DISMISSED IN PART FOR LACK OF JURISDICTION: December 9, 2024

DISMISSED IN PART FOR LACK OF JURISDICTION: December 9, 2024

CBCA 8148

CARING HEARTS EMS, INC.,

Appellant,

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent.

Jason A. Blindauer of Blindauer Law PLLC, Washington, DC, counsel for Appellant.

Kathleen Ramos, Office of General Counsel, Department of Veterans Affairs,

Arlington, TX, counsel for Respondent.

Before Board Judges GOODMAN, SULLIVAN, and CHADWICK.

CHADWICK, Board Judge.

Appellant, Caring Hearts EMS, Inc. (Caring Hearts), provided shuttle bus service to

respondent, Department of Veterans Affairs (VA). Caring Hearts seeks damages for breach

of the implied duty of good faith and fair dealing and for wrongful refusal to exercise an

option year of the contract. VA moves to dismiss part of the appeal for lack of jurisdiction

and seeks judgment on the merits as to the remainder of the case.

We grant the motion in part. We dismiss a portion of count one of the complaint for

lack of jurisdiction. We deny VA’s motion as to merits issues.

CBCA 8148

2

Background

We deem the following facts to be undisputed based on VA’s statement of undisputed

material facts, Caring Hearts’s statement of genuine issues, and evidence cited therein.

See Board Rule 8(f)(1), (2) (48 CFR 6101.8(f)(1), (2) (2023)).

VA awarded Caring Hearts the contract, which was for commercial services, in March

2022.1 The contract included a base year and four option years. It required Caring Hearts

to “provide” five buses of a specified capacity in order to shuttle passengers from 6:00 a.m.

to 5:30 p.m. on business days between a “parking deck” at the Birmingham (Alabama) VA

Medical Facility and the main facility. Buses were to depart the parking area at fifteenminute intervals on a schedule to be agreed upon “prior to the implementation of the

service.” We review the contract requirements in greater detail below.

VA exercised the option for the first option year but not for the second. In

January 2024, VA formally advised Caring Hearts “that the Government does not intend to

exercise option year 2” and the contract would conclude at the end of March 2024.

In February 2024, Caring Hearts submitted a certified claim signed by its proprietor.

The claim sought “the completion of” a previously discussed contract modification to add

“an additional bus,” “repayment of monies deducted from our pay, payment of our invoice

for the supplemental use of our shuttle bus, and extension of the remaining option years.”2

According to the claim, the parties disagreed about whether the contract required five shuttle

buses to run continuously or if, instead, Caring Hearts could operate four buses and hold one

out of service for contingencies such as breakdowns. Caring Hearts alleged that it had “never

been able to perform with operational autonomy as the service line has always required the

use of all 5 shuttle buses for in service runs which contradicts the implementation meeting

understanding, as well as the approved [course of action].” Caring Hearts also complained

of late payments. The amount demanded in the claim (along with an exercise of the option

1

The contract incorporated the commercial Changes clause, 48 CFR 52.212-4(c)

(2021), discussed in MPG West, LLC, ASBCA 61100, et al., 20-1 BCA ¶ 37,739, at 183,151

(noting lack of precedent as to whether the clause permits constructive changes), aff’d in

non-relevant part, vacated in non-relevant part, and remanded sub nom. MPG West, LLC

v. Secretary of Defense, 2024 WL 2239021 (Fed. Cir. May 17, 2024).

2

The claim set out four “requests” in section headings: (1) “Contract

Modification”; (2) “Under what authority were the actions taken to reduce our payments

granted?”; (3) “Payment of invoice for the supplemental use of our shuttle bus”; and

(4) “Contract Extension of Option Year 2.”

CBCA 8148

3

to extend the now-expired contract) was “a rate of $10,024.80 per month” from the start of

the contract through the claim date.

