach an agreement, the contracting officer may issue 
a change order instructing the contractor to proceed on the basis 
of a tentative price based on the best estimate available at the 
time, with the firm price to be determined later. Furthermore, 
when the change order is issued, the contractor shall submit 
within 30 calendar days, a proposal that includes the 
information required by paragraph (b)(1) for the cost of the 
changes of work.  
None of these appeals involve proposed contract changes involving costs 
exceeding $500,000.  
1 

  
    
   
    
     
       
     
      
     
     
    
 
   
    
    
     
  
       
      
      
       
    
      
       
3CBCA 1884, 1901, 1902, 1903, 1904, 1905, 1906, 1907, 1908, 1909, 
    1910, 1911, 1912, 1913, 1914, 1915, 1916, 1917 
(3) The contracting officer will consider issuing a settlement 
by determination to the contract if the contractor’s proposal 
required by paragraphs (b)(1) or (b)(2) of this clause is not 
received within 30 calendar days, or if agreement has not been 
reached.  
Respondent’s Motion to Dismiss, Attachment 2.
2 
Thus, as noted by the VA, many of the appeals involve what are called “settlements 
by determination,” which are contemplated by the above-cited clause. When the parties 
could not agree on the amount that the Government should pay for the proposed change 
within a reasonable period of time, the contracting officer would unilaterally change the 
contract through a contract modification.  Most of the contract modifications included the 
following language: 
This is the final decision of the Contracting Officer. You may 
appeal this decision to the agency board of contract appeals and 
provide a copy to the Contracting Officer from whose decision 
this appeal is taken. The notice shall indicate that an appeal is 
intended, reference this decision, and identify the contract by 
number. 
See Attachments to the Notices of Appeal for CBCA 1884, 1901, 1902, 1903, 1904, 1905, 
1907, 1908, 1911, 1912, 1913, 1914, 1915, 1916, and 1917. In some of the settlements by 
determination, the VA provided that the Government would take no further action regarding 
the contractor’s change orders.  
The remaining three appeals, CBCA 1906, 1909, and 1910, all involve circumstances 
in which the contractor submitted a cost proposal for changed work, the VA did not pay for 
the alleged changes, and the contracting officer did not issue a final decision. In these cases, 
the contractor demanded payment for the alleged changes. If the contracting officer did not 
pay upon request, the contractor submitted additional information and continued to demand 
payment. After months had passed without payment, the contractor requested final 
decisions. When the contracting officer failed to act, the appellant appealed the contracting 
officer’s failure to act as a deemed denial of its claim.  
The VA has provided limited excerpts of the contract in this case. No appeal 
files have yet been submitted.  
2 

      
        
     
   
      
      
    
        
      
    
       
    
   
    
    
      
      
       
    
        
     
    
    
           
     
      
       
           
               
             
              
        
