DISMISSED IN PART FOR LACK OF JURISDICTION: September 4, 2013

DISMISSED IN PART FOR LACK OF JURISDICTION: September 4, 2013

CBCA 1053-ISDA, 1054-ISDA, 1055-ISDA

KETCHIKAN INDIAN COMMUNITY,

Appellant,

v.

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Respondent.

Stephen V. Quesenberry of Hobbs, Straus, Dean & Walker, LLP, Berkeley, CA,

counsel for Appellant.

Paula R. Lee, Office of the General Counsel, Department of Health and Human

Services, San Francisco, CA, counsel for Respondent.

Before Board Judges SOMERS, HYATT, and SHERIDAN.

SHERIDAN, Board Judge.

In January 2008, Ketchikan Indian Community (KIC) appealed the Department of

Health and Human Services (HHS), Indian Health Service (IHS) contracting officer’s final

decisions on its claims seeking additional contract support costs (CSCs) for fiscal years 1998

through 2000. KIC claimed it was entitled to $851,490 in additional CSCs for fiscal year

1998, $698,614 in additional CSCs for fiscal year 1999, and $248,907 in additional CSCs for

fiscal year 2000. The cases were placed in suspense for several years pending the resolution

of several cases under appeal that were pertinent to the resolution of these cases. After the

suspension was lifted, the cases were consolidated, and KIC filed a consolidated complaint.

In addition to seeking additional CSCs, KIC identified in its complaint “lost third-party

revenue expectancy damages.” Respondent, HHS, moves the Board to dismiss KIC’s

expectancy damages claims, arguing that the Board lacks jurisdiction over these elements

CBCA 1053-ISDA, 1054-ISDA, 1055-ISDA

2

because the underlying claims were never submitted to the IHS contracting officer for a

decision. Respondent argues that the Contract Disputes Act (CDA), 41 U.S.C. § 7103(a)

(Supp. IV 2011), requires that in order for the Board to have subject matter jurisdiction,

claims must first be administratively exhausted at the agency level.1 Based on the facts and

law discussed below, the Board grants respondent’s motion to dismiss for lack of jurisdiction

the portions of CBCA 1053-ISDA, 1054-ISDA, and 1055-ISDA related to lost third-party

revenue expectancy damages.

Background

The Indian Self-Determination and Education Assistance Act (ISDEAA) directs the

Secretary of HHS (and the Secretary of the Interior), upon the request of an Indian tribe, to

turn over to that tribe the direct operation of certain programs which had been run by the

agency for the benefit of the tribe. 25 U.S.C. § 450f(a)(1) (2006). Once a tribe requests

control of its programs, the Secretary and the tribe enter into a self-determination “contract,”

or in the case of self-governance tribes such as the Chickasaw, a self-governance “compact.”

Id. §§ 450(a), (c), 458aaa-3(a). These contracts or compacts often have multi-year terms,

while related funding agreements are negotiated annually (for self-determination contracts)

or every few years (for self-determination compacts). Id. §§ 450j(c), 458aa-7(b).

The ISDEAA authorizes two categories of funding. First, the ISDEAA requires the

Secretary to provide tribes with an amount of funding “not less than” the amount the Federal

Government would have spent to operate the programs if they had not been turned over to

the tribe. 25 U.S.C. § 450j-l(a)(1) (typically called the Secretarial amount). In addition, the

ISDEAA requires the Secretary to pay a reasonable amount for contract support costs (CSC),

which are reasonable costs incurred for activities that the tribe must carry on in connection

with the operation of the contracted programs but that the Secretary did not incur or fund

through resources other than those awarded under the contract or compact. Id. §

450j-1(a)(2).2 The ISDEAA requires that funds distributed to a tribe as part of the Secretarial

1

In 2011 the CDA was reorganized as part of the codification of title 41, United

States Code, in 2011. Pub. L. No. 111-350, 124 Stat. 3677, 3816-26 (2011). The

reorganization made no substantive change in the law. In this opinion, we cite to the current

version of the Act.

2

As originally enacted, the ISDEAA did not require the Government to pay

CSCs. Pub. L. No. 93-638, 88 Stat. 2203 (1975). This changed in 1988, when Congress

amended the ISDEAA to require the Government to provide funds to pay the reasonable

CSCs of covered programs. ISDEAA Amendments of 1988, Pub. L. No. 100-472, 102 Stat.

