MOTION TO DISMISS DENIED: November 28, 2011 
CBCA 1945 
HERITAGE OF AMERICA, LLC, 
Appellant, 
v. 
DEPARTMENT OF VETERANS AFFAIRS, 
Respondent. 
Hilary S. Cairnie, Dena S. Kessler, and Udyogi A. Hangawatte of Baker & Hostetler, 
LLP, Washington, DC, counsel for Appellant. 
William R. Korth, Philip Kauffman, Dennis Foley, L.T. Burleson, and Carrie Parish, 
Office of the General Counsel, Department of Veterans Affairs, Washington, DC, counsel 
for Respondent. 
Before Board Judges STERN , BORWICK , and VERGILIO . 
VERGILIO , Board Judge. 
On March 24, 2010, the Board received from Heritage of America, LLC (contractor 
or HOA) a notice of appeal concerning its contract, VA101(049A3)-V-0329, with the 
Department of Veterans Affairs (agency), under which the contractor provided vocational 
rehabilitation and employment services. The appeal was filed based upon a deemed denial, 
the contracting officer having failed within sixty days of receipt of a claim to issue a decision 
or indicate the period of time within which a decision would be issued. The agency filed a 
motion to dismiss “regarding matters either not properly before the Board or which have been 
mooted, waived, or implicitly resolved via accord and satisfaction[.]” The Board denies the 
agency’s motion. 

 
 
            
              
            
             
             
              
          
            
           
  
                
     
       
            
            
            
              
      
       
              
           
            
            
              
             
         
              
              
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The claim 
In its certified claim (dated November 19, 2009) to the contracting officer, the 
contractor raises various theories of relief. Citing various examples, it asserts that the agency 
impeded the contractor’s performance, failed to pay amounts due, and caused increases to 
the contractor’s costs of performance. The claim prefaces the quantum section with two 
paragraphs: 
HOA provides estimates in this section of the amounts to which it is entitled 
for the claims set forth above. Some of these costs, such as unpaid invoices 
and interest, change on a daily basis by their very nature. 
The amounts are separately stated, and at the point VA considers the actual 
payment of specific claim items, HOA will work cooperatively with VA to 
identify any overlap. 
Appeal File, Exhibit 7.1 at 31 (exhibits are in the appeal file). The claim enumerates nine 
categories for (or elements of) payment. 
One: Regarding unpaid invoices, the claim states, 
VA owes HOA for unpaid invoices in the amount of $687,597.13, as of 
November 12, 2009. The exhibit referenced in the claim specifies a balance 
for invoices identified by date, invoice number, name, and class. This claim 
is for a sum certain, albeit a sum that could vary if the contractor receives 
payment from the agency. Exhibit I.A.1.1. 
Exhibit 7.2 at 31 (and referenced Exhibit I.A.1.1). 
Two: The claim seeks interest as required under the Prompt Payment Act, 31 U.S.C. 
§ 3902(b) (2006), for invoices paid late. Further, the claim specifies: 
This interest is estimated to be $48,925 as of the end of September, 2009. In 
addition, VA is liable for penalties due on unpaid interest on late payments 
made, in an amount to be determined. Finally, VA is also liable for Prompt 
Payment Act interest on unpaid invoices to the date of this claim, and for 
Contract Disputes Act interest thereafter, to the date of payment. 
Exhibit 7.2 at 31. With the exception of the unspecified penalties, these amounts the 
contractor seeks can be calculated as certain sums, if payments indeed are late and interest 

 
             
    
             
    
             
            
          
           
             
            
             
           
            
             
           
        
           
             
            
                
            
               
       
            
           
              
              
            
              
       
                 
            
            
