RESPONDENT’S MOTION TO DISMISS FOR LACK OF JURISDICTION DENIED:
December 18, 2025
CBCA 8323
HARBOR SERVICES, INC.,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Luke R. Gleissner of Gleissner Law Firm, L.L.C., Columbia, SC; and Benjamin C.
Bruner of Bruner, Powell, Wall, & Mullins, LLC, Columbia, SC, counsel for Appellant.
Laetitia C. Coleman, Office of General Counsel, Department of Veterans Affairs,
Arlington, TX, counsel for Respondent.
Before Board Judges RUSSELL, VOLK, and NEWSOM.
NEWSOM, Board Judge.
Respondent, the Department of Veterans Affairs (VA), moved to dismiss this appeal
for lack of jurisdiction on the ground that the notice of appeal was untimely.  The issue turns
on the date of the contracting officer’s final decision.  We conclude that, on the facts
presented, (1) the contracting officer’s decision in 2023 was not final; and (2) after appellant
submitted a claim in 2024, there was a deemed denial of this claim.  We conclude that the
Board possesses jurisdiction and deny the motion.


CBCA 8323 2
Background
The VA awarded contract VA246-16-C-0035 to Harbor Services, Inc. (appellant or
HSI) to renovate a portion of a VA medical center.  Respondent’s Motion to Dismiss at 1;
Exhibit 1. 1  According to HSI, as the work progressed, the VA changed the design and
caused delays.  In 2021 and 2022, HSI submitted requests for equitable adjustment (REA),
seeking reimbursement for delay costs, but the VA denied most of the costs.  Appellant’s
Opposition to Motion to Dismiss at 2-3; Exhibits C, D, E at 4.
Thereafter, the parties exchanged correspondence that lay at the heart of this dispute. 
In January 2023, HSI submitted another request for $1,925,342.24 in delay costs (January
2023 submission).  Exhibit F at 6.  The VA characterizes HSI’s January 2023 submission as
a claim under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109 (2018), while HSI
contends that the January 2023 submission was not a claim because it lacked a request for
a contracting officer’s decision.
The contracting officer responded to the January 2023 submission with a series of
letters.  In the first two letters, he offered to negotiate and requested additional support for
HSI’s costs.  Apparently disappointed with HSI’s response, on April 10, 2023, the
contracting officer issued a letter labeled “CONTRACTING OFFICER’S FINAL
DECISION” (April 2023 purported final decision), which denied HSI’s “REA/Claim,”
referencing HSI’s January 2023 submission.  Exhibit J at 20.
An internal government email states that the VA’s objective, in issuing the two
requests to negotiate as well as the 2023 purported final decision, was to “get [HSI] to the
table.”  Exhibit K at 3.  Two days after issuing the 2023 purported final decision,
notwithstanding having issued what he labeled a “final” decision, the contracting officer
emailed HSI and asked about the contractor’s “plan for providing the documentation” that
the VA had requested.  Exhibit K at 1-2.
On May 10, 2023, HSI responded to the 2023 purported final decision, asserting that
the parties had agreed not to treat HSI’s January 2023 submission as a claim while they
negotiated.  HSI asserted that it never requested a final decision and that the January 2023
submission should not be called a claim until Harbor decided otherwise, stating:
The VA continues to reference this discussion as a “Claim” but per our
discussions, emails, agreement, and at the Government[’s] request Harbor
1 Exhibits with numerals are attachments to respondent’s motion to dismiss, and
exhibits with letters are attachments to appellant’s opposition to the motion to dismiss.

