David Boland, Inc. v. United States ( 2022 )

No. 22-131C
(Filed: Monday, October 17, 2022)
************************** 28 U.S.C 1491 (2018);
DAVID BOLAND, INC., Contract Disputes Act,
41 U.S.C. §§ 7101-09,
Plaintiff, 7103 (2018);
v. FAR 52.233-3;
Contracts; motion to
THE UNITED STATES, dismiss; subject matter
Defendant. jurisdiction; failure to
state a claim
**************************
Denis L. Durkin, Orlando, FL, for plaintiff. Michael S. Vitale and
Brian V. Johnson, of counsel.
Jimmy S. McBirney, Trial Attorney, United States Department of
Justice, Civil Division, Commercial Litigation Branch, Washington, DC,
with whom were Brian M. Boynton, Principal Deputy Assistant Attorney
General, Patricia M. McCarthy, Director, and Steven J. Gillingham,
Assistant Director, for defendant. Brett R. Howard, Deputy District Counsel
and James M. Inman, Trial Attorney, of counsel.
OPINION
BRUGGINK, Judge.
The United States, through the United States Army Corps of
Engineers, contracted with plaintiff, David Boland, Inc. (Boland), to
construct a new building for a “military and training center” in Dublin,
California. Pending is the government’s motion to dismiss four of the
complaint’s six counts, either for lack of subject matter jurisdiction or failure
to state a claim on which relief can be granted. The motion is fully briefed,
and oral argument was held on October 13, 2022. We grant in part and deny
in part.
BACKGROUND 1
This complaint arises out of a government contractor’s unsuccessful
requests for equitable adjustments (REA). The government awarded Boland
with Contract No. W912QR-16-C-0013 (the contract) to construct a new
building for U.S. Army Reserve personnel on July 6, 2016. The parties
encountered obstacles, which prompted Boland’s disputed REAs.
Bid Protest Delay (Counts I and II)
Shortly after the contract was awarded, an unsuccessful bidder filed a
protest with the Government Accountability Office (GAO). In compliance
with regulatory requirements, the government issued a notice to suspend
performance. 2 Several months later, GAO resolved the protest, and the
government issued a notice to proceed on November 28, 2016.
Boland believed that the bid-protest performance delay increased its
cost of performance. Particularly, Boland claimed that it could not “secure
certain previously selected subcontractors and suppliers” and “enter[ed] into
contracts with other companies at increased costs.” Compl. Ex. B. To recover
for those costs, Boland submitted an uncertified REA (2017 REA) for
$262,060 on October 25, 2017. Id.Not long after, the government informed Boland that its 2017 REA
needed to “provide actual quotes from [its] subcontractors and suppliers.”
Mot. to Dismiss App. 1. Boland could not, in its own view however, “isolate
the additional actual costs incurred” and instead used “published standards”
to estimate its increased costs. Compl. ¶ 22. Ultimately, Boland never
provided the government with actual cost data, leaving the issue unresolved. 3
1
The background is drawn from the complaint and the attached materials.
2
Under FAR 33.104(c)(1), the contracting officer “shall immediately
suspend performance” when the “agency receives notice of a protest from
the GAO.”
3
After several years, Boland eventually certified its 2017 REA and requested
a final decision, which the government never issued.
2
At an impasse, Boland submitted a second certified REA on
November 2, 2020 (2020 REA), seeking an additional $329,296 in
unabsorbed home office overhead incurred during the bid-protest delay.
Compl. Ex. C. While Boland still “maintain[ed] that there were significant
increased costs of construction,” it “resolved itself to the fact” that it cannot
“provide actual cost records.” Id. Nevertheless, it believed that the
government owed compensation for unabsorbed overhead. On February 9,
2021, the government issued a Contracting Officer’s Final Decision (COFD)
denying Boland’s 2020 REA because it was untimely and failed to meet the
regulatory requirements to recover unabsorbed overhead. 4
Power Delay (Counts III and IV)
Completion of the contract required a power supply to the
construction site. To supply the necessary power, the government was
required to contract with Pacific Gas and Electric Company (PG&E).
Setbacks ensued, and the provision of power was delayed. While the parties
dispute who was responsible for the power delay, they appear to agree on the
following facts.