The VA contracting officer granted the claim in part but mostly denied it. He

tentatively agreed, “pending verification,” that VA could owe Caring Hearts interest on

delayed payments on three invoices. He otherwise denied the claim on the grounds that

(1) “[t]he need for a contingency/back-up plan referenced in” the contract “is a separate

requirement and unrelated to the need for five shuttle buses” and (2) the standard option

clause at 48 CFR 52.217-9 (2021), incorporated in the contract, gave the agency “sole

discretion to determine whether to exercise any option period.”

Caring Hearts timely filed this appeal and, subsequently, the complaint.

See Rule 6(a). The complaint is lengthy (111 paragraphs), includes more factual allegations

than did the certified claim, and presents new legal theories. The complaint has two counts.

Count one alleges that VA “wrongfully changed the contract” in various respects in breach

of the duty of good faith and fair dealing. Count two alleges that VA “abused its discretion”

by not exercising the next option year. Caring Hearts alleges in the complaint that “VA is

liable . . . for the additional costs (plus reasonable profit) stemming from the changes” as

well as for “damages for the unexercised option periods [sic], including . . . lost profits.” The

complaint does not allege any presently overdue payments or seek interest on late payments.3

VA filed a dispositive motion in lieu of an answer. VA seeks dismissal of the

complaint in part for lack of jurisdiction, dismissal in part for failure to state a claim on

which the Board could grant relief, and partial summary judgment. Caring Hearts opposes

“each and every part” of the motion.

Discussion

The Board Lacks Jurisdiction to Address New Theories of Relief in Count One

VA argues that we lack jurisdiction to address the first count of the complaint, which

invokes the duty of good faith and fair dealing, because that count contains “new allegations”

that “were never presented . . . in a claim.” We agree in part.

Under the Contract Disputes Act, 41 U.S.C. § 7105(e)(1)(B) (2018), the jurisdictional

issue is not whether Caring Hearts makes new “allegations” but whether the appeal is

“limit[ed] . . . to the same claim or claims” that the contracting officer received. Quality

3

VA states and Caring Hearts admits that VA corrected underpayments on three

invoices, with interest, by the end of April 2024.

CBCA 8148

4

Control International v. General Services Administration, CBCA 5008, 17-1 BCA ¶ 36,675,

at 178,588. “A claim is new when it ‘present[s] a materially different factual or legal theory’

of relief.” Lee’s Ford Dock, Inc. v. Secretary of the Army, 865 F.3d 1361, 1369 (Fed. Cir.

2017) (quoting K-Con Building Systems, Inc. v. United States, 778 F.3d 1000, 1006 (Fed. Cir.

2015)). Consequently, a claimant may add details to a claim on appeal but may pursue only

theories of relief that materially resemble ones that were discernable in its claim. E.g., Active

Construction, Inc. v. Department of Transportation, CBCA 6597, 21-1 BCA ¶ 37,905, at

184,097–98 (“Simply because both [a new] claim and [an earlier] claim can be described as

involving good faith and fair dealing duty breaches does not mean that they are one and the

same,” where “discovery necessary for the new claim [would be materially] different.”);

A-Son’s Construction, Inc. v. Department of Housing & Urban Development, CBCA 3491,

et al., 15-1 BCA ¶ 36,089, at 176,203–04 (finding no “jurisdictional basis” to address a new

theory of relief where “the contracting officer would have [had] to review different . . . files”

to address it), clarified on reconsideration, 15-1 BCA ¶ 36,184.

VA lists five “allegations” that it sees in count one of the complaint and that it argues

impermissibly appear in the complaint “for the first time”: “(1) . . . this Contract was a

personal services contract . . . ; (2) . . . changes [were made] to the Contract regarding

back-up vans vs. buses; (3) . . . there was no permanent schedule for the shuttle buses;

(4) . . . joint employer liability [arose] between Caring Hearts and the VA; and (5) . . . [the]

requirement change[d] to 6 or 7 shuttle buses.”

Caring Hearts disavows pursuing the first, fourth, and fifth allegations, which would

be new legal theories. Accordingly, we do not consider those theories part of the appeal and

need not address them further. This leaves for consideration the second and third allegations,

involving “back-up vans” and “no permanent schedule.” Such allegations do appear in count

one.4 We agree with VA that they raise jurisdictional concerns.