CBCA 8323 3
agreed to postpone submitting this REA as a “Claim” as the Government
requested to “Negotiate” prior to Harbor Moving forward with a Claim.  These
discussions are concerning the “REA” and should not be called a Claim any
longer until Harbor decides to submit a Claim.
Exhibit L at 2 (emphasis added).
The contracting officer responded on May 24, 2023, insisting that HSI’s January 2023
submission was a claim, yet he acknowledged that HSI “doesn’t want to call this a Claim”
and wanted to continue “to negotiate.”  Exhibit M at 4.  He then offered to re-review the
submission if HSI “ma[d]e the necessary corrections and changes.”  Id. at 10.  After further
fruitless exchanges, the contracting officer, on July 5, 2023, wrote HSI that he “repeated[ly]
notified [HSI] . . . in several references that [the Government does] not intend to move
forward with further discussions . . . until [HSI has] made corrections . . . and re-certified the
REA.”  Exhibit O.
On October 20, 2023, HSI then submitted a revised request, which it called REA
17060, reducing the amount sought to $1,125,261.43 and segregating subcontractor costs. 
Exhibit Q at 3-6.  HSI requested that the VA engage in alternative dispute resolution (ADR)
proceedings to resolve the matter.  Exhibit P at 7-8.
The VA did not respond for many months.  HSI repeatedly sent emails requesting a
response.  Exhibit P.  Finally, on April 12, 2024, the contracting officer replied only:  “Please
refer to my COFD dated 4/10/2023, which explained your appeal rights.”  Exhibit P at 1.
More than six months later, on November 22, 2024, Harbor submitted a letter to the
contracting officer titled “Claim of Harbor Services, Inc. Under Contract No. VA246-16-C-
0035.” This November 2024 document included a CDA certification signed by HSI’s
president and stated “HSI requests a final decision.”  Notice of Appeal at 33-39.  In it, HSI
sought payment of $504,028.19, which is less than the amount it sought in the January 2023
submission.  Id. at 42; Exhibit F at 6.
On December 18, 2024, the contracting officer, apparently regarding the document
as a repeat of HSI’s January 2023 submission, responded that“[t]hese matters were addressed
in the COFD issued on April 10, 2023 in response to the certified ‘Notice of Claim’ dated
January 5, 2023.”  Notice of Appeal at 41.  HSI filed a notice of appeal with the Board on
January 15, 2025.

CBCA 8323 4
Discussion
The VA moves to dismiss this appeal on the ground that HSI’s notice of appeal was
untimely.  The VA contends that HSI submitted a claim in January 2023, that the contracting
officer issued a contracting officer’s final decision (COFD) on that claim on April 10, 2023,
and that the appeal period expired ninety days thereafter.  Because the notice of appeal was
filed January 15, 2025, the VA argues that it was untimely by more than a year.
“The Board gains jurisdiction under the CDA only after a claim is presented to the
contracting officer and is either decided or deemed denied, and the contractor files a timely
appeal.”  Bass Transportation Services, LLC v. Department of Veterans Affairs, CBCA 4995,
16-1 BCA ¶ 36,464, at 177,688 (citing Cosmic Construction Co. v. United States, 697 F.2d
1389, 1390 (Fed. Cir. 1982); C-Shore International, Inc. v. Department of Agriculture ,
CBCA 1696, 10-1 BCA ¶ 34,379, at 169,741).  To be timely, a contractor must file an appeal
at the Board within ninety days after the receipt of a contracting officer’s final decision on
the claim.  41 U.S.C. § 7104(a).
Only “final” contracting officer decisions, however, may be appealed.  Guardian
Angels Medical Services Dogs, Inc. v. United States, 809 F.3d 1244, 1247 (Fed. Cir. 2016). 
If, after issuing a decision on a claim, the contracting officer expresses willingness to
consider new arguments or reconsider previous arguments, these actions can vitiate the
finality of the decision.  Id. at 1249-50.  For instance, in Devi Plaza, LLC v. Department of
Agriculture, CBCA 1239, 09-1 BCA ¶ 34,033, the contracting officer stated in a purportedly
final decision that the Government was “willing to continue a meaningful and productive
dialog” about the claim, and the parties thereafter continued to negotiate.  Id. at 168,338. 
The Board concluded that the contractor reasonably believed that the contracting officer was
reconsidering the decision, which vitiated its finality.  See also Roscoe-Ajax Construction
Co. v. United States, 458 F.2d 55, 61, 63 (Ct. Cl. 1972) (finding that the contracting officer’s
denial of a contractor’s claim was not final where the contracting officer offered to “discuss
and consider the problem further”).
Here, the contracting officer issued a purported final decision on the January 2023
submission, and, in response, HSI proposed that the parties should not treat its January 2023
submission as a claim but rather continue to negotiate.  The contracting officer acknowledged
HSI’s proposal and then repeatedly offered to review a revised submission.  In these
circumstances, it was reasonable for HSI to believe that the contracting officer had accepted
HSI’s proposal not to treat the January 2023 submission as a claim and, instead, to review
more information.  Indeed, not only was that perception objectively reasonable, but, based
on the VA’s internal email, the evidence suggests that such a course of action was also the
VA’s subjective intent.

