DISMISSED FOR LACK OF JURISDICTION:  November 24, 2009 
CBCA 1501 
OPPORTUNITIES FOR THE AGING HOUSING CORPORATION
 
AND OPPORTUNITIES FOR THE AGING HOUSING CORPORATION II,
 
Appellants, 
v. 
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, 
Respondent. 
Ronald J. Harper of Harper & Paul, Philadelphia, PA, counsel for Appellants. 
Jay A. Lauer, Office of the General Counsel, Department of Housing and Urban 
Development, Washington, DC, counsel for Respondent. 
Before Board Judges SOMERS , BORWICK, and STEEL . 
SOMERS , Board Judge. 
Appellants, Opportunities for the Aging Housing Corporation and Opportunities for 
the Aging Housing Corporation II, seek to appeal a decision by the Director, Department of 
Housing and Urban Development (HUD), Philadelphia Office.  The decision required 
appellants to obtain new property management to oversee a housing project, based upon the 
reported failure by appellants to maintain the physical condition of the property.  
Pending before the Board is HUD’s motion to dismiss for lack of jurisdiction under 
the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613 (2006) (CDA).  HUD asserts that 
the Board does not possess jurisdiction over this dispute because the dispute does not involve 
a contract with the United States, express or implied, which would fall within the ambit of 

 
 
    
   
  
  
     
 
  
   
 
 
      
   
 
        
     
 
 
2 CBCA 1501 
the CDA.  Appellants oppose the motion.  For the reasons set forth below, we conclude that 
the Board does not possess jurisdiction to entertain this appeal. 
Background 
Section 202 of the Housing Act of 1959, as amended, Pub. L. No. 86-372, 
73 Stat. 654, 667 (codified as amended at 12 U.S.C. § 1701q), authorizes HUD to make loans 
for housing for the elderly or persons with disabilities.  These loans can be used to finance 
the construction, rehabilitation, or acquisition of housing projects.  
HUD made two loans totaling $15,360,300 under Section 202 to appellants for the 
construction of a housing project for the elderly located in Philadelphia, Pennsylvania.  In 
conjunction with the loans, appellants and HUD entered into regulatory agreements, which 
set forth HUD rules for the property.  Appeal File, Exhibits 5, 6.  These agreements imposed 
obligations consistent with those set forth in the Housing Act of 1959, stating:  
[I]n consideration of the making of the loan by HUD and the 
disbursement of any part thereof, and in order to comply with 
the requirements of the Housing Act of 1959, and the 
Regulations adopted by the Secretary pursuant thereto, the 
Mortgagor agrees for itself, its successors and assigns, and any 
owner of the mortgaged property, that in connection with the 
mortgaged property and the project operated thereon and so long 
as the loan is outstanding [to fulfill specified obligations]. 
Id., Exhibits 5 at 1, 6 at 1.  Among other things, the agreements required appellants to:  (1) 
make all payments due under the note and mortgage; (2) establish a reserve fund for the 
replacement of structural elements and mechanical equipment of the project; (3) maintain the 
mortgaged premises in good and substantial repair; (4) charge rent for Section 8 units in 
accordance with the Housing Assistance Payments (HAP) contract and comply with the 
obligations of the HAP contract; (5) maintain the project in good repair and condition; and 
(6) contract for the professional management of the project in a manner satisfactory to HUD. 
Id.  Under the regulatory agreements, the Secretary has the authority to notify appellants of 
any violation of the provisions of the agreement. Appellants must correct any violations to 
the satisfaction of the Secretary.  
In addition to the regulatory agreements, appellants entered into HAP contracts with 
HUD under which HUD provided housing assistance payments on behalf of eligible families 
to enable them to lease units in the project.  Appeal File, Exhibits 7, 8.  Each agreement 
defined the purpose of the contract as follows:  

 
 
 
    
     
       
     
  
    
 
  
  
 
     
     
  
     
  
  
3 CBCA 1501 
The [HAP] Contract (Contract) is entered into between the 
United States of America acting through [HUD] and 
Opportunities for the Aging Housing Corporation (Owner), 
pursuant to the U.S. Housing Act of 1937 (Act), 42 U.S.C. 1437, 
et seq. and the Department of Housing and Urban Development 
Act, 42 U.S.C. 3531, et seq . The purpose of this Contract is to 
provide housing assistance payments on behalf of Eligible 
Families leasing decent, safe and sanitary units from the Owner. 
Id., Exhibits 7 at 1, 8 at 1. The HAP contracts, which were incorporated by reference by the 
regulatory agreements, required appellants to provide the tenants with certain services, 
maintenance, and utilities. The HAP contracts gave HUD the right to approve or disapprove 
of proposed rent adjustments as well as the right to obtain access to appellants’ premises, 
books, and records. In addition, HUD had the authority to determine if appellants’ actions 
failed to comply with the contracts.  The HAP contracts each contained a Dispute clause:  
Any dispute concerning a question of fact arising under this 
Contract which cannot be resolved by agreement between the 
HUD Field Office and the Owner may be submitted by the 
Owner to the Secretary of Housing and Urban Development. 
Both parties shall proceed diligently with the performance of the 
Contract and in accordance with the decision of the Field Office, 
pending resolution of the appeal.  
Id., Exhibits 7 at 14, 8 at 14.  
In June 2008, HUD conducted an on-site management and occupancy review, which 
resulted in appellants receiving a rating of “below average” on the projects’ general 
appearance and security rating.  As a result, HUD issued a notice dated September 26, 2008, 
terminating appellants’ authority to self-manage the project for failure “to maintain the 
mortgaged properties in good and substantive repair and condition,” in violation of the 
regulatory agreements.  Appeal File, Exhibit 1. Appellants appealed this notice to the HUD 
Director of the Philadelphia Multifamily Hub, and then to the HUD Regional Director, but 
the appeals did not succeed.  Id ., Exhibits 2, 3.  Appellants next sought review from the HUD 
Office of Hearings and Appeals, which denied the matter as not within that office’s 
jurisdiction. Appellants then filed an appeal with this Board, and seek to reverse the 
Director’s decision, a reinspection, and a “referral to the Department Enforcement Center” 
if necessary.  Complaint ¶ 19.  