2285. Several tribes asserted that the Government had failed to fully fund their CSCs,

CBCA 1053-ISDA, 1054-ISDA, 1055-ISDA

3

amount shall not be duplicated in CSC funding. Id. § 450j-1(a)(3)(A). Both the Secretarial

amount and all CSC funding are distributed to tribes pursuant to annual funding agreements

that are incorporated by reference into a compact. Id. § 458aaa-4.

In the cases at hand, the Secretary of HHS and KIC entered into a series of selfdetermination agreements for fiscal years 1998 through 2000, which were composed of

compacts, funding agreements, and amendments for KIC’s operation of its health clinic in

Ketchikan, Alaska. Appeal File, Exhibits 11-16.

On September 30, 2005, KIC presented three written claims to the IHS Director

covering fiscal years 1998, 1999, and 2000 and alleging that KIC was entitled to additional

CSC funds under the ISDEAA agreements in effect for the respective years. Appeal File,

Exhibits 1-3. KIC’s three certified claims, totaling $1,639,499, sought $851,490 for fiscal

year 1998, $698,614 for fiscal year 1999, and $248,907 for fiscal year 2000. Id. The claim

letters were identical, with the exception of the amount that was sought for each year.

Each claim stated, “This claim is submitted pursuant to the provisions of the Contract

Disputes Act (CDA), [now codified at 41 U.S.C. §§ 7101-7109], and § 110(a) and (d) of the

[ISDEAA], for all damages arising out of the failure of the [IHS] to pay full contract support

costs (including indirect costs and direct contract support costs).” Each letter then went on

allege that the IHS failed to meet its contractual and statutory obligations in two ways:

First, the IHS failed to pay the full amount of the Ketchikan Indian

Community’s contract support cost requirement calculated pursuant to IHS’s

policies, by applying an unlawful policy limiting the total amount that would

be paid to the Ketchikan Indian Community.

Second, by the application of IHS’s policies, IHS failed to include in

the calculation of the Ketchikan Indian Community’s contract support cost

requirement the full indirect contract support costs associated with the

Ketchikan Indian Community’s contracts. IHS did so by employing the same

illegal calculation of the Ketchikan Indian Community’s indirect cost

requirements associated with this contract that was struck down by the Tenth

resulting in numerous cases that led to two Supreme Court decisions holding that the

Government must pay ISDEAA tribes (which had exhausted their administrative claims) the

full amount of their incurred CSCs. Ramah Navajo Chapter, 132 S. Ct. 2181, 2188 (2012);

Cherokee Nation of Oklahoma v. Leavitt, 543 U.S. 631, 635-36 (2005).

CBCA 1053-ISDA, 1054-ISDA, 1055-ISDA

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Circuit in Ramah Navajo Chapter v. Lujan, 112 F.3d 1455 (10th Cir. 1997).

Specifically, IHS failed to adjust the indirect cost amount calculated by

applying the Ketchikan Indian Community’s indirect cost rate to account for

the dilution in IHS’s responsibility to pay indirect contract support costs

caused by the erroneous assumption (reflected in applicable OMB Circulars

concerning indirect cost rates) that all agencies funding the Ketchikan Indian

Community contribute to the Ketchikan Indian Community’s indirect cost pool

at the full rate. By failing to make a further adjustment, IHS violated its

contractual and statutory obligations to the Ketchikan Indian Community.

Appeal File, Exhibits 1-3.3 Each claim letter stated: “[T]his claim seeks, without limitation,

all damages arising out of IHS’s failure to pay full contract support costs as required by the

ISDA and Ketchikan Indian Community’s contracts.” Id. The required CDA certification

for claims over $100,000 4 was included at the end of each letter.