CBCA 8323 5
The VA argues that the contracting officer’s actions did not vitiate the finality of the
2023 purported final decision because the parties never actually negotiated.  The VA asserts
that HSI never provided the information that the contracting officer wanted.  Respondent’s
Reply Brief at 5.  The Federal Circuit, however, rejected an analogous argument in Guardian
Angels, holding that whether the Government actually considered the contractor’s request for
reconsideration is not the relevant standard.  809 F.3d at 1248, 1252.  What matters is
whether the contractor reasonably believed that the contracting officer was willing to
reconsider the decision.  As we have explained, HSI did so reasonably believe.
The VA also argues that the contracting officer reinstated his final decision in his
April 12, 2024, email.  The VA asserts that this April 2024 email “clearly articulated” that the
April 10, 2023, decision was final and placed HSI on notice of its appeal rights, effectively
restarting the appeal period.  Respondent’s Reply Brief at 5.  We disagree because that is not
what the email stated.  The email does not state, let alone clearly articulate, that the April 10,
2023, purported decision was final, and it states nothing about HSI’s then-current appeal
rights.  Rather, it simply referred to the earlier, purported final decision without further
explanation.
The contracting officer’s April 12, 2024, email here is similar to that in Devi Plaza,
LLC.  In that case, after a period of negotiation, the Government similarly argued that the
contracting officer issued a letter reinstating his final decision.  The Board noted that the
contracting officer’s letter was “only a statement indicating that, when the decision was
issued, the appellant had certain appeal rights.”  09-1 BCA at 168,338.  The Board found that
the letter was not sufficiently clear and, thus, did not trigger the appeal period.  Here, too,
even were we to assume that the January 2023 submission was a claim, the contracting
officer’s April 12, 2024, email was not sufficiently clear to start the appeal period.
We conclude that the April 10, 2023, purported final decision was not final and, thus,
did not trigger the appeal period, and the contracting officer did not clearly notify the
contractor otherwise.  As a result, the appeal period did not expire.2
Basis for the Board’s Jurisdiction
Although the appeal period did not expire, that fact, by itself, does not establish the
Board’s jurisdiction.  We still must confirm that a claim was presented to the contracting
2 Because we conclude that the contracting officer’s decision on HSI’s January
2023 submission was not final, it is not necessary for us to address HSI’s remaining
arguments:  that its January 2023 submission was not a claim and that the contracting
officer’s April 10, 2023, decision was invalid.

CBCA 8323 6
officer, that the contracting officer decided the claim or there was a deemed denial, and that
the appeal was timely.  Bass Transportation, 16-1 BCA at 177,688.
HSI submitted a new document to the contracting officer on November 22, 2024,
which met all of the requirements for a CDA claim:  it was in writing, requested a sum
certain, included a signed CDA certification, and requested a contracting officer’s decision. 
Zafer Construction Co. v. United States , 40 F.4th 1365, 1367 (Fed. Cir. 2022); 41 U.S.C.
§ 7103(b)(1); 48 CFR 2.101 (2024).  Significantly, it was different from HSI’s January 2023
submission, as shown by the fact that it sought a different amount.
The contracting officer responded to HSI on December 18, 2024, but that response was
not a decision on the November 22, 2024, claim.  The contracting officer’s response neither
addressed the substance of the November 22, 2024, claim, nor explained the contractor’s then-
current appeal rights.  The contracting officer’s response merely referred HSI to the
Government’s prior April 10, 2023, purported final decision on HSI’s prior January 2023
submission.
In the absence of a contracting officer’s decision within the statutory period, which in
this case is sixty days from the date of the claim, the contracting officer is deemed to have
denied the claim, and the contractor may appeal from the deemed denial.  41 U.S.C. § 7103(f). 
Accordingly, we conclude that HSI submitted a CDA claim which was deemed denied by the
contracting officer.
The deadline for the contracting officer’s decision was January 21, 2025, and HSI filed
this appeal on January 15, 2025, six days prior to this deadline.  Thus, this appeal was
premature at the time it was filed.  A premature appeal to the Board can ripen into maturity
if the appeal is still pending when the contracting officer’s deadline for issuing the decision
expires, as it did in this case.  Widescope Consulting and Contracting Services v. Department
of Health & Human Services , CBCA 6895, 22-1 BCA ¶ 38,034, at 184,713-14; Primestar
Construction v. Department of Homeland Security , CBCA 5510, 17-1 BCA ¶ 36,612, at
178,330-31.  In such a circumstance, “no useful purpose would be served by dismissing the
appeal as premature and requiring appellant to refile.”  R.W. Electronics Corp .,
ASBCA 46592, et al., 95-1 BCA ¶ 27,327, at 136,212.  The appeal was pending at the Board
as of January 21, 2025, when the contracting officer’s deadline for a decision expired. 
Accordingly, the November 22, 2024, claim was deemed denied, and the premature appeal
ripened into a mature appeal.  The Board possesses jurisdiction to entertain this appeal.

CBCA 8323 7
Decision
The respondent’s motion to dismiss is DENIED.
Elizabeth W. Newsom     
ELIZABETH W. NEWSOM
Board Judge
We concur:
   Beverly M. Russell          Daniel B. Volk                
BEVERLY M. RUSSELL DANIEL B. VOLK
Board Judge Board Judge