             In the United States Court of Federal Claims
                                           No. 13-626C
                                      (Filed: July 27, 2017)

                                                 )    Keywords: Contract Disputes Act; Motion
 MICHAEL ROTH & ASSOCIATES,                      )    to Dismiss; Claim; Architect-Engineer
 ARCHITECTS & PLANNERS INC.,                     )    Services; Design Within Funding
                                                 