The certified claim sought compensation for the daily use of a fifth shuttle bus that

Caring Hearts does not think the contract required to be in active rotation. The claim, unlike

the complaint, sought no relief relating to vans or a fluctuating schedule. Caring Hearts

admits as much but relies on evidence of prior correspondence—“with citations . . . so

numerous that they must be . . . [in] footnotes”—to show that the contracting officer was

“aware of” disagreements about van use and the schedule before he received the claim.

“[E]ven if the claim lacks details,” Caring Hearts argues, “adequate notice to the Contracting

Officer” of the two issues “was achieved in the communications leading to the claim.”

4

Caring Hearts alleges in count one, among other things, that (1) “[n]othing in

the contract stated that the [required] back-up [service] could not be vans,” (2) VA “violated

the contract by refusing to agree to a permanent schedule,” and (3) “Caring Hearts is not

limited to the quantum sought in the [certified] claim.”

CBCA 8148

5

We disagree. Caring Hearts relies on decisions that teach that “[t]o determine the

basis of [a] claim, the Board may consider the correspondence between the parties.” Quality

Trust, Inc. v. Department of the Interior, CBCA 7451, 24-1 BCA ¶ 38,548, at 187,362 (citing

French Construction LLC v. Department of Veterans Affairs, CBCA 6490, 22-1 BCA

¶ 38,164, at 185,340; SRA International, Inc. v. Department of State, CBCA 6563, et al., 20-1

BCA ¶ 37,543, at 182,312); see also L-3 Communications Integrated Systems, L.P., ASBCA

60713, et al., 17-1 BCA ¶ 36,865, at 179,626 (“The minimal amount of information sufficient

to provide adequate notice [of a claim] is quite low.”). As such cases show, we may examine

contemporaneous writings to interpret or illuminate the content of a presented claim. See,

e.g., French Construction, 22-1 BCA at 185,340 (holding “the Board possessed jurisdiction

over . . . claims . . . [that] were . . . mentioned in the document that became the claim”); SRA

International, 20-1 BCA at 182,312 (“[A]ttached to, if not incorporated into, the two

contracting officers’ decisions was the . . . audit report that formed the basis of the

Government’s claims.”).

We may not, however, impute material into a claim that is not there. E.g., Lee’s Ford

Dock, 865 F.3d at 1370 (the “certified claim did not allege that the Corps had knowingly

misrepresented” a fact and so “did not set forth operative facts supporting [a] later claim of

misrepresentation”); CB&I AREVA MOX Services, LLC v. Department of Energy, CBCA

5395, 17-1 BCA ¶ 36,591, at 178,217 (2016) (“The operative facts supporting the claim as

presented require only an analysis of the contractual language . . . . [Other] actions, regarding

implementation . . . , are an entirely separate matter from the [claim].”). We cannot disregard

the “elementary” requirements that “the claim must be in writing and submitted to the

contracting officer for a decision. If for more than [the small claims limit], the claim must

also be certified.” Santa Fe Engineers, Inc. v. United States, 818 F.2d 856, 858 (Fed. Cir.

1987) (citation omitted); see 41 U.S.C. § 7103(a), (b). Grounds for relief that are not

presented in a written claim are neither part of it nor covered by the certification. Even if we

rely on background information to construe it, a claim must “give[] the contracting officer

adequate notice of [its] basis and amount.” Contract Cleaning Maintenance, Inc. v. United

States, 811 F.2d 586, 592 (Fed. Cir. 1987).

The certified claim here did not notify VA that Caring Hearts sought any money

relating to van use or an unsettled schedule. Evidence that the parties had discussed those

matters does not alter the claim—and, if anything, tends to undermine Caring Hearts’s notice

argument, as one might have expected Caring Hearts to raise the issues again in a claim had

it intended to assign dollar values to them. Thus, we lack jurisdiction in part with regard to

count one. E.g., ELA Group, Inc. v. Department of Labor, CBCA 8235, slip op. at 7 (Nov.