The IHS Acting Director responded to each of the claims by fiscal year, issuing three

final decisions each dated October 26, 2007. KIC was advised that the claims were denied

3

In various other appeals and decisions, these two types of claims have been

referred to by several different names, presumably for ease of reference and clarity. The first

allegation, that IHS failed to pay the full amount of Chickasaw’s contract support costs when

it limited the total amount that would be paid, is alternatively referred to as the “CSC

underpayment claim,” “CSC shortfall claim,” and “CSC claim.” The second allegation, that

IHS failed to properly adjust the indirect cost rate when it used erroneous assumptions struck

down by Ramah Navajo Chapter v. Lujan, 112 F.3d 1455 (10th Cir. 1997), is alternately

referred to as the “rate-miscalculation claim,” “miscalculation claim,” and “rate dilution

claim.” Various tribes have also raised additional theories of how the additional CSCs

should be calculated. In addition to the damages relating to rate dilution, some tribes have

included in their claims allegations associated with IHS’ carry forward of adjustments made

to indirect cost rates from prior years (referred to as “wrongful carry forward adjustment

claims”) and IHS’ failure to properly adjust the indirect cost carry forward computations so

that shortfalls in indirect cost payment (caused by insufficient appropriations) were not

carried forward to future rate computations (referred to as “restore shortfall in carry forward

claims”). It does not appear that the appeals in issue here involve these claim elements.

However, the appeals in issue do involve “lost third-party revenue expectancy damage”

elements, which are the subject of the motion before us and are discussed more fully infra.

This type of claim is referenced by a variety of shortened forms, e.g., “expectancy claim” and

“third-party revenue claim.”

4

41 U.S.C. § 7103(b).

CBCA 1053-ISDA, 1054-ISDA, 1055-ISDA

5

because they were filed more than six years after the date they accrued and, therefore, failed

to meet the six-year limitation period set forth in the CDA.5 Additionally, IHS denied all the

claims because the claims “are subject to Congress’ express limitation on the amount of the

IHS appropriation that could be used for CSCs.” Respondent’s Appeal File, Exhibits 8-10.

KIC appealed the IHS final decisions to the CBCA, where they were docketed as CBCA

1053-ISDA, 1054-ISDA, and 1055-ISDA, and placed in suspense pending decisions on

several pertinent cases under appeal at higher courts.

Following the issuance of various decisions, the suspensions in CBCA 1053-ISDA,

1054-ISDA, and 1055-ISDA were subsequently lifted, the appeals were consolidated for

more efficient processing, and appellant filed its consolidated complaint. Paragraph two of

the complaint, which was submitted approximately seven and a half years after the original

claim, provided that:

The multiple claims covered by this appeal and this complaint encompass:

(a) the claim that IHS, during each of [fiscal years] 1998 through 2000,

unlawfully failed to pay in full the CSCs which the Secretary acknowledged

were due and owing to KIC;

(b) the claim that IHS, during each of [fiscal years] 1998 through 2000,

unlawfully failed to calculate correctly, and thus underpaid, the indirect

administrative CSCs the Secretary was required to pay under the ISDA, as

construed by Ramah Navajo Chapter v. Lujan, 112 F.3d 1455 (10th Cir. 1997);

and

(c) the claim that the IHS, by failing to pay the KIC its full CSCs during

each of the [fiscal years] 1998 through 2000, caused the KIC to divert

program funds to reimburse its fixed administrative expenses, which

adversely affected KIC’s ability to provide more direct services to the

beneficiaries of its programs, and those services would, in turn, have

generated additional revenue from Medicare, Medicaid, and private

insurers.

Complaint ¶ 2 (emphasis added). While the allegations found in paragraphs 2 (a) and (b) had

been set forth in appellant’s original claim letters, the allegations contained in paragraph 2

(c) were raised for the first time in the complaint. Also, the amounts sought in the complaint

5

41 U.S.C. § 7103(a)(4).

CBCA 1053-ISDA, 1054-ISDA, 1055-ISDA

6

had increased drastically from the sums sought in the 2005 claim letters. As it appeared that

KIC had added additional elements and damages in its complaint, the Board ordered

appellant to provide clarification of the bases and amounts of the claims giving rise to CBCA

1053-ISDA through 1055-ISDA. Appellant responded:

In CBCA 1053-ISDA, regarding fiscal year 1998, appellant seeks total

damages of $1,428,652, including $1,044,235 for the CSC underpayment

portion of the appeal, $30,304 for the rate-miscalculation portion of the claim,

and $354,113 for the lost third-party revenue expectancy damages portion of

the claim. In CBCA 1054-ISDA, regarding fiscal year 1999, appellant seeks

total damages of $1,031,046, including $645,419 for the CSC underpayment,

$63,262 for rate-miscalculation claim, and $322,365 in lost third-party revenue

expectancy damages. In CBCA 1055-ISDA, regarding fiscal year 2000,

appellant seeks total damages of $371,097, including $194,107 for the CSC

underpayment, $84,704 for rate-miscalculations, and $92,286 in lost thirdparty revenue expectancy damages.