4CBCA 1884, 1901, 1902, 1903, 1904, 1905, 1906, 1907, 1908, 1909, 
    1910, 1911, 1912, 1913, 1914, 1915, 1916, 1917 
The VA has moved to dismiss the appeals for lack of jurisdiction, alleging that the 
appellant never submitted a claim in any of the appeals. See Respondent’s Motion to 
Dismiss at 2 (citing 48 CFR 2.101). The Government asserts that the cost proposals 
submitted by the contractor do not constitute claims sufficient to meet the requirements of 
the Contract Disputes Act of 1978 (CDA), 41 U.S.C. § 605(a) (2006), because they are 
submitted pursuant to a provision in the contract which calls for the proposals to be resolved 
by “settlements by determination.”   
The appellant disagrees, and states in an affidavit that it submitted cost proposals 
demanding payment for unforeseen or unintended changes, in addition to being in response 
to change orders issued by the contracting officer. After submitting these cost proposals, 
the appellant provided additional information at the VA’s request, while continuing to 
demand payment. Appellant’s Brief in Response and Opposition to Respondent’s Motion 
to Dismiss, Exhibit 1. The appellant contends that the fact that many of the unilateral 
contract modifications provided contract appeal rights served as a further indication that the 
Government considered the proposals to be claims and the unilateral modifications to be 
final decisions.  
Discussion 
Under the CDA, “all claims by a contractor against the Government relating to a 
contract shall be in writing and shall be submitted to the contracting officer for a decision.” 
41 U.S.C. § 605(a). The CDA does not define a claim. The Federal Acquisition Regulation, 
however, defines a claim as “a written demand or written assertion by one of the contracting 
parties seeking, as a matter of right, the payment of a sum certain, the adjustment or 
interpretation of contract terms, or other relief arising or relating to the contract.” 48 CFR 
2.101 (2009). The Court of Appeals for the Federal Circuit uses this definition in 
determining whether a communication is a claim. M. Maropakis Carpentry, Inc. v. 
United States, No. 2009-5024, 2010 WL 2403337, at *3 (Fed. Cir. June 17, 2010) (citing 
Reflectone, Inc. v. Dalton , 60 F.3d 1572 (Fed. Cir. 1995) (en banc) ). 
Whether a communication is deemed a claim sufficient to invoke the Board’s 
jurisdiction depends on an evaluation of the relevant contract language, the facts of the case, 
and the regulations implementing the CDA. 
See Reflectone ; EBS/PPG Contracting v. 
Department of Justice , CBCA 1295, 09-2 BCA ¶ 34,208; Guardian Environmental Services, 
Inc. v. Environmental Protection Agency , CBCA 994, 08-2 BCA ¶ 33,938. The intent of the 
communication governs, and we must use a common sense analysis to determine whether the 
contractor communicated its desire for a contracting officer’s decision. Id. There is no 
requirement that a dispute exists at the time of submission of a non-routine request for it to 

                 
               
            
    
          
             
             
           
              
             
              
              
         
                
            
            
            
            
           
        
                
              
          
          
              
             
                
              
               
      
             
       
             
              
                
               
CBCA 1884, 1901, 1902, 1903, 1904, 1905, 1906, 1907, 1908, 1909, 5
    1910, 1911, 1912, 1913, 1914, 1915, 1916, 1917 
be considered a claim. Reflectone , 60 F.3d at 1576-78. Nor is there any “requirement in the 
Disputes Act that a ‘claim’ must be submitted in any particular form or use any particular 
wording.” Contract Cleaning Maintenance, Inc. v. United States , 811 F.2d 586, 592 
(Fed. Cir. 1987). 
Appellant bears the burden of establishing subject matter jurisdiction by a 
preponderance of the evidence. McNutt v. General Motors Acceptance Corp. , 298 U.S. 178, 
189 (1936); Reynolds v. Army and Air Force Exchange Service , 846 F.2d 746, 748 
(Fed. Cir. 1988); 801 Market Street Holdings, L.P. v. General Services Administration , 
CBCA 425, 08-1 BCA ¶ 33,853. In assessing whether the Board has subject matter 
jurisdiction, the allegations of the complaint should be construed favorably to the pleader. 
Scheuer v. Rhodes , 416 U.S. 232, 236 (1974); United Pacific Insurance Co. v. United States , 
464 F.3d 1325, 1327-28 (Fed. Cir. 2006); accord Hamlet v. United States , 873 F.2d 1414, 
1416 (Fed. Cir. 1989); CACI, INC.-FEDERAL v. General Services Administration , 
GSBCA 15588, 02-1 BCA ¶ 31,712, at 156,635 (2001). When a motion to dismiss for lack 
of subject matter jurisdiction challenges the truth of alleged jurisdictional facts, the Board 
may consider relevant evidence beyond the pleadings to resolve disputed facts. Cedars-Sinai 
Medical Center v. Watkins , 11 F.3d 1573, 1583-84 (Fed. Cir. 1993); B&M Cillessen 
Construction Co. v. Department of Health and Human Services , CBCA 931, 08-1 BCA 
¶ 33,753 (2007); Innovative (PBX) Telephone Services, Inc. v. Department of Veterans 
Affairs , CBCA 12, et al., 07-2 BCA ¶ 33,685 
The VA asserts that it has not received a specific demand seeking payment as a matter 
of right. It argues that the submission of proposals required under the contract cannot 
constitute claims as “[i]t is well settled that price proposals submitted by either party in the 
ordinary course of contract administration are not CDA claims,” citing Interstate 
Contractors, Inc. , VABCA 3404, 92-1 BCA ¶ 24,480 (1991). Pointing to the change orders, 
the appellant notes that the proposals contain the statement “[w]e hereby propose to furnish 
the materials and perform the labor necessary for the completion of . . . .” Respondent’s 
Motion to Dismiss at 3 (referencing change order 14 of CBCA 1906). The respondent 
contends that the appellant did not assert payment as a matter of right or demand a 
contracting officer’s decision in any of the proposals.  As to the unilateral change orders in 
the form of settlements by determinations, the fact that the contracting officer included final 
appeal language did not create a final decision. 
Contrary to the Government’s assessment, the request for a final decision need not be 
affirmative, but can be implied by the text of the submission. See, e.g. , EBS/PPG 
Contracting , 09-2 BCA at 169,111. “As long as the basic requirements of the CDA are met, 
and the contracting officer knows the bases for the claims and the final amounts sought, the 