22, 2024) (“[The] claim does not address liquidated damages. We lack jurisdiction to

entertain that issue in this appeal.”). Caring Hearts fails to show that we may consider its

CBCA 8148

6

new allegations about van use and scheduling as being among the ways that VA allegedly

breached the duty of good faith and fair dealing.5

We do not lack jurisdiction as to count one as a whole. Count one also alleges, among

other things, that VA breached the contract by requiring five shuttle buses in daily service.

The operative facts of that dispute were presented in the claim without the legal label.

Cf. NoMuda, Inc. v. Department of Homeland Security, CBCA 7999, 24-1 BCA ¶ 38,662,

at 187,945; Quality Control International, 17-1 BCA at 178,588–89.

The Required Number of Buses in Active Service Is Ambiguous

VA also challenges count one on the merits, albeit obliquely. The agency cites the

certified claim and asks us to “dismiss th[e] portion of the claim” in which Caring Hearts

argued that the contract did not require five continuously active buses “for failure to state a

claim on which relief can be granted.” (emphasis added). The claim is not something the

Board would “dismiss,” however, because it is not a pleading. Mission Support Alliance,

LLC v. Department of Energy, CBCA 6477, 22-1 BCA ¶ 38,033, at 184,711 (2021) (limiting

“motions to dismiss [to] claims that are asserted, or at least incorporated, in pleadings. . . .

[W]e would not entertain a motion to ‘dismiss’ the contracting officer’s decision [on a

government claim].”); see also Akal Security, Inc. v. Department of Homeland Security,

CBCA 3389, 14-1 BCA ¶ 35,532, at 174,132 (“A motion to dismiss is appropriate if the

Board can decide the appeal on the pleadings.” (emphasis added)).

Caring Hearts’s pleading is its complaint. Count one of the complaint alleges breach

of the duty of good faith and fair dealing. This breach theory involves the dispute about the

required number of buses in operation but may involve more than that. To advance the case,

we treat VA’s motion to “dismiss” some of the certified claim as a motion for partial

summary judgment on a contract interpretation issue relevant to count one. This conversion

results in no prejudice to Caring Hearts because we deny VA’s motion as we construe it.

Cf. 1000-1100 Wilson Owner, LLC v. General Services Administration, CBCA 6506, 20-1

BCA ¶ 37,642, at 182,764 (converting a motion to dismiss to a motion for summary

judgment, which the Board denied after considering evidence “about which [non-movant]

had notice and the review of which benefits [non-movant]”).

“[S]ummary judgment on . . . part of” a case is warranted if the movant “is entitled

to judgment” on that part “as a matter of law based on undisputed material facts.” Rule 8(f);

e.g., In re Methyl Tertiary Butyl Ether Products Liability Litigation, 824 F. Supp. 2d 524,

533 (S.D.N.Y. 2011) (“Summary judgment is not an all-or-nothing proposition.”). The

5

References to vans in the contract could, nonetheless, be relevant to the legal

theory that VA required too many active shuttle buses.

CBCA 8148

7

Board’s agreement with a party’s contract interpretation can render “any facts in dispute . . .

immaterial.” Mission Support Alliance, LLC v. Department of Energy, CBCA 6476, et al.,

22-1 BCA ¶ 37,998, at 184,529 (2020). We may not, however, weigh evidence on summary

judgment to determine the meaning of an ambiguous contract. E.g., CFP FBI-Knoxville,

LLC v. General Services Administration, CBCA 5210, 17-1 BCA ¶ 36,648, at 178,475 (citing

Beta Systems, Inc. v. United States, 838 F.2d 1179, 1183 (Fed. Cir. 1988)).

“We consistently apply the ‘plain meaning’ of contracts” to the extent we can.