HHS submitted a motion to dismiss for lack of jurisdiction the elements of the appeals

relating to KIC’s alleged lost third-party revenue expectancy damages.

Discussion

HHS asserts that the lost third-party revenue expectancy damages claims for fiscal

years 1998 through 2000, currently treated as elements of CBCA 1053-ISDA through CBCA

1055-ISDA, should be dismissed because these elements were never presented to the IHS

contracting officer. HHS posits that KIC’s expectancy damages claims are new claims, as

opposed to being part of the original claims that had been presented to the contracting officer

in September 2005, because the facts giving rise to the expectancy damages claims differ

from the essential nature and basic operative facts of the original claims. HHS argues that

the expectancy damages claims are fundamentally different from the original claims seeking

direct and indirect CSCs. HHS also points out that the new expectancy damages claims

contain new elements that significantly increase the damages KIC seeks, are based on

different data, and seek a different type of relief from that sought in the CSC claims

(additional CSCs versus damages for lost revenue).

KIC counters that the third-party expectancy claims are not new claims but instead

augment the damages that are “legitimate because the essence of the claim remains the same:

breach of contract for failure to pay full CSC, including all damages associated with those

under payments.” KIC maintains that the “basic operative facts are the breach by IHS of its

contractual obligation to pay the full amount of the [CSCs], the resulting shortfall, and all

CBCA 1053-ISDA, 1054-ISDA, 1055-ISDA

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reasonably foreseeable elements of damages that flow directly from the breach and the

shortfall in payment.” KIC explains that IHS’ underpayment resulted in damages “that

amplify, but are directly dependent upon, the amount of the shortfall itself,” and “are an

element of damages that will stand or fall based on the breach of contract and resulting

[CSC] shortfall.”

KIC put the contracting office on notice of the basic shortfall claim and that

it was seeking “all damages” resulting from this fundamental breach of the

government’s contractual obligations. The contracting officer rejected the

fundamental operative fact that was essential to the success of both the

shortfall claim and the third-party expectancy damages—that is, the

government had paid less than it was obligated to.

KIC asserts that IHS’ liability for payment of third-party expectancy damages is a direct and

foreseeable consequence of the agency’s failure to pay the full CSCs.

Under the CDA, “[e]ach claim by a contractor against the Federal Government shall

be submitted to the contracting officer for a decision.” 41 U.S.C. § 7103(a)(1). “Each claim

by a contractor against the Federal Government relating to a contract shall be in writing.”

Id. § 7103(a)(2). A claim is “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 or relating to the contract.” 48 CFR

2.101 (2012); Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (en banc);

Essex Electro Engineers, Inc. v. United States, 960 F.2d 1576, 1581-82 (Fed. Cir. 1992).

Claims over $100,000 must contain a required certification.6 Thus, for the Board to have

jurisdiction over a claim here, the tribe must first have submitted a written demand or written

assertion to the contracting officer, seeking, as a matter of right, the payment of money in a

sum certain, and where over $100,000, the claim must be certified.7 The Federal Circuit in

Arctic Slope Native Ass'n, Ltd. v. Sebelius, 583 F.3d 785, 793 (Fed Cir. 2009), held, “The

presentment of claims to a contracting officer, as required by the CDA, is a prerequisite to

review by a board of contract appeals.”

There is no requirement that a claim be presented in any particular form or use any

particular wording, but the submission does need to provide the contracting officer with “a

clear and unequivocal statement that gives the contracting officer adequate notice of the basis

6

7

41 U.S.C. § 7103(b).

As noted earlier, appellant seeks lost third-party revenue expectancy damages

in the amounts of $354,113, $322,365, and $92,286 for fiscal years 1998 through 2000.

CBCA 1053-ISDA, 1054-ISDA, 1055-ISDA

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and amount of the claim.” Kevin J. LeMay v. General Services Administration, GSBCA

16093, 03-2 BCA ¶ 32,345, at 160,041 (quoting Contract Cleaning Maintenance, Inc. v.

United States, 811 F.2d 586, 592 (Fed. Cir. 1987)). The reason for this requirement is to

allow the contracting officer to receive and pass judgment on the contractor’s entire claim.