                
3 CBCA 1945 
triggering events identified. The claim indicates no penalty that the contractor has incurred 
for which it seeks reimbursement. 
Three: The claim asserts entitlement to payment for orders placed under two service 
groups. An exhibit lists 
the amounts that VA should have paid, but has not paid, for these orders, 
because of its erroneous interpretation of the contract price tables. As of 
September 25, 2009, this amount is $50,540.76. Moreover, VA’s material 
breach, by virtue of nonpayment, means that HOA and its subcontractors have 
been unable to bring these cases to completion, and so together they are losing 
revenue in the amount of $227,423.05, as calculated on the same Exhibit on 
those cases. In addition, that same material breach means that HOA and its 
subcontractors have been unable to bring case management cases of 12 months 
and shorter duration to completion, and so they are together losing revenue in 
the amount of $1,055,544.41 on those cases. See Exhibit II.2. These sums 
constitute additional damages for breach of contract. Finally, HOA had to 
incur additional administrative costs in revising and submitting monthly 
invoices because they were divided by 12 months, rather than some other, 
larger number of months as designated by the regional office. An estimate of 
these costs, in the amount of $37,602.17 is set forth at Exhibit II.3. 
Exhibit 7.2 at 31-32. The referenced claim exhibit II.2 does not make apparent the basis for 
the identified claim amounts. The referenced claim exhibit II.3 identifies five individuals, 
and for each the percentage of time over a given period spent on counselor billing corrections 
for case management and a dollar amount sought. 
Four: The contractor asserts that start-up was delayed for approximately four months 
(from mid-September to mid-January). It maintains that continuing overhead costs incurred 
during that period could not be fully recovered through the priced contract work. “These 
cases are estimated on Exhibit II.4. They amounted to $556,390.69 computed for the period 
September 1 through December 31, 2008.” The referenced supporting exhibit specifies costs 
for various offices as well as operating costs, with costs summing to the claimed amount. 
Exhibit 7.2 at 32 (and referenced Exhibit II.4). 
Five: As a separate item of its claim, identified as costs for a rapid response team, the 
contractor states that the agency caused delays to the contractor in obtaining counselor 
approvals, and that the contractor incurred additional costs because of the delays. “These 
costs, estimated to be $38,022.72, are set forth in Exhibit II.5.” In support of this amount, 

 
       
              
             
              
              
              
              
          
            
              
         
             
       
            
              
              
            
             
             
          
               
              
       
       
  
          
  
 
              
         
             
4 CBCA 1945 
the submission identifies costs for travel, hotels, per diems, and parking, as well as for tips, 
a subcontractor fee, and a salary. Exhibit 7.2 at 32 (and referenced Exhibit II.5). 
Six: The contractor claims that it incurred costs of $98,493.54 for temporary labor 
to process counselor approvals. While the contractor claims that an estimated 30% of those 
costs are related to the normal processing costs, it seeks $68,948.48 (an exact amount, stated 
to be an estimated 70% of the incurred costs) as costs incurred beyond those anticipated 
under the contract because of various agency activities in one location. The claim references 
no supporting documentation for this item. Exhibit 7.2 at 32. 
Seven: The contractor seeks $10,591.96 for what it describes as additional testing 
costs. That is, the contractor maintains that agency individuals in the New England area 
imposed additional and unnecessary tests for which the contractor incurred the stated costs 
of subcontractors, itemized in an exhibit. The contractor expressly “reserves the right to 
amend this amount as additional claims for additional tests are received.” Exhibit 7.2 at 32 
(and referenced Exhibit II.6). To date, the contractor has not indicated that it has amended 
its claim relating to this specific quantum claim element or the more broadly worded aspects 
of its claim that allege agency interference with its ability to perform under the contract. 
Eight: The contractor contends that the agency failed to order some guaranteed 
minimums. The claim itemizes the shortfalls, associated dollar amounts, and bases for the 
calculations. The contractor seeks $71,515 for this item. Exhibit 7.2 at 32. 
Nine: The contractor seeks compensation for “additional financing costs” described 
as interest incurred to finance amounts paid late by the agency. The claim computes the 
amount at $38,759.29, for receivables over thirty days unpaid as of October 31, 2009, while 
stating that the amount due under this claim should be net of Prompt Payment Act interest. 
Exhibit 7.2 at 33 (and referenced Exhibit II.7). 
Motion to Dismiss 
The agency identifies various “points and authorities/arguments” in support of its 
motion to dismiss. 
Sum certain 
Asserting that a proper claim for relief must involve a sum certain, the agency states: 
“All the Complaint’s allegations supported by estimations, approximations, and guesswork, 
despite having figures assigned, must fail as not being properly before the Board, including 

