DISMISSED FOR LACK OF JURISDICTION:
April 6, 2018
CBCA 5992
 
DUKE UNIVERSITY, 
Appellant,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Respondent.
Frederick Robinson of Norton Rose Fulbright US LLP, Washington, DC; and
Caroline M. Mew of Perkins Coie LLP, Washington, DC, counsel for Appellant.
Tami S. Hagberg, Office of the General Counsel, Department of Health and Human
Services, Washington, DC, counsel for Respondent.
Before Board Judges BEARDSLEY, ZISCHKAU, and LESTER.
LESTER, Board Judge. 
Appellant, Duke University (Duke), filed an appeal of a contracting officer’s decision
on what Duke referred to as a “non-monetary claim” that it had submitted to the National
Institute of Allergy and Infectious Diseases (NIAID) within the Department of Health and
Human Services’ National Institutes of Health.  Duke does not include in its claim a request

CBCA 5992 2
for a monetary payment in a sum certain.  In light of the Court of Appeals for the Federal
Circuit’s recent decision in Securiforce International America, LLC v. United States, 879
F.3d 1354 (Fed. Cir. 2018), which addressed tribunals’ jurisdiction to entertain certain
disputes involving nonmonetary claims, the Board asked the parties to address the extent to
which the Board possesses jurisdiction to entertain Duke’s claim.  Subsequently, the parties
filed a joint motion to dismiss this appeal without prejudice to its merits, although without
expressly requesting that we dismiss the appeal for lack of jurisdiction.  However, they ask
that, in dismissing without prejudice, we rule that the “reinstatement” provisions of Board
Rule 12(d), 48 CFR 6101.12(d) (2017), do not apply so that, if Duke submits a monetary
claim to NIAID, Duke will retain the right to file suit in the Court of Federal Claims.
Duke has already incurred costs that it will not be reimbursed under NIAID’s
interpretation of the contract, and it is clear that Duke’s current claim is, in reality, a
monetary claim that does not identify a sum certain that Duke will seek to recover.  We lack
jurisdiction to entertain Duke’s appeal.
Background
On August 1, 2017, Duke submitted a letter to the NIAID contracting officer,
requesting a decision regarding a dispute arising under contract no. HHSN272201300017I
(the Vaccine and Treatment Evaluation Units (VTEU) contract) and three associated task
orders (nos. 8, 13, and 17) awarded in 2015 and 2016.  In its letter, Duke challenged NIAID’s
interpretation of some of the VTEU contract provisions and requested a contracting officer’s
decision on its interpretation question.  NIAID had interpreted the contract provisions to
preclude Duke’s full recovery of its facilities and administrative (F&A) costs, limiting
recovery of F&A costs on the subcontracted portions of work under the three subject task
orders.  Duke neither included a request for money in its letter nor identified the amount of
previously unpaid costs to which it believed it was entitled, even though the information in
the record indicates that Duke had already incurred some F&A costs that were not being
reimbursed at that point in time.  Instead of requesting money, Duke requested that the
NIAID contracting officer revisit her interpretation of the VTEU contract provisions and
Duke’s entitlement to full F&A cost recovery.
The NIAID contracting officer issued a decision on October 11, 2017 (which Duke
received on October 18, 2017), in which she explained her interpretation of the VTEU
contract provisions and concluded “that the F&A costs applied to the subcontracted portions
of the [statement of work] represent excessive pass-through charges per [Federal Acquisition
Regulation (FAR)] Clause 52.215-23 and are unallowable per FAR Section 31.203(i).”  She
found “that Duke has not demonstrated value added for the subcontracted work under Task
Orders 8, 13, and 17” sufficient to justify use of a different method of calculating an