PG&E needed to inspect the construction site. When PG&E inspected
the site, it noted several deviations from what the contract required. Boland
eventually corrected those variances, and the government then signed the
contract with PG&E. Despite site readiness, installation of the power
transformer was scheduled to take place in a couple of months. Both parties
understood that this timeframe would delay the project’s completion, but the
government claimed that nothing could be done to speed up the process. With
waiting being the only option, the transformer was installed 8 weeks later.
To recover for the extended project completion time in 2018, Boland
submitted a certified REA for $311,411.22 (Power REA), maintaining that
the power delay “was within the government’s responsibility.” Compl. Ex.
4
The contracting officer determined that the 2020 REA was untimely under
FAR 52.243-4, the FAR provision for “Changes.” While 52.243-4 was
inapplicable, a timeliness issue did exist. As we later discuss, REAs for bid-
protest delay must be submitted within 30 days of a notice to proceed under
FAR 52.233-3.
3
G. In its REA, Boland claimed that late power installation delayed the
project’s completion by 82 days. The government denied the REA and
instead agreed only to a non-compensable time extension. Unsatisfied with
the government’s offer, Boland hired an independent consulting firm, AM
Sist Consulting (AMS). AMS concluded that the government owed Boland
compensation for 70 additional days. Based on AMS’s report, Boland
resubmitted its REA in 2020 and requested an adjusted amount of $241,636.
The contracting officer denied Boland’s adjusted Power REA. In her COFD,
the contracting officer explained that it was Boland’s protracted site
preparation that delayed execution of the PG&E power supply contract.
CIP Wall Repair (Counts V and VI)
Construction of the building required Boland to install “cast in place”
(CIP) walls. After Boland installed part of the first wall, it discovered defects
and promptly notified the government. To assess the situation, Boland hired
an engineer who evaluated the wall’s defects and concluded that they did not
“impact the structural adequacy of the wall.” Compl. Ex. J (CIP Wall REA).
Despite the report, the government feared “increased liability” and issued a
stop-work order. Compl. ¶ 72. During that time, tests on the wall continued,
and Boland eventually addressed the faulty installation process successfully
with a revised concrete mix. See Compl. Ex. J. For the CIP walls already
installed, Boland compiled a supplementary report to demonstrate the wall’s
structural integrity and show that it could be adequately repaired. The
government agreed and lifted the stop-work order.
The engineering tests increased Boland’s costs. So too, did the stop-
work order delay. Hoping to recoup its losses, Boland submitted a certified
REA in 2018, and again in 2019, for $200,967 (CIP Wall REA). Negotiations
ensued, and a provisional agreement was reached. The agreement fell
through, however, over allegedly inaccurate scheduling information. In her
COFD, the contracting officer concluded that Boland was entitled to only
$18,975—the cost of certain tests which were performed at the government’s
request and outside of Boland’s contractual obligations.
Procedural History
Boland filed its complaint on February 8, 2022. It alleges in Counts I,
III, and V that it is entitled to equitable adjustments. Each REA-based count
4
has a parallel count—Counts II, IV, and VI—which asserts that the
government breached its implied duty of good faith and fair dealing. The
United States has moved to dismiss Counts I, II, IV, and VI for lack of subject
matter jurisdiction or failure to state a claim on which relief can be granted.
It has not moved to dismiss Counts III and V.
DISCUSSION
I. Subject Matter Jurisdiction
Like all federal courts, the Court of Federal Claims is one of “limited
jurisdiction” that is “defined . . . by federal statute.” Badgerow v. Walters,
142 S. Ct. 1310, 1315 (2022). The relevant jurisdictional statute here is the
Tucker Act, 28 U.S.C. § 1491 (2018), which “confers jurisdiction upon the
Court of Federal Claims over the specified categories of actions brought
against the United States,” Fisher v. United States, 402 F.3d 1167, 1172 (Fed.
Cir. 2005) (en banc). It includes actions against the United States founded on
“any express or implied contract with the United States.” § 1491(a)(1).