     
      
 
       
 
      
 
  
4 CBCA 1501 
Discussion 
Respondent has raised the issue of whether this Board possesses subject matter 
jurisdiction to entertain this appeal. Any party may challenge subject matter jurisdiction at 
any point in a proceeding, and, if the jurisdictional facts alleged in the complaint are 
disputed, it is incumbent upon the appellant to come forward with evidence establishing 
subject matter jurisdiction.  Appellants bear the burden of establishing subject matter 
jurisdiction by a preponderance of the evidence.  McNutt v. General Motors Acceptance 
Corp ., 298 U.S. 178, 189 (1936);  Reynolds v. Army and Air Force Exchange Service , 846 
F.2d 746, 747 (Fed. Cir. 1988).  
The Board’s jurisdiction arises from section 3(a) of the CDA, which provides, in 
pertinent part:  
Unless otherwise specified herein, this chapter applies to any 
express or implied contract . . . entered into 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. § 602(a). The United States Court of Appeals for the Federal Circuit has held that 
the “unambiguous language” of the CDA “is limited to express or implied contracts for the 
procurement of services and property and for the disposal of personal property.  It does not 
cover all government contracts.”  Coastal Corp. v. United States , 713 F.2d 728, 730 (Fed. 
Cir. 1983).  The Federal Circuit has stated:  
In determining whether [appellant’s] contracts are within the 
scope of the Contract Disputes Act, we are mindful of the 
legislative intent behind that Act.  Congress created the Contract 
Disputes Act to promote economy, efficiency and effectiveness 
in the government’s procurement of goods.  Accordingly, the 
associated regulations emphasize the buyer-seller relationship. 

   
  
    
  
  
   
 
 
  
   
5 CBCA 1501 
G.E. Boggs & Associates, Inc. v. Roskens , 969 F.2d 1023, 1027 (Fed. Cir. 1992); see also 
Delta Steamship Lines, Inc. v. United States , 3 Cl. Ct. 559, 569 (1983) (“It is rather the 
conventional contract for the direct procurement of property, services and construction, to 
be used directly by the Government, which is the type of Government contract covered by 
the Act.”).  
Appellants assert that these contracts fall within the Board’s jurisdiction.  They 
contend that the agreements are government contracts in the “‘procurement of services or 
property’ sense and the regulatory agreements are the result of a solicitation by HUD for the 
procurement of services or property, the construction, alteration, repair, or maintenance of 
property, or for the disposal of personal property,” which, they assert, brings the agreements 
within the purview of the CDA.  Appellants’ Response to Motion to Dismiss for Lack of 
Jurisdiction at 7.  It is not clear, however, on what basis appellants contend that HUD 
solicited these services.  The terms of the agreements do not indicate that the parties intended 
HUD to procure services or property.  The intent is to provide government financing so that 
appellant can procure goods and services. 
In analogous cases, the HUD Board of Contract Appeals, one of our predecessor 
boards, held that it did not possess jurisdiction over HAP contracts, or over contracts between 
public housing authorities and their construction contractors, even though HUD funds the 
construction and has substantial administrative involvement under annual contribution 
contracts with the public housing authorities.  The Board held that these contracts are only 
“tangentially connected” with government procurement of goods and services, and, in reality, 
are more akin to grant or sociological-type contracts designed to accomplish government 
social policy goals.  See, e.g. , Blanco-Mora Enterprises, Inc. , HUD BCA  94-G-136-C5, 
94-3 BCA ¶ 26,974; New Era Construction, HUD BCA 88-3406-C6, 89-1 BCA ¶ 21,376 
(1988), aff’d , 890 F.2d 1152 (Fed. Cir. 1989); Kurtis R. Mayer and Pamela Mayer, d/b/a 
Mayer Built Homes , HUD BCA 83-823-C20, 84-2 BCA ¶ 17,494.  We find that rationale 
sound.   
Neither the regulatory agreements nor the HAP contracts are contracts for the 
procurement of property, services, construction, alteration, repair or maintenance of real 
property, or the disposal of personal property. 
1 They are, in essence, grant-type agreements 
with certain “strings” attached.  See, e.g. , Coastal Corp. , 713 F.2d at 730; Busby School of 
1 We note that the lack of a final decision from a HUD contracting officer 
conforming to the requirements of Section 6 of the CDA, 41 U.S.C. § 605, provides an 
additional ground for dismissal for lack of jurisdiction.    

________________________________ 
______________________________ _______________________________ 
 
6 CBCA 1501 
the Northern Cheyenne Tribe v. United States , 8 Cl. Ct. 596 (1985).  Under these 
circumstances, the Board cannot assume jurisdiction over this appeal.  
Decision 
The appeal is DISMISSED FOR LACK OF JURISDICTION . 
JERI KAYLENE SOMERS 
Board Judge 
We concur: 
ANTHONY S. BORWICK CANDIDA S. STEEL 
Board Judge Board Judge