CBCA 5992 3
appropriate F&A cost recovery, and she detailed the factual reasons that she believed
supported her finding.  At the end of the decision, the contracting officer notified Duke of
its right to appeal the decision within ninety days to the Board or within twelve months to the
Court of Federal Claims, using the language contained in FAR 33.211(a)(4)(v) (48 CFR
33.211(a)(4)(v)).
On January 8, 2018, Duke appealed the contracting officer’s decision to the Board,
describing the basis of its appeal as follows:
The dispute involves the denial by NIAID of full recovery of indirect (F&A)
costs . . . to Duke on the three task orders under the VTEU contract referenced
above.  Specifically, NIAID has denied Duke F&A cost recovery on certain
subcontract costs under these task orders, ostensibly on the grounds that
Duke’s F&A costs on the subcontracted portions of the subject task orders
constitute excessive pass-through charges.  See FAR 52.215-23.  Duke
disputes NIAID’s interpretation of this provision of the contract.  In its claim
letter, Duke also argued that NIAID may be limiting Duke’s F&A cost
recovery based on an improper determination that certain subcontractors are
acting as “subrecipients” rather than “contractors.”  See 2 C.F.R. § 200.330;
45 C.F.R. § 75.351.  In her Final Decision, the Contracting Officer found that
Duke has not demonstrated value added for the subcontracted work under Task
Orders 8, 13, and 17 referenced above.  In her Final Decision, the Contracting
Officer states that “NIAID has determined that the F&A costs applied to the
subcontracted portions of the SOW represent excessive pass-through charges
per FAR Clause 52.215-23 and are unallowable per FAR Section 31.203(1).”
Duke, in its notice of appeal, represented that it was “seek[ing] a declaratory judgment
regarding the parties’ rights and obligations on a disputed contract interpretation.”
Nine days after Duke filed its notice of appeal, the Federal Circuit issued its decision
in Securiforce, discussing jurisdictional issues associated with nonmonetary claims under the
Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2012).  Subsequently, the Board,
in an order asking for the parties’ input into setting an initial schedule of proceedings in this
appeal, requested that, among other things, the parties address whether and the extent to
which the rationale underlying the Federal Circuit’s decision in Securiforce applied to the
claim presented here. 
On March 5, 2018, the parties filed a joint motion to dismiss this appeal.  They
represent in the motion that they “wish to avoid protracted litigation over jurisdictional issues
in this appeal” and that, following discussions between the parties, Duke has stipulated to

CBCA 5992 4
withdraw its claim letter to NIAID dated August 1, 2017.  NIAID has stipulated to rescind
the contracting officer’s decision dated October 11, 2017, as moot.  The parties have also
stipulated to dismissal of this appeal without prejudice to the merits of the dispute, as well
as without prejudice to Duke’s right to submit a new claim to the NIAID contracting officer
relating to recovery of F&A costs.  They further stipulate that Duke “is not estopped or
precluded from raising any issues or arguments in any new claim” and that NIAID “is not
estopped or precluded from raising any issues or arguments in its Final Decision or from
filing counterclaims arising out of the Contract or any task orders issued pursuant to the
Contract.”  They also stipulated and agreed to the following:
[B]ecause the August 1, 2017, claim letter and October 11, 2017, Final
Decision have been withdrawn and rescinded, there will be no need to reinstate
this appeal[,] and the 180-calendar day deadline to reinstate this appeal
pursuant to CBCA Rule 12(d) . . . is not applicable here.  The parties stipulate
and agree that if Duke submits a new claim to NIAID and that claim is denied
in whole or in part in a Final Decision by the NIAID Contracting Officer,
Duke will be able to appeal that Final Decision to either this Board or the
Court of Federal Claims pursuant to the Contract Disputes Act, 41 U.S.C.
§ 7104, and without regard to the 180-day deadline for reinstatement set out
in CBCA Rule 12(d).
In light of these stipulations, the parties ask the Board to dismiss this appeal without
prejudice to its merits; order that the “‘reinstatement’ and 180-calendar-day requirement of
CBCA Rule 12(d) does not apply here”; order that, if Duke submits a new claim that the
NIAID contracting officer denies, Duke can pursue that appeal either before the Board or in
the Court of Federal Claims (meaning that Duke has not made an election to proceed before
the Board) and without regard to the 180-calendar day limitation of CBCA Rule 12(d); and,
if the Board determines that the 180-day reinstatement period of Rule 12(d) applies, order
NIAID to issue a decision on any claim that Duke submits within sixty days of receipt or
refrain from notifying Duke of the time within which a decision will be issued so that Duke
can timely appeal from a deemed denial.
Discussion
The Board’s jurisdiction to entertain contract disputes derives from the CDA. 
Veterans Contracting Group, Inc. v. Department of Veterans Affairs, CBCA 5927, et al.,
18-1 BCA ¶ 36,936, at 179,950 (2017).  When a contractor has a dispute regarding the
payment of money from the Government under a contract, the contractor, as a prerequisite
to review by the Board, must have submitted a written claim to the relevant agency’s
contracting officer seeking payment, as a matter of right, of an amount to which it believes