Inter-Con Security Systems, Inc. v. Department of Justice, CBCA 6995, 23-1 BCA ¶ 38,438,

at 186,824 (quoting P.K. Management Group, Inc. v. Secretary of Housing & Urban

Development, 987 F.3d 1030, 1033 (Fed. Cir. 2021)); see generally McAbee Construction,

Inc. v. United States, 97 F.3d 1431, 1434–35 (Fed. Cir. 1996). Both parties say the language

at issue here is plain. VA writes, “The Contract required Appellant to provide 5 shuttle buses

operating in a continuous loop. The language is unambiguous.” (Citations omitted.) Caring

Hearts cites the same words and argues that the contract required only “a shuttle service with

five buses operating according to an agreed-upon and permanent schedule, and at a frequency

of not more than 15 minutes per run.” Caring Hearts emphasizes that the contract does not

use the word “continuous.”

Although the parties insist it is plain, the requirement is ambiguous. The operative

provisions of the performance work statement (PWS) are as follows:

2.1.2

Shuttle Services from 6:00 am – 5:30 pm: The Contractor shall begin

the first runs at the parking deck weekdays at 6:00 am. The shuttles

shall run alternately and concurrently to provide pick-up times every

15 minutes at the parking deck. Shuttle services shall continue until

the last pick-ups at 5:30 pm.

2.1.3

Number of Shuttle Buses/Van: The Contractor shall provide five

shuttle buses with the capacity for approximately 20 passengers with

lifts to assist with 2 wheelchair bound passengers. Shuttle buses shall

operate on an alternating schedule, back and forth, . . . at intervals of

approximately 15 minute[s] per run.

....

2.1.4.1 Should schedules need to be modified, any modifications

must be coordinated with the [contracting officer’s representative

(COR)] and approved by the Contracting Officer prior to

implementation. Any changes to the designated pick-up and drop-off

zones will be coordinated and identified by the COR.

CBCA 8148

8

....

3.1.1

A shuttle service schedule will be created and agreed upon by the

Contractor and COR prior to the implementation of the service.

Section 7.1 further required the contractor to “have a contingency/back-up plan” to remedy

a service interruption “as quickly as possible.”

The requirement in PWS section 2.1.3 to “provide” five buses is subject to two

reasonable interpretations. See Community Heating & Plumbing Co. v. Kelso, 987 F.2d

1575, 1579 (Fed. Cir. 1993) (defining ambiguity). It could mean, as VA argues, that five

buses must “provide” all of the daily services required. But it could mean, as Caring Hearts

contends, that the contractor must stand ready to “provide” five buses as necessary to meet

the schedule of “approximately 15 minute[s] per run” to be agreed upon. VA’s gloss of the

terms as requiring “5 shuttle buses operating in a continuous loop” simply underscores the

ambiguity of the contract, which could have employed that wording but did not.

VA argues in the alternative that “even if” the contract was ambiguous, the ambiguity

was patent, such that Caring Hearts should have “br[ought] this alleged . . . ambiguity to the

VA prior to submitting a quote, which Appellant failed to do.” VA does not assert as a fact

in its statement of undisputed material facts, however, that Caring Hearts never inquired

about the ambiguity. VA only lists some questions and answers from the contract solicitation

and states that Caring Hearts “did not take exception to the requirement to provide 5 shuttle

buses” (emphasis added). Additionally, both the claim and the complaint refer to

understandings about plans of operations that the parties allegedly reached in meetings,

which could be relevant to interpreting the contract. See, e.g., Macke Co. v. United States,

467 F.2d 1323, 1325 (Ct. Cl. 1972) (“[H]ow the parties act under the arrangement, before the

advent of controversy, is often more revealing than the dry language of the written agreement

by itself.”). The ambiguous contract terms are not ripe for interpretation on the current

record.

Count Two States a Claim for Relief

VA seeks dismissal of count two, which challenges the non-exercise of the option as

an abuse of discretion, for failure to state a claim. To survive the motion, count two must

allege “factual content” that could support a “reasonable inference that [VA] is liable,”

making “a claim to relief . . . plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 663

(2009) (internal quotation marks omitted). VA argues, “The Contract is clear on its face.