Scott Timber Co. v. United States, 333 F.3d 1358, 1366 (Fed. Cir. 2003).

As this Board explained in New South Associates v. Department of Agriculture,

CBCA 848, 08-1 BCA ¶ 33,785, at 167,211:

The law is clear that in an appeal from a contracting officer’s decision,

a contractor may increase the amount of its claim and present evidence in

support of an increase, but may not raise any new claims which were not

presented to the contracting officer. Santa Fe Engineers, Inc. v. United States,

818 F.2d 856, 858 (Fed. Cir. 1987). “A new claim is one that does not arise

from the same set of operative facts as the claim submitted to the contracting

officer.” Hawkins & Powers Aviation, Inc. v. United States, 46 Fed. Cl. 238,

243 (2000). “[S]o long as the essential nature and operative facts of the claim

remain unchanged, the Board has jurisdiction to consider . . .

increased/modified amounts of damages first raised in pleadings . . . .”

Whiting-Turner/A.L. Johnson Joint Venture v. General Services

Administration, GSBCA 15401, 02-1 BCA ¶ 31,708, at 156,622-23 (quoting

American Consulting Services, Inc., ASBCA 52923, 00-2 BCA ¶ 31,084, at

153,485). Updates to a claim which do not change the nature of the claim, its

basic underlying facts, or the theory of recovery are allowed. McDonnell

Douglas Services, Inc., ASBCA 45556, 94-3 BCA ¶ 27,234, at 135,706-07.

In evaluating respondent’s contention that we lack jurisdiction to consider the portions

of appellant’s claims relating to third-party expectancy damages, we must decide whether the

claims originally presented to the contracting officer can reasonably be viewed as

encompassing the matters raised in appellant’s complaint. An action brought under the CDA

must be “based on the same claim previously presented to and denied by the contracting

officer.” Scott Timber Co., 333 F.3d at 1365 (quoting Cerberonics, Inc. v. United States, 13

C1. Ct. 415, 417 (1987)). The Federal Circuit pointed out that this standard does not require

rigid adherence to the exact language or structure of the original administrative claim.

Rather, when a new claim is asserted that was not directly addressed in the appellant’s

original claim submission, the tribunal must examine whether the newly posed claim derives

from the same operative facts, seeks essentially the same relief, and, in essence, merely

asserts a new legal theory for the recovery originally sought. Id.; see also Thomas D.

McCloskey v. General Services Administration, GSBCA 15901, 02-2 BCA ¶ 32,006; Contel

Advanced Systems, Inc., ASBCA 49073, 02-1 BCA ¶ 31,809; J.S. Alberici Construction Co.,

CBCA 1053-ISDA, 1054-ISDA, 1055-ISDA

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ENG BCA 6178, 98-2 BCA ¶ 29,875. “[T]o determine whether two or more separate claims

. . . exist[ ], the court must assess whether . . . the claims are based on a common or related

set of operative facts. If the court will have to review the same or related evidence to make

its decision, then only one claim exists.” Placeway Construction Corp. v. United States, 920

F.2d 903, 907 (Fed. Cir. 1990).

A new claim arises when the significant facts on which the new claim is based differ

from the factual basis of the earlier claim. In Foley Co. v. United States, 26 Cl. Ct. 936, 940

(1992), the Court of Federal Claims found that where the Government asserted an altered

method of performance on one claim and an unforeseeable quality variation on another, these

claims involved “entirely different facts” that constituted a new claim. In AAB Joint Venture

v. United States, 75 Fed. Cl. 414, 422-23 (2007), the court found a new claim where the

claim differed “in both the factual basis and the proof required” from the original claim. In

North Wind, Inc. v. Department of Agriculture, CBCA 1779, 11-1 BCA ¶ 34,642, this Board

found a new claim arose from differing operative facts where “the contracting officer would

have to review assertions as to a change in the project design, rather than assertions as to the

project as designed.” See also Serco, Inc. v. Pension Benefit Guaranty Corp., CBCA 1695,

et al., 11-1 BCA ¶ 34,707 (finding a new claim had arisen since the claims differed in, inter

alia, number of employees, employee identities, dates, and invoice analysis). In Wheeler

Logging, Inc. v. Department of Agriculture, CBCA 97, 08-2 BCA ¶ 33,984, where the Board

concluded that, among other factors, significant change to the claim elements, amounts, and

supporting data mandated a conclusion that the new elements of the claim were required to

be certified and presented to the contracting officer in order for the Board to have

jurisdiction.