The Contract Disputes Act (CDA) “grants the court jurisdiction over
actions brought on claims within twelve months of a contracting officer’s
final decision.” James M. Ellet Const. Co. v. United States, 93 F.3d 1537,
1541 (Fed. Cir. 1996); 41 U.S.C. § 7104(b)(3). For jurisdictional purposes,
then, there must be “both a valid claim and a contracting officer’s final
decision on that claim.” M. Maropakis Carpentry, Inc. v. United States, 609
F.3d 1323, 1327 (Fed. Cir. 2010). The CDA does not define a “claim,”
though, so we must “look to the definition of ‘claim’ in the FAR.” Creative
Mgmt. Servs. v. United States, 989 F.3d 955 (Fed. Cir. 2021). Section 2.101
provides that a “[c]laim means a written demand or written assertion by one
of the contracting parties seeking, as a matter of right, the payment of money
in a sum certain, the adjustment or interpretation of contract terms, or other
relief arising under or relating to the contract.” 48 CFR § 2.101 (2021).
The plaintiff “bears the burden of establishing subject matter
jurisdiction by a preponderance of the evidence.” Reynolds v. Army & Air
Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). When a defendant
moves to dismiss for lack of subject matter jurisdiction, the court assumes
that the undisputed facts in the complaint are true and draws reasonable
inferences in the plaintiff’s favor. Acevedo v. United States, 824 F.3d 1365,
1368 (Fed. Cir. 2016).
5
In its motion to dismiss, the government argues that Count I (based
on the REAs for bid-protest delay) was improperly submitted to the
contracting officer because Boland did not present its REAs for increased
supplier costs and unabsorbed overhead at the same time. In Counts II, IV,
and VI (the claims for bad faith), however, the government argues that
Boland never submitted those claims to the contracting officer at all. The
issue, then, is whether Boland submitted valid claims to the contracting
officer.
A. Count I—Boland’s REAs for Bid-Protest Delay
In Count I—based on Boland’s 2017 REA for increased costs and its
2020 REA for unabsorbed overhead—Boland alleges that the government’s
“unilateral directive to suspend performance on the contract delayed the
project’s completion, increased Boland’s cost of construction, and
constituted a direct change to the Contract,” entitling it to an equitable
adjustment. Compl. ¶ 93.
The government moves to dismiss Count I for lack of subject matter
jurisdiction because Boland’s complaint seeks to impermissibly combine two
REAs into one. While Boland submitted two separate REAs to the
contracting officer (the 2017 and 2020 REAs), it now combines those two
REAs into one count. 5 The government argues this is impermissible because
the two claims were separately presented to the contracting officer, and this
court can only have jurisdiction if Boland presents those REAs as separate
counts. It also argues that this court cannot have jurisdiction over the 2017
REA because it was a “facially invalid claim” that failed to provide actual
cost data.
For jurisdictional purposes, all that the CDA requires is a “valid claim
and a contracting officer’s final decision on that claim.” Maropakis, 609 F.3d
at 1327. In this case, Boland satisfied those two jurisdictional requirements.
Boland’s 2017 and 2020 REAs (which together make up Count I) were
5
Within the same argument, the government asserts that Boland withdrew
its 2017 REA for increased subcontractor and supplier costs when it later
submitted its 2020 REA for only unabsorbed overhead. We find no merit in
this argument. In its 2020 REA, Boland stated that it still “maintain[ed] that
it was entitled to” recover increased costs of construction. Compl. Ex. C.
6
certified claims submitted to the contracting officer, and Boland filed its
complaint within 12 months of the contracting officer’s final decision or lack
thereof. These undisputed facts are all that are necessary to establish
jurisdiction over Count I.
About the government’s suggestion that Boland needed to submit one
combined claim to the contracting officer, we know of no such requirement.
Not only does the government’s position lack support in the CDA—which
does not speak to how counts must be structured—but it also subverts the
CDA’s purpose. Requiring Boland to resubmit two previously denied
certified claims as one would be “inimical to two goals of the CDA:
providing for the efficient and fair resolution of contract claims.” Reflectone,
60 F.3d at 1580; cf. Ellett, 93 F.3d at 1545 (stating that it would be a “futile
act” for a contractor to formally submit a claim to the contracting officer after
the contracting officer has already made a final determination). All that the
CDA requires is that a contracting officer have the first opportunity to review
a contractor’s claim. Scott Timber Co. v. United States, 333 F.3d 1358, 1366
(Fed. Cir. 2003). The contracting officer had that opportunity here, so
Boland’s resubmission of one combined REA would serve no purpose.
