MOTION FOR RECONSIDERATION DENIED:
August 18, 2015
CBCA 3905
COOLEY CONSTRUCTORS, INC.,
Appellant,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
Anton J. Rupert of Crowe & Dunlevy, P.C., Oklahoma City, OK, counsel for
Appellant.
Elyssa Tanenbaum, Office of General Counsel, General Services Administration,
Washington, DC, counsel for Respondent.
Before Board Judges SOMERS, STERN, and GOODMAN.
GOODMAN, Board Judge.
This appeal, filed in the name of the contractor, Cooley Constructors, Inc. (Cooley or
appellant), was from a final decision by the contracting officer of respondent, the General
Services Administration (GSA).  Respondent filed a motion to dismiss the appeal for lack
of jurisdiction, and we denied that motion in our decision dated June 8, 2015.  Cooley
Constructors, Inc. v. General Services Administration, CBCA 3905, 15-1 BCA ¶ 36,001.
Respondent has filed a motion, pursuant to CBCA Rules 26 and 27, for reconsideration of
and relief from that decision.

CBCA 3905 2
Background
In our previous decision, this Board held that there was jurisdiction over this appeal
pursuant to the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2012).  The
contractor had authorized the subcontractor to file the notice of appeal in the contractor’s
name, the notice of appeal was filed in the contractor’s name, and appellant’s attorney filed
a subsequent notice of appearance which complied with CBCA Rule 5, 48 CFR 6101.5
(2014).1  The filing of the notice of appearance by appellant’s attorney affirmed the prior
authorization by the prime contractor to the subcontractor to file the appeal in the name of
the contractor.  As these circumstances supported sponsorship of the subcontractor’s appeal
by the prime contractor, there was jurisdiction pursuant to the CDA.
Discussion
Respondent’s motion asserts that this Board committed an error of law in its decision
by improperly enlarging Congress’s limited waiver of sovereign immunity and contravening
Congress’s expressed intent to preclude a subcontractor from having direct access to
administrative remedies under the CDA.  Respondent includes a discussion of legislative
history of the CDA and case law upholding the proposition that only a contractor can be a
party to an appeal, and a subcontractor can participate only if the contractor sponsors the
subcontractor’s claim against the Government.  The facts of this appeal, as stated above, do
not contravene the legislative history or case law cited.
In further support of its motion, respondent cites several decisions that are not
applicable to the factual circumstances in this appeal, as the subcontractors in those cases
filed the appeals in their own names and not in the names of the contractors.
In United States v. Johnson Controls, Inc., 713 F.2d 1541 (Fed. Cir. 1983), cited by
respondent, the Court held that the Armed Services Board of Contract Appeals (ASBCA)
lacked jurisdiction over an appeal filed directly by a subcontractor in its own name, as a
subcontractor was not a “contractor” pursuant to the CDA.
1  Rule 5 provides, in part, that “[a]ny appellant . . . may appear before the Board by
an attorney-at-law licensed to practice in a state, commonwealth, or territory of the United
States, or in the District of Columbia.”

CBCA 3905 3
Respondent also relies upon Erickson Air Crane Co. of Washington, Inc. v. United
States, 731 F.2d 810 (Fed. Cir. 1984).  The Court held that the Energy Board of Contract
Appeals erred when it “used language implying that subcontractors were appellants.  Counsel
entered appearances for them and the board made awards to them.”  Id. at 813.  In Erickson,
the Court stated further:
Notice is hereby given that in future contract cases in this court, only the prime
contractor may be the appellant, absent, of course, special contract or
regulatory provisions not here involved which, in some other cases, might
confer standing on subcontractors or persons who normally would be deemed
only subcontractors. . . . A party in interest whose relationship to the case is
that of the ordinary subcontractor may prosecute its claims only through, and
with the consent and cooperation of, the prime, and in the prime’s name.
Id. at 814.
In our decision, we referred to decisions of the ASBCA in which the factual
circumstances supported the conclusion that the contractor had, in fact, sponsored the
subcontractor’s claim, thus providing the Board with jurisdiction.  In particular, we found
persuasive the similar circumstances and reasoning in Holmes & Narver Services, Inc.,
ASBCA 51155, 00-2 BCA ¶ 30,972.
In its motion for reconsideration, respondent stated: 
In these decisions, the ASBCA took an overreaching stance on jurisdiction
over subcontractor appeals.  The Board failed to recognize that, after these
decisions, in 2009, the ASBCA was overruled by the Federal Circuit in
[Winter v.] FloorPro, Inc., 570 F.3d 1367 [(Fed. Cir. 2009)], on this stance.
Contrary to respondent’s assertion, the court in FloorPro did not overrule the ASBCA
decisions we cited.  Rather, the issue involved was stated by the Court as follows:
In this case, we are presented with the question of whether the Contract
Disputes Act of 1978 . . . gives the Armed Services Board of Contract Appeals
. . . jurisdiction over a claim against the government brought by a
subcontractor that is a third-party beneficiary of a contract between the
government and the prime contractor.  For the reasons stated below, we hold
that it does not.
570 F.3d at 1368.

CBCA 3905 4
In that case, FloorPro, a subcontractor, brought an appeal in its own name at the
ASBCA, and that board found jurisdiction based upon the legal theory that the subcontractor
was a third-party beneficiary of the prime contract.  The Court reversed, holding that “those
who are not in privity of contract with the government cannot avail themselves of the CDA’s
appeal provisions.”  570 F.3d at 1371.  The FloorPro decision did not, as respondent asserts,
address the factual circumstances present here or in the ASBCA cases that we cited
previously that support our earlier decision.
Respondent has not stated sufficient grounds for reconsideration of or relief from the
Board’s decision.
Decision
Respondent’s motion is DENIED.
__________________________
ALLAN H. GOODMAN
Board Judge
We concur:
__________________________ __________________________
JERI KAYLENE SOMERS JAMES L. STERN
Board Judge Board Judge