The VA has a unilateral right to exercise or decline to exercise the option periods.” VA

acknowledges that the Board stated in Blackstone Consulting, Inc. v. General Services

Administration, CBCA 718, 08-1 BCA ¶ 33,770, at 167,160–61, that a decision “not to

CBCA 8148

9

exercise an option” may breach an option clause if it “was a product of bad faith or so

arbitrary and capricious as to be an abuse of discretion.” (citing Greenlee Construction, Inc.

v. General Services Administration, CBCA 416, 07-1 BCA ¶ 33,514 at 166,062; Nova

Express, PSBCA 5102, 2008 WL 103951 (Jan. 10, 2008), appeal dismissed, No. 08-1388,

2008 WL 5691050 (Fed. Cir. Aug. 5, 2008); IMS-Engineers-Architects, PC, ASBCA 53471,

06-1 BCA ¶ 33,231 at 164,674), aff’d, 274 Fed. App’x. 898 (Fed. Cir. 2008)). VA attempts

to distinguish Blackstone Consulting on the basis that Caring Hearts’s certified claim did

“not allege bad faith,” so “there is no jurisdiction o[f] such an assertion.”

VA is unpersuasive. Whether the claim described “bad faith” is immaterial, given

that, consistent with Blackstone Consulting, count two alleges that the non-exercise of the

option was an abuse of discretion. See also Plum Run, Inc., ASBCA 46091, et al., 97-2 BCA

¶ 29,193, at 145,230 (Government has an “implied obligation . . . not to abuse its discretion

or act arbitrarily or capriciously” concerning an option (citing Monarch Enterprises, Inc.,

ASBCA 31375, 86-3 BCA ¶ 19,227)).6 VA does not address count two on its terms.7

Furthermore, comparing the allegations of the certified claim to those of count two raises no

doubt as to our jurisdiction to resolve that count. Caring Hearts alleged in the claim, among

other things, that VA “was . . . pleased with [the contractor’s] services” but began to assert

“embellished claims” seeking “immediate responses” from Caring Hearts and made

“deliberate false claims and attacks against us.” Caring Hearts asserted later in the same

paragraph of the claim that VA’s “denial” of “the remaining option years should not be

executed based on the above facts.” Caring Hearts relies on substantially similar operative

facts in count two. We need not decide, based on VA’s motion, whether all of the allegations

of count two lie within our jurisdiction. Count two states a claim and is not dismissed.

VA’s Motion as to Overdue Payments Is Moot

Finally, VA asserts that Caring Hearts “alleges that it is owed additional payment

because of the delayed payments,” which VA calls an attempt at “double recovery.” Again,

however, VA cites the claim and not the complaint. The complaint seeks no such relief. We

deny VA’s motion for partial summary judgment on this issue as moot.

6

The reference in Blackstone Consulting to an abuse of discretion standard

arguably could be considered dictum because the issue was not presented in that case (or in

our earlier Greenlee Construction case, which also involved a claim of bad faith). We agree,

nevertheless, with Blackstone Consulting and with Plum Run that the Government has a duty

not to abuse the discretion it possesses under an option clause.

7

VA relies on Innovative (PBX) Telephone Services, Inc. v. Department of

Veterans Affairs, CBCA 44, et al., 08-1 BCA ¶ 33,854, in which the Board denied a “bad

faith claim” after a hearing. That case is inapposite to whether count two states a claim.

CBCA 8148

10

Decision

VA’s motion is GRANTED IN PART. We dismiss for lack of jurisdiction the

aspects of count one concerning van use and “no permanent schedule.” We deny VA’s

motion to dismiss part of the claim and all of count two for failure to state claims for relief,

having converted the motion as to the claim to a motion for partial summary judgment on

count one. We deny VA’s motion concerning overdue payments, which is not linked to a

count of the complaint, as moot.

Kyle Chadwick

KYLE CHADWICK

Board Judge

We concur:

Allan H. Goodman

ALLAN H. GOODMAN

Board Judge

Marian E. Sullivan

MARIAN E. SULLIVAN

Board Judge