The fact that a contractor may include language in its original claim to the effect that

it seeks “any and all damages” relating to a breach does not, in and of itself, absolve the

contractor of the requirement to specify the operative facts on which the claim is based. A

claim cannot be broadly stated; it should reflect a “careful and reasonably precise”

submission to the contracting officer. Tecom, Inc. v. United States, 732 F.2d 935, 937 (Fed.

Cir. 1984); see also Building Systems Contractors, Inc., VABCA 2749, et al., 89-2 BCA ¶

21,678 (noting contractor’s lack of “care or reasonable precision” in its submission to

contracting officer justified denying/dismissing the claim). Once the role of the contracting

officer has been circumvented by predicating a claim on a new factual theory, the party has

submitted a claim differing from the basic operative facts of the original claim. See

Cerberonics, 13 C1. Ct. at 417-18.

In these appeals, KIC’s original claims seeking additional CSCs asserted that KIC had

not been fully paid all the direct and indirect CSCs to which it was entitled for fiscal years

1998 through 2000. The CSCs are the direct and indirect costs the tribe incurred in

CBCA 1053-ISDA, 1054-ISDA, 1055-ISDA

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administering its health clinic. The facts that appear to be significant to the CSC claims go

to establishing that KIC is entitled to additional CSCs and include, but are not limited to,

establishing that a particular cost is a CSC, how that cost was derived and calculated, and that

KIC incurred CSCs that were not funded.

The significant facts pertaining to KIC’s lost third-party expectancy damages claims

are fundamentally different from the facts needed to prove a right to additional CSCs. The

essence of the lost third-party claims is that for each fiscal year that IHS failed to pay KIC

its full CSCs, KIC diverted program funds to cover its fixed administrative expenses, thereby

providing fewer direct services to the beneficiaries of its programs. Because KIC is entitled

to bill third-party providers (e.g., Medicare, Medicaid, and private insurers) for the direct

services it provides to eligible beneficiaries, fewer direct services provided resulted in

reduced revenue recovery from the third-party providers.

The operative facts and quantification that pertain to the lost third-party expectancy

damages portion of this case are completely distinct from the facts giving rise to entitlement

to additional CSCs. Paragraph 2 (c) of KIC’s complaint asserts that its entitlement to lost

third-party revenue damages is premised on the tribe’s diversion of program funds to

reimburse fixed administrative expenses, which in turn adversely affected its ability to

provide additional services to the beneficiaries of its programs and impacted its recovery of

third-party revenue. None of the underlying or operative facts inherent in establishing

entitlement to such damages is subsumed within the claims seeking full reimbursement of

CSCs. The fact that a tribe may obtain revenue from providing direct services to

beneficiaries is not apparent from the operative facts giving rise to the original claims.

It is not sufficient, in CDA cases, where there is the requirement that a written claim

be first presented to the contracting officer, to merely add new claims, categories, or elements

to an appeal. New claims, categories, or elements must go to the contracting officer for final

decision unless they arise out of the same operative facts as the original claim. Modified

amounts of damages that do not rely on changes to the essential nature of the original claim

or its basic underlying facts are not required to be submitted again to the contracting officer.

In considering whether KIC is entitled to lost third-party revenues a contracting officer would

have to consider a significantly different set of operative facts from the set of facts the

contracting officer had to consider in deciding whether KIC is entitled to additional CSCs.

The allegations of lost third-party revenue set forth in KIC’s complaint raised new claims

that had not yet been submitted to the contracting officer. The Board lacks the jurisdiction

to decide the merits of these claims until after they are submitted to the contracting officer

for final decision and the appropriate administrative procedures have been followed.

CBCA 1053-ISDA, 1054-ISDA, 1055-ISDA

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Decision

For the reasons set forth above, HHS’ motion is granted and the portions of CBCA

1053-ISDA, 1054-ISDA, and 1055-ISDA related to lost third-party revenue damages are

dismissed for lack of jurisdiction.

PATRICIA J. SHERIDAN

Board Judge

We concur:

JERI K. SOMERS

Board Judge

CATHERINE B. HYATT

Board Judge