THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND
IS BEING PUBLICLY RELEASED IN ITS ENTIRETY ON MARCH 3, 2021
MOTION TO DISMISS DENIED: February 23, 2021
CBCA 6477
MISSION SUPPORT ALLIANCE, LLC,
Appellant,
v.
DEPARTMENT OF ENERGY,
Respondent.
Marisa M. Bavand and Allison L. Murphy of Groff Murphy PLLC, Seattle, WA,
counsel for Appellant.
Paul R. Davis and Andrew J. Unsicker, Office of Chief Counsel, Department of
Energy, Richland, WA, counsel for Respondent.
Before Board Judges SOMERS (Chair), LESTER, and CHADWICK.
CHADWICK, Board Judge.
The appellant, Mission Support Alliance, LLC (MSA), filed a motion seeking
dismissal “for lack of jurisdiction” of two government theories of entitlement to relief that
the respondent, Department of Energy (DOE), argues were encompassed in the 2019
contracting officer’s decision from which MSA appealed.  In later briefing, MSA suggested
that we could, alternatively, rule that DOE fails to state a claim for relief.  Although we
understand the issues that MSA seeks to raise and we suspect they could be susceptible to


CBCA 6477 2
resolution on some sort of motion, we deny the present motion because MSA does not
actually want us to “dismiss” any portion of its appeal or of the complaint that MSA filed.
Background
We previously described the cost-type contract at issue here in Mission Support
Alliance, LLC v. Department of Energy, CBCA 6477, 20-1 BCA ¶ 37,657.  In February 2019,
a DOE contracting officer issued a decision asserting a claim against MSA under the contract
and demanding repayment of $15,419,830 in allegedly “unallowable subcontract costs.”  The
decision itemized the DOE claim as including amounts for subcontractor costs questioned
in past audits; “[p]rojected unallowable costs to audits not completed [sic]”; and, as the
largest quantum element, $10 million for “Other Matters[:] unquantified internal control
issues and procedure violations; Five unresolved audits; and Failure to flow down terms and
conditions.”  The parties disagree about whether the decision adequately notified MSA of
exactly what costs and audits DOE was referencing.
MSA filed this appeal in May 2019.  In June 2019, MSA filed a complaint with six
counts, titled, “Improper Disallowance of Costs Despite MSA’s Compliance with
Contractual Audit Requirements,” “Abuse of Discretion,” “Statute of Limitation,”
“Estoppel,” “Waiver,” and “Acquiescence.”  In the complaint, MSA described the “Other
Matters” category of DOE’s claim as “arbitrary and capricious and constitut[ing] an abuse
of discretion” because “DOE does not describe how it arrived at the figure of $10,000,000
or specify any particular component amounts.”  DOE asserted no affirmative defenses in its
answer and asked the Board to “enter judgment” in DOE’s favor.
In August 2019, MSA served interrogatories and a request for production intended to
obtain more information about the “Other Matters” category of DOE’s claim.  Unsatisfied
with DOE’s response, MSA filed a motion for summary judgment, which we denied.  In
October 2020, MSA again sought clarification from DOE as to the “Other Matters” category
of the claim.  In response, DOE pointed to alleged violations of certain contract clauses by
MSA’s “pre-select” subcontractors as the basis for that aspect of the claim.
MSA filed the instant motion in December 2020.  Asserting that it had been unable
to gain an understanding of the “Other Matters” and had received from DOE only “a string
of ever-expanding, inscrutable explanations not grounded in relevant law or fact,” MSA
stated that the dispositive issues presented by its motion were: (1) “Whether DOE’s claim
alleging violation of [a particular contract clause] by MSA’s pre-select subcontractors must
be dismissed for lack of jurisdiction because it is beyond the scope of [the contracting
officer’s decision] which forms the basis of this action”; and (2) “Whether DOE’s claim
alleging violation of [another contract clause] by pre-select subcontractors and associated