Finally, there is no merit to the government’s argument that Boland’s
2017 REA was a “facially invalid claim” because it failed to include actual
cost data. “[N]either the CDA nor its implementing regulations . . . requires
submission of a detailed cost breakdown or other specific cost-related
documentation with the claim.” H.L. Smith, Inc. v. Dalton, 49 F.3d 1563,
1564 (Fed. Cir. 1995). An REA satisfies the definition of a claim, Reflectone,
Inc. v. Dalton, 60 F.3d 1572, 1577 (Fed. Cir. 1995), and nothing more is
required, Maropakis, 609 F.3d at 1327. Thus, this court has jurisdiction over
Count I, and we deny the government’s motion to dismiss it.
B. Counts II, IV, and VI—Boland’s Claims for Breach of Implied Duties
Boland asserts in these three counts that the government breached its
implied duty of good faith and fair dealing. The government counters that
Boland never presented these claims for breach to the contracting officer. We
must decide, then, whether Boland’s implied duty claims are “based on [a]
claim previously presented to and denied by the contracting officer.” Scott
Timber, 333 F.3d at 1365.
“[T]wo claims may be considered the same for CDA jurisdictional
purposes if they arise from the same operative facts, claim essentially the
7
same relief, and merely assert differing legal theories for that recovery.”
Kiewit Infrastructure W. Co. v. United States, 972 F.3d 1322, 1328 (Fed. Cir.
2020) (internal quotations omitted). In Reliance Insurance Company v.
United States, the Federal Circuit explained that a request for equitable
adjustment is not a “clear and unequivocal claim” for a violation of the “duty
of good faith.” 931 F.2d 863, 866 (Fed. Cir. 1991). On that basis, the court
determined that it had no jurisdiction to consider any separate claims based
on breach of contract for good faith and fair dealing. Id. We do not read
Reliance to mean that an REA can never be a clear and unequivocal claim
for breach of contract. Cf. Crown Coat Front Co. v. United States, 386 U.S.
503, 511 (1967) (“[T]he contractor has agreed in effect to convert what
otherwise might be claims for breach of contract into claims for equitable
adjustment.”). Rather, Reliance simply rejects the position that an REA is by
itself also a claim for breach of contract. We therefore must engage in a fact-
based inquiry to determine whether Boland’s claims for breach of contract
are the same as its requests for equitable adjustments. We address each claim
in turn.
1. Count II—Bid-Protest Delay
Three things must be true for two claims to be considered the same:
(1) the claims are based on the same operative facts; (2) the claims seek
essentially the same relief; and (3) the claims assert the same or similar legal
theory for relief. See Kiewit, 972 F.3d at 1328. First, the 2017 REA, which
sought to recover only for increased subcontractor and supplier costs. The
government denied Boland’s 2017 REA for failure to provide actual cost
data. Boland argues in this court that the government breached its duty of
good faith and fair dealing because its denial was “pretextual” since the
government knew that providing actual cost data was not possible. Compl. ¶
21.
“Operative facts are the essential facts that give rise to a cause of
action.” Renda Marine, Inc. v. United States, 71 Fed. Cl. 378, 389 (2006).
The operative facts necessary to establish a claim that the government has
breached its implied duties include whether the government “destroy[ed] the
reasonable expectations of the other party,” or “interfere[d] with or fail[ed]
to cooperate in the other party’s performance.” Centex Corp. v. United States,
395 F.3d 1283, 1304 (citing Restatement (Second) of Contracts, § 205
(1981)). By contrast, a claim to recover increased costs incurred from bid-
protest delay need only show a causal relationship between the “stop-work
8
order” and an “increase” in “the Contractor’s cost[s].” FAR 52.233-3.
As Boland appeared to concede at oral argument, its 2017 REA “did
not include the operative facts underlying a breach of the duty of good faith
and fair dealing.” Walsh Constr. Co. v. United States, 132 Fed. Cl. 282, 291
(2017). Instead, Boland merely informed the government of “price increases”
and requested an equitable adjustment. Compl. Ex. E. Nothing in Boland’s
2017 REA suggests that the government acted in bad faith or “pretextual[ly].
Compl. ¶ 21. At best, Boland’s request for a final decision simply
acknowledged that the government demanded actual cost data. But that
acknowledgment, by itself, is not a “clear and unequivocal statement that
gives the contracting officer adequate notice of the basis . . . of the claim.”
Scott Timber, 333 F.3d at 1365.
Next, the 2020 REA. Boland’s 2020 REA requested reimbursement
for its unabsorbed overhead during the bid protest. Compl. Ex. C. Boland
argues now that the government breached its duty of good faith and fair
dealing by erroneously denying the 2020 REA.
