DISMISSED FOR LACK OF JURISDICTION: January 14, 2015
CBCA 4111
CAPITOL CONSTRUCTION, INC.,
Appellant,
v.
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
Respondent.
Jeffrey L. Byroade, President of Capitol Construction, Inc., Windber, PA, appearing
for Appellant.
William R. Taylor and Julie Kelley Cannatti, Office of the General Counsel,
Department of Housing and Urban Development, Washington, DC, counsel for Respondent.
Before Board Judges STERN, KULLBERG, and ZISCHKAU.
KULLBERG, Board Judge.
Respondent, the Department of Housing and Urban Development (HUD), has
requested that the Board dismiss this appeal for lack of jurisdiction.  Appellant, Capitol
Construction, Inc. (CCI), brought this appeal after the denial of its claim under a contract
with the County of Blair Redevelopment and Housing Authorities (COBRAH) in
Hollidaysburg, Pennsylvania.  The Board finds that it has no jurisdiction in this appeal
because no executive agency of the Federal Government was a party to any contract with CCI
that is at issue in this appeal.  Accordingly, we dismiss this appeal for lack of jurisdiction.


CBCA 4111 2
Facts
On February 6, 2014, CCI and COBRAH executed contract 14-1 (contract) for kitchen
counter top replacement in apartment units at a HUD-financed housing project.  The contract
between COBRAH and CCI incorporated a set of HUD clauses for public housing
construction contracts.  The definitions section in the HUD clauses defined a contracting
officer (CO) as a person delegated by the public housing authority (PHA) to “enter into,
administer, and/or terminate this contract and designated as such in writing to the
Contractor.”  The disputes clause in the HUD clauses provided that claims were to be
submitted to the CO, and appeals of the CO’s decision were to be submitted “to a higher
level in the PHA in accordance with the PHA’s policy and procedures.”  
Funding for the contract was provided to COBRAH from HUD under an annual
contributions contract (ACC).  HUD provided COBRAH with funding for the ACC for the
2014 fiscal year under a capital funds program amendment, which was executed on May 13,
2014.  CCI was not a party to the ACC.
On or about March 24, 2014, CCI commenced work, but the CO ordered CCI to stop
work on April 1, 2014.  Work resumed on July 8, 2014.  CCI then submitted a request for a
change order to COBRAH for the cost of delay, and by letter dated July 30, 2014, COBRAH
denied CCI’s request.  Subsequently, CCI filed its appeal with the Board on September 5,
2014.  On September 30, 2014, HUD filed a motion to dismiss this appeal for lack of
jurisdiction.  
Discussion
HUD contends that the Board lacks jurisdiction to hear this appeal because “the
subject of this appeal is not a contract for the procurement of property or services by a federal
governmental agency, but instead this appeal pertains to a contract between a [PHA] and a
service contractor to perform construction work to a public housing development owned and
maintained by the relevant PHA.”  Respondent’s Motion to Dismiss at 3.  This Board has
recognized that an appellant “bear[s] the burden of establishing subject matter jurisdiction
by a preponderance of the evidence.”  Opportunities for the Aging Housing Corp.
v. Department of Housing & Urban Development, CBCA 1501, 10-1 BCA ¶ 34,311, at
169,488 (2009).  Under the Contract Disputes (CDA), 41 U.S.C. §§ 7101-7109 (2012), a
contractor is defined as “a party to a Federal Government contract other than the Federal
Government.”  Id. § 7101(7).  An executive agency is defined under the CDA as follows:  
(A) an executive department as defined in section 101 of
title 5;

CBCA 4111 3
(B) a military department as defined in section 102 of title 5; 
(C) an independent establishment as defined by section 104
of title 5 . . . ; and 
(D) a wholly owned Government corporation as defined in
section 9101(3) of title 31.”   
Id. § 7101(8).   
The dispute in this appeal is between CCI and COBRAH, which is a PHA.  A PHA
is not an executive agency of the Federal Government, and a dispute between a contractor
and a PHA, consequently, is not within the jurisdiction of this Board.  See Management
Strategies, Inc. v. Department of Housing & Urban Development, CBCA 2192, 11-1 BCA
¶ 34,683, at 170,835; Opportunities for the Aging Housing Corp., 10-1 BCA
at 169,489.  Accordingly, this Board has no jurisdiction over the dispute between CCI and
COBRAH.
HUD, the respondent in this appeal, provided COBRAH with funding under an ACC,
but such funding did not create a contractual relationship with CCI.  The CDA states the
following in pertinent part:
Unless otherwise specifically provided in this chapter, this
chapter applies to any express or implied contract . . . made by
an executive agency for–
(1) the procurement of property, other than real property in
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).  It is well established that HUD’s funding of a PHA through an ACC
is not a contract under the CDA, and such funding does not create a contractual relationship
between HUD and those companies that contract with a PHA.  New Era Construction v.
United States, 890 F.2d 1152, 1155 (Fed. Cir. 1989), aff’g New Era Construction, HUD BCA

CBCA 4111 4
88-3406-C6, 89-1 BCA ¶ 21,376 (1988); Giljoy Technology, Inc. v. Department of
Housing & Urban Development, CBCA 1988, 10-2 BCA ¶ 34,552.  In this appeal, HUD only
provided funding for COBRAH to enter into contracts related to housing projects under the
terms of an ACC.  HUD, consequently, did not become party to any contract over which the
Board would have jurisdiction in this appeal.  
Decision
The appeal is DISMISSED FOR LACK OF JURISDICTION.
_________________________
H. CHUCK KULLBERG
Board Judge
We concur:
____________________ _________________________
JAMES L. STERN JONATHAN D. ZISCHKAU
Board Judge Board Judge