               
              
              
              
             
            
            
           
               
              
                
             
             
         
             
           
     
___________________________ 
  
 
         
              
               
               
               
                
          
          
6CBCA 1884, 1901, 1902, 1903, 1904, 1905, 1906, 1907, 1908, 1909, 
    1910, 1911, 1912, 1913, 1914, 1915, 1916, 1917 
‘request’ for a final decision may be inferred from the circumstances of the case.” Id. 
(quoting Mega Construction Co. v. United States , 29 Fed. Cl. 396, 443 (1993)). 
Based on a review of the limited record before us, we note that language expressly 
requesting a contracting officer’s final decision does not appear in any of the cost proposals 
or correspondence between the parties relating to the change orders and cost proposals. 
However, the Board also looks to whether the appellant’s submissions and the circumstances 
surrounding them imply a desire for a contracting officer’s final decision. 
3 EBS/PPG 
Contracting , 09-2 BCA at 169,111; Guardian Environmental Services, Inc. , 08-2 BCA at 
167,946. Here, looking at the actions of the parties and the totality of the circumstances 
before us, we find that in each appeal, the contractor submitted a cost proposal which 
contained “a written demand, seeking, as a matter of right, the payment of money in a sum 
certain,” to the contracting officer, thus fulfilling the requirements for the submission of a 
claim. See Reflectone , 60 F.3d at 1575. The circumstances and correspondence surrounding 
the submission of each cost proposal support this conclusion. 
Decision 
VA’s motion to dismiss these appeals for lack of jurisdiction is DENIED . The 
presiding judge will convene a telephonic conference with counsel to discuss further 
proceedings in these cases. 
JERI KAYLENE SOMERS 
Board Judge 
3 The VA cites Interstate Contractors, Inc. and Winding Specialists Co. , 
ASBCA 37765, 89-2 BCA ¶ 21,737, in support of its contention that the cost proposals 
cannot be considered claims because they do not expressly seek a final decision or assert a 
payment as a matter of right. These cases, however, predate the guidance set forth in 
Reflectone. While it is true that the issuance of a “settlement by determination” does not 
serve to convey jurisdiction upon the Board in the absence of a valid claim or dispute, under 
Reflectone , the facts surrounding the issuance of a “settlement by determination” may give 
rise to a CDA claim, entitling the claimant to appeal rights. 

__________________________ ___________________________ 
    
  
7CBCA 1884, 1901, 1902, 1903, 1904, 1905, 1906, 1907, 1908, 1909, 
    1910, 1911, 1912, 1913, 1914, 1915, 1916, 1917 
We concur: 
ANTHONY S. BORWICK PATRICIA J. SHERIDAN 
Board Judge Board Judge