CBCA 6477 3
disallowance calculations other than those identified on the face of the [decision] must be
dismissed for lack of jurisdiction” for the same reason.1 
DOE argued in opposing the motion that the two DOE theories identified by MSA
“are not new claims, and the applicability of [the two cited contract clauses] to the
allowability of subcontract costs was apparent on the face of the contract . . . . Thus, MSA
cannot reasonably claim to have had no notice of their limitations on cost allowability.”  The
panel heard oral argument on the motion in February 2021.
Discussion
MSA’s jurisdictional motion—which we believe MSA filed with a genuine desire to
advance the case by narrowing the issues in dispute—is not the right vehicle to raise the
issues that MSA wants the Board to resolve.  MSA acknowledged at oral argument that it
does not contend that we lack “jurisdiction” to decide the appeal that MSA filed in 2019. 
MSA does not, in fact, want the Board to throw out or to refuse to rule on any aspect of
MSA’s timely challenge to the decision that the contracting officer issued in February of that
year.  See 41 U.S.C. § 7105(e)(1)(B) (2018); Bass Transportation Services, LLC,
v. Department of Veterans Affairs, CBCA 4995, 16-1 BCA ¶ 36,464 (“The Board gains
jurisdiction . . . after a claim is presented to the contracting officer and is either decided or
deemed denied, and the contractor files a timely appeal.”).
We fully understand that MSA wants us to exclude from the case certain issues that
MSA perceives to have been raised belatedly by DOE.  We agree with MSA, furthermore,
that a government claim is like a contractor’s claim, in that neither may expand at the Board
beyond the scope of the claim decided by the contracting officer.  E.g., Santa Fe Engineers,
Inc. v. United States, 818 F.2d 856, 858 (Fed. Cir. 1987); Aerovironment, Inc., ASBCA
58598, 16-1 BCA ¶ 36,337 (denying leave to amend the answer); Unconventional Concepts,
Inc., ASBCA 56065, et al., 10-1 BCA ¶ 34,340 (striking counterclaims from the answer). 
Our difficulty arises when we try to link MSA’s motion to the operative documents before
us, which consist of the contracting officer’s decision, MSA’s notice of appeal, MSA’s
complaint, and DOE’s answer.2  Even assuming without deciding that we otherwise agreed
with MSA’s legal analysis, we would not “dismiss” anything in those documents for “lack
1 A third issue raised by MSA, whether DOE had “explain[ed]” its claim “with
sufficient particularity” in correspondence with MSA’s counsel, is the province of the
presiding judge and will be addressed separately from this decision. 
2 We need not speculate as to whether the result might differ if DOE had filed
the complaint as Board Rule 6(a) permits for a “respondent asserting a claim.”

CBCA 6477 4
of jurisdiction.”  DOE authored only the decision and the answer, and MSA does not point
to jurisdictional defects in either document.  To the contrary, MSA’s position is that DOE
is bound jurisdictionally to the scope of the contracting officer’s decision.
MSA explained at oral argument that what it wants “dismissed” from the case are
certain positions taken by DOE counsel in “letters” regarding the scope of DOE’s claim. 
Again, we understand in principle why litigation correspondence may raise concerns
regarding the proper scope of a claim before the Board, and we understand why a party might
raise such concerns in good faith.  We do not believe, however, that in the current posture
of the appeal, MSA has presented a well-formulated “challeng[e to] the Board’s [statutory]
jurisdiction.”  Rule 8(b) (48 CFR 6101.8(b) (2019)).  If a party asserts among its arguments
a claim that was neither decided by the contracting officer nor set forth in a pleading, the
Board has the option of simply not addressing that new claim when resolving the case and
need not issue a formal dismissal.  See P.K. Management Group, Inc. v. Department of
Housing & Urban Development, CBCA 6185, 19-1 BCA ¶ 37,417, aff’d, No. 2020-1260,
2021 WL 382420 (Fed. Cir. Feb. 4, 2021); Nassar Group International, ASBCA 58541, et
al., 19-1 BCA ¶ 37,405 (denying the appellant’s motion for summary judgment in part
because “we do not possess jurisdiction over appellant’s [new] impossibility claim”).
MSA argued for the first time in its reply that the DOE contracting officer’s decision
“is insufficient to state a plausible claim of relief on its face” and accordingly “must be
dismissed.”  We acknowledge that Rule 8(e) states literally that “[a] party may move to
dismiss all or part of a claim for failure to state grounds on which the Board could grant
relief”—not all or part of a complaint.  Nonetheless, a contracting officer’s decision is not
a pleading before the Board, and we interpret Rule 8(e) as limited to motions to dismiss
claims that are asserted, or at least incorporated, in pleadings.  Cf. Fed. R. Civ. P. 12(b)(6)
(referring to failure to state a claim as a “defense to a claim for relief in [a] pleading”);
RocJoi Medical Imaging, LLC v. Department of Veterans Affairs, CBCA 6885, 20-1 BCA
¶ 37,746 (“We have liberally construed the complaint [on a motion to dismiss] by drawing
on the more detailed allegations in the claim.”).  Even if the motion were timely made, we
would not entertain a motion to “dismiss” the contracting officer’s decision itself.
Alternatively, the Board considered treating MSA’s motion to dismiss as a motion in
limine or, recognizing that granting the motion could have the effect of granting MSA’s
appeal in part, as a motion for partial summary judgment.  We conclude, however, that the
prudent course is to deny the motion and for the parties to confer with the presiding judge
about further procedures that may be appropriate.

CBCA 6477 5
Decision
MSA’s motion to dismiss is DENIED.
    Kyle Chadwick      
KYLE CHADWICK
Board Judge
We concur:
    Jeri Kaylene Somers             Harold D. Lester, Jr.       
JERI KAYLENE SOMERS HAROLD D. LESTER, JR.
Board Judge Board Judge