We can readily reject this argument. To establish jurisdiction,
Boland’s claim to the contracting officer must allege bad faith (or at least the
same operative facts). Maropakis, 609 F.3d at 1327. Yet Boland does not
point to its claim. It curiously points instead to the contracting officer’s final
decision, arguing that the contracting officer’s misapplication of the law was
in bad faith. But an erroneous decision—even the most egregious—could not
itself be part of the original claim submitted to the contracting officer. More
to the point, this court “does not review the CO’s decision; it conducts de
novo review of the claims that were put before the CO.” Accord HCIC
Enterprises, LLC v. United States, 149 Fed. Cl. 297, 301 (2020) (emphasis
added); Bell/Heery v. United States, 106 Fed. Cl. 300, 308 (2012) (“This
court hears suits directly on the claim, not appeals of contracting officers’
decisions.” (internal quotations omitted)). We have jurisdiction to review
only Boland’s claim to the contracting officer, and that claim did not include
a breach of the implied duty of good faith. Thus, we dismiss Count II for lack
of subject matter jurisdiction.
2. Count IV—Permanent Power Delay
The impediments to securing power for the construction site delayed
the project’s completion. Boland’s Power REA claimed that it “was within
the government’s responsibility” to reach an agreement with PG&E to
9
maintain schedule. Compl. Ex. G. Similarly, in Count IV of Boland’s
complaint, it argues that the government’s “inability to timely enter into an
agreement with PG&E . . . constitute[d] a breach of the duty of good faith
and fair dealing.” Compl. ¶ 105.
Boland’s Power REA does not rest on the same operative facts as a
breach of implied duties claim nor was the latter claim expressly presented
to the contracting officer. To recover for performance delay, a contractor
must “establish the extent of the delay, the contractor’s harm resulting from
the delay, and the causal link between the government’s wrongful acts and
the delay.” Essex Electro Engineers, Inc. v. Danzig, 224 F.3d 1283, 1295
(Fed. Cir. 2000). On the other hand, a breach of implied duties claim looks
to whether the government destroyed the reasonable expectations of the other
party or interfered with or failed to cooperate in the other party’s
performance. While these may sound similar, a breach of the implied duty of
good faith requires something more. Courts “presum[e] that government
officials act in good faith.” Am-Pro Protective Agency, Inc. v. United States,
281 F.3d 1234, 1239 (Fed. Cir. 2002). To prevail, a contractor must show
“that the government had a specific intent to injure it.” Caldwell & Santmyer,
Inc. v. Glickman, 55 F.3d 1578, 1581 (Fed. Cir. 1995).
Here, Boland asserts facts that, if proven, would entitle it to recover
for performance delay. Even so, Boland’s Power REA contains nothing to
suggest that “the government had a specific intent to injure it.” Id. A charge
that the government did not satisfy its contractual obligations, without more,
is not “specific enough to give the officer notice of [a claim of failure to act
in good faith] and allow him to make an informed judgment.” Monterey
Consultants, Inc. v. United States, 159 Fed. Cl. 641, 651 (2022). For that
same reason, Boland also could not have expressly presented the claim, as it
would have required Boland to allege a specific intent to injure. As a result,
Boland’s Power REA is not the same as a claim for breach of implied duties
nor was it expressly presented to the contracting officer. We therefore
dismiss Count IV for lack of subject matter jurisdiction.
3. Count VI—CIP Wall Delay
Finally, in Boland’s CIP Wall REA, Boland alleged that the
government’s suspension of work was unwarranted and unreasonable.
Compl. Ex. J. In Count VI, however, Boland claims that the government’s
“inability to engage [with Boland] in a timely manner,” “its unjustified and
10
unsupported stop work order,” “its denial of Boland’s REA,” and “its
repudiation of [the provisional] agreement” all violated the government’s
duty of good faith and fair dealing. Compl. ¶ 112.
Once again, Boland’s breach of good faith claim does not rest on the
same operative facts as the CIP Wall REA. While Boland’s CIP Wall REA
may have asserted the operative facts for a performance-delay claim, it did
not include an assertion that “the government had a specific intent to injure
it.” Caldwell & Santmyer, 55 F.3d at 1581. For that reason, its CIP Wall REA
and its implied duty claim are not the same. Thus, we dismiss Count VI for
lack of subject matter jurisdiction.