 
           
  
             
                 
          
                  
            
             
            
              
            
              
  
               
            
           
              
            
                
      
           
          
                
       
             
             
              
              
              
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Delayed Start-Up Costs, Rapid Response Team, and Additional Testing Costs.” Agency 
Motion at 6. 
Contrary to the broad assertions of the agency, each element of the claim identifies 
specific amounts for relief. The claim seeks a sum certain. An exception is the reference in 
claim element two to penalties in an amount to be determined.  Without an asserted factual 
or legal basis or a sum certain for this element, this is not a proper element under the existing 
claim. But for this item, this claim is properly before the Board. 
Waiver 
In seeking to dismiss portions of the claim, the agency relies upon waiver: “In 
negotiating and accepting payments for past invoices and interests over the past year, 
Appellant has waived any defaults or defects in the invoices, interest, or payment.” The 
agency focuses this allegation upon unpaid invoices. However, the agency has provided 
neither basic factual support nor legal analysis that permits this assertion of waiver to be 
sustained. 
Accord and satisfaction 
As a basis in its motion to dismiss, the agency raises accord and satisfaction “as the 
Appellant agreed to negotiate over the invoices/billings past due and unpaid and has 
explicitly accepted both the Government’s payments as well as the Government’s overtures 
and efforts to reduce that quantum further, far below what the Complaint originally alleged.” 
Factually and legally, this assertion by the agency remains ill-supported. Without specifics, 
it is unclear which claim elements or portions of the claim the agency deems to be resolved. 
Limiting claims to contract line items (CLINS) 
The agency attempts to limit the contractor’s claim: “Appellant cannot present claims 
outside of the contract CLINS; the Appellant, as any contractor, may not unilaterally create 
or modify the contract to add equipment, labor, or related charges in addition to the line items 
and obligate the Government to provide compensation.” While the agency is correct that a 
contractor may not unilaterally create or modify a contract, this contractor is claiming that 
the agency unilaterally breached or modified the contract. Under theories of breach and 
constructive change, the contractor asserts entitlement to costs it incurred as a result of the 
agency’s actions which were not contemplated under the terms and conditions of the contract. 
Factually and legally, the agency has not demonstrated that these causes of action must fail. 

 
 
             
              
             
             
         
                
      
                  
               
 
             
              
             
            
              
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Anti-Deficiency Act 
Finally, the agency posits that there are no Anti-Deficiency Act, 31 U.S.C. § 1341, 
issues when the Government provides and has appropriated funds to pay for obligations. The 
contractor alludes to the Anti-Deficiency Act in support of its interpretation of the underlying 
contract. In particular, the contractor contends that the agency could not be obtaining 
services over multiple fiscal years without appropriate authorization and funding.  Further, 
the contractor relies upon its reading of the Act to bolster its interpretation of the contract that 
services were priced and to be paid for in increments of at most twelve months, not periods 
in excess of one year as the agency maintains. Because the claim does not raise the Act as 
an element of the claim, but only as a factor in contract interpretation, the agency’s motion 
is misplaced. 
Decision 
The Board DENIES the agency’s motion to dismiss. The present case is focused 
upon the elements of the underlying claim; there is not an amended claim (or contracting 
officer decision) or an amended complaint. The request for unspecified penalties in an 
unspecified amount in claim element two is premature, given that the claim fails to specify 
any penalty that the contractor has incurred or will incur for which it seeks compensation. 
JOSEPH A. VERGILIO 
Board Judge 
We concur: 
JAMES L. STERN ANTHONY S. BORWICK 
Board Judge Board Judge