CBCA 5992 5
itself entitled, stated in a sum certain, and requesting a decision of the contracting officer. 
Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (en banc); Richter
Developments, Ltd. v. General Services Administration, CBCA 5119, 16-1 BCA ¶ 36,306,
at 177,038.  Absent such a submission, and a certification if the requested payment exceeds
$100,000, the Board lacks jurisdiction to entertain the claim, even if the contracting officer
has issued a decision on it.  Richter Developments, 16-1 BCA at 177,038.
Not every CDA claim that the Board reviews has to be one involving the payment of
money.  The FAR defines a “claim” as including “a written demand or written assertion by
one of the contracting parties seeking, as a matter of right, . . . the adjustment or
interpretation of contract terms, or other relief arising under or relating to the contract.” 
48 CFR 2.101.  The contractor need not submit a monetary claim to have its dispute over
interpretation resolved, even if a decision may ultimately affect monetary amounts that the
contractor may eventually receive.  Medical Development International Ltd. v. Department
of Justice, DOT BCA 4547, 06-2 BCA ¶ 33,405, at 165,627-29.  The Federal Circuit has held
that tribunals are not jurisdictionally barred from reviewing claims prior to completion of
performance in which a contractor does not seek monetary relief “simply because the
contractor could convert the claims to monetary claims by doing the requested work and
seeking compensation afterwards.”  Alliant Techsystems, Inc. v. United States, 178 F.3d
1260, 1270 (Fed. Cir. 1999).  It rejected the argument that a nonmonetary dispute is outside
the court’s jurisdiction simply because the contractor has not completed performance on the
contract.  It held that, if a contractor does not want to perform work that the Government is
demanding (pursuant to, for example, an improperly exercised option), the contractor can
seek review through a nonmonetary claim in which the contractor asks for a judgment finding
that the Government’s contract interpretation is incorrect.  Id. at 1269-70.  That is, the
contractor does not necessarily have to perform the work and then seek monetary relief.  Id.
In its January 17, 2018, decision in Securiforce, however, the Federal Circuit decided,
in a situation in which a contractor had already incurred costs as a result of the Government’s
allegedly incorrect action under the contract, that the contractor could not dress its monetary
claim as a nonmonetary contract interpretation issue when the true purpose of the claim was
to provide for a monetary award to the contractor:
While contractors may in some circumstances properly seek only declaratory
relief without stating a sum certain, they may not circumvent the general rule
requiring a sum certain by reframing monetary claims as nonmonetary.  In a
related context, we have been careful to recognize this distinction.  The
Administrative Procedure Act (“APA”) provides a cause of action for
nonmonetary claims against the government, 5 U.S.C. § 702, so long as “there
is no other adequate remedy in a court,” id. § 704.  The Tucker Act, however,

CBCA 5992 6
provides exclusive jurisdiction in the Claims Court for monetary claims
exceeding $10,000.  See 28 U.S.C. §§ 1346(a)(2), 1491(a)(1).  The question
in many of our prior cases, then, has been whether a given claim is properly
classified as monetary or nonmonetary.  We and other courts of appeals have
consistently held that litigants may not avoid the Claims Court’s exclusive
jurisdiction by dressing up monetary claims in other courts as requests for
nonmonetary, declaratory relief under the APA.  Doe v. United States, 372
F.3d 1308, 1313 (Fed. Cir. 2004) (collecting cases).
In making this determination, “we customarily look to the substance of the
pleadings rather than their form.”  Brazos Elec. Power Coop., Inc. v. United
States, 144 F.3d 784, 787 (Fed. Cir. 1998).  If “the only significant
consequence” of the declaratory relief sought “would be that [the plaintiff]
would obtain monetary damages from the federal government,” the claim is in
essence a monetary one.  Id.  We see no reason to depart from this principle
here, when determining whether a claim is monetary or nonmonetary for
purposes of CDA jurisdiction.
Securiforce, 879 F.3d at 1360-62.  The Federal Circuit held that, if a claim, “although styled
as one for declaratory relief, would – if granted – yield only one significant consequence,”
which would be to “entitle [the contractor] to recover money damages from the government,”
the claim could only be pursued as a monetary claim, stated in a sum certain.  Id. at 1360-61;
see Kellogg Brown & Root Services, Inc. v. United States, 115 Fed. Cl. 168, 184 (2014)
(dismissing suit for lack of jurisdiction where, through a ruling on its nonmonetary contract
interpretation claim, the contractor was in reality seeking money damages that it had already
incurred); Thomas Creek Lumber & Log Co., IBCA 4020-1999, 00-2 BCA ¶ 31,077, at
151,435 (“If a claim purports to seek nonmonetary relief, but nonetheless is based upon
breach of contract, then money damages are the appropriate remedy and they must be alleged
and the claim certified, if required.”); McDonnell Douglas Corp., ASBCA 50592, 97-2 BCA
¶ 29,199, at 145,292 (“We have refused to grant declaratory relief where we found the real
issue was money.”).
Here, Duke has already incurred costs associated with its contract interpretation
dispute, and it could have quantified those costs and stated them in a sum certain in a claim
to the contracting officer.  Unlike the contractor in Alliant, Duke is not asking us to allow it
to stop performing work or to preclude it from incurring additional costs in the future based
upon its interpretation of the contract.  Instead, it is asking the Board to interpret the VTEU
contract in a manner that will permit full F&A cost recovery, rather than the more limited
F&A cost recovery that NIAID currently permits.  A ruling in Duke’s favor would not result
in Duke avoiding costs, but instead would be used only to entitle Duke to monetary relief in

CBCA 5992 7
a separate proceeding.  In such circumstances, it is clear that Duke has an uncertified and
unquantified monetary claim.  We must dismiss Duke’s claim for lack of jurisdiction.
We recognize that the parties have requested dismissal on a basis other than a lack of
jurisdiction.  They asked that the Board, without addressing the jurisdictional issue, dismiss
this appeal without prejudice, allow Duke to submit a monetary claim to the NIAID
contracting officer, and provide Duke with the right to challenge a decision on that claim in
the Court of Federal Claims if Duke were to elect not to return to the Board.  If we could
consider that request, there potentially could be issues, including the applicability of the
Election Doctrine,1 that might complicate or interfere with our ability to satisfy all of the
parties’ stated goals.  See, e.g., Palafox Street Associates, L.P. v. United States, 114 Fed. Cl.
773, 784 (2014) (discussing effect of the Election Doctrine on a suit filed after the parties had
jointly agreed to the voluntary dismissal of a prior appeal before the Board involving the
same claim).  “Without jurisdiction,” though, we “cannot proceed at all in any cause,”
Sinochem International Co. v. Malaysia International Shipping Corp., 549 U.S. 422, 431
(2007) (quoting Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998)),
meaning that we cannot entertain the parties’ request for dismissal without prejudice. 
Jurisdiction is “a threshold matter” to be decided, “spring[ing] from the nature and limits of
the judicial power of the United States,” and it “is inflexible and without exception.”  Steel
Co., 523 U.S. at 94-95.  Once we are aware that we lack jurisdiction to entertain an appeal,
we have “no other recourse but to dispose of the case by dismiss[ing]” it based upon the
jurisdictional defect.  Rex Systems Inc. v. United States, No. 92-411C, 1993 WL 13726058,
at *3 (Fed. Cl. Dec. 13, 1993), appeal dismissed, 41 F.3d 1517 (Fed. Cir. 1994) (table); see
Primestar Construction v. Department of Homeland Security, CBCA 5510, 17-1 BCA
¶ 36,612, at 178,330 (2016) (lack of jurisdiction leaves the tribunal “no power to do anything
but strike the case from its docket, the matter being coram non judice” (quoting Johns-
Manville Corp. v. United States, 893 F.2d 324, 327 (Fed. Cir. 1989)).  In light of Securiforce,
the jurisdictional defect here is obvious, and we cannot ignore it.2
1 Once a contractor makes a knowing election to file an appeal with a board of
contract appeals rather than to initiate a suit in the Court of Federal Claims, the contractor
is precluded, under the so-called Election Doctrine, “from pursuing [the] claim [at issue in
the appeal] in the alternate forum.”  National Neighbors, Inc. v. United States, 839 F.2d
1539, 1542 (Fed. Cir. 1988).  “The Election Doctrine does not apply, however, if the forum
originally selected lacked subject matter jurisdiction over the appeal.”  Bonneville Associates
v. United States, 43 F.3d 649, 653 (Fed. Cir. 1994).
2 Although the parties have requested that we suspend Board Rule 12(d), which, in
certain circumstances, converts a dismissal without prejudice into one with prejudice if the
parties do not return to the Board within 180 days after dismissal, Rule 12(d) is inapplicable

CBCA 5992 8
Decision
For the foregoing reasons, this appeal is DISMISSED FOR LACK OF
JURISDICTION.
Harold D. Lester, Jr. 
HAROLD D. LESTER, JR. 
Board Judge
We concur:
Erica S. Beardsley  Jonathan D. Zischkau 
ERICA S. BEARDSLEY JONATHAN D. ZISCHKAU
Board Judge Board Judge
to dismissals for lack of jurisdiction.  Diamante Contractors, Inc. v. Department of the
Interior, CBCA 2017, 11-1 BCA ¶ 34,679, at 170,822.