II. Failure to State a Claim 6
The government moves to dismiss Count I for failure to state a claim.
Count I involves Boland’s 2017 and 2020 REAs for increased subcontractor
and supplier costs and unabsorbed overhead incurred during the bid-protest
delay.
On a Rule 12(b)(6) motion to dismiss, the court will “consider the
complaint in its entirety, as well as other sources courts ordinarily examine
when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents
incorporated into the complaint by reference, and matters of which a court
may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007). The court accepts as true the “well-pleaded factual
allegations” in the complaint and determines whether those allegations
“plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009). If the well-pleaded facts asserted by the plaintiff do not
“entitle him to a remedy” under the law, the claim should be dismissed. Perez
v. United States, 156 F.3d 1366, 1370 (Fed. Cir. 1998).
Under FAR 52.233-3, a contractor is entitled to an equitable
adjustment for bid-protest delay if two things are true: (1) the “stop-work
order” increased the contractor’s cost of performance; and (2) the contractor
“asserts its right to an adjustment within 30 days” of the notice to proceed,
or the contracting officer “act[s] upon” an untimely proposal. FAR 52.233-
6
Because we conclude that we have no jurisdiction over Counts II, IV, and
VI, we do not decide whether they state a claim. We review only Count I—
the only remaining count subject to the motion to dismiss.
11
3(b). This seemingly straightforward provision is at the center of the current
controversy.
The parties do not dispute that Boland’s bid-protest REAs were
untimely. They disagree, however, over whether Boland’s failure to comply
with the deadline bars the claim. In the government’s view, the claims were
late, and the contracting officer did not “act upon” either proposal. On the
other hand, Boland argues that its untimeliness is not dispositive—not
because the contracting officer acted on the proposal, but because the
regulation “does not speak to what happens if a claim is not made within 30
days.” Pl.’s Resp. 29.
We are unpersuaded by Boland’s strained reading of FAR 52.233-3.
Despite Boland’s suggestion to the contrary—for which it cites no supporting
authority—the regulation does speak to untimely claims. The regulation
explains that a contractor is entitled to an equitable adjustment only “if” the
request is brought within 30 days after work resumes or the contracting
officer acts upon the untimely claim. FAR 52.233-3(b)(2). And when
interpreting a statute, “we look first to the word’s ordinary meaning.”
Mohamad v. Palestinian Auth., 566 U.S. 449, 454 (2012) (using dictionaries
to determine ordinary meaning). With that in view, the word “if”
“introduc[es] a clause of condition,” If, Oxford Dictionary, (2d online ed.
1989), which is “[s]omething demanded or required as a prerequisite to the
granting or performance of something else,” Condition, Oxford Dictionary
(2d online ed. 1989). Simply put, the regulation means what it says: if the
contractor does not submit the REA within 30 days, the government may
adjust the contract, but it is not required to. Compliance with the provision is
therefore a precondition to bringing a claim.
Finally, to bypass FAR 52.233-3 altogether, Boland appears to take
the CDA where no contractor has taken it before. The CDA in effect
preempts FAR 52.233-3 because the CDA allows a contractor to “bring an
action directly on the claim in the United States Court of Federal Claims,
notwithstanding any contract provision, regulation, or rule of law to the
contrary.” § 7104(b) (emphasis added). Yet there is no case where Section
7104(b) acted as an “ace in the hole” with the power to trump seemingly
nettlesome FAR provisions. Instead, this court has consistently interpreted
Section 7104(b) to be only jurisdictional and presupposes a valid claim
exists. See, e.g., Westdale N.W. Ctr. v. United States, 154 Fed. Cl. 557, 576
(2021). Boland has no underlying claim, and Section 7104(b) cannot provide
12
it with one.
It is undisputed that Boland failed to present either bid-protest REA
to the contracting officer within 30 days of the notice to proceed. As a result,
Count I fails to state a claim, and it must be dismissed.
CONCLUSION
For the reasons stated above, the government’s motion to dismiss is
granted in part and denied in part. Counts II, IV, and VI are dismissed for
lack of subject matter jurisdiction. Count I is dismissed for failure to state a
claim. The parties are directed to file a joint status report regarding further
proceedings on or before November 15, 2022.
s/Eric G. Bruggink
ERIC G. BRUGGINK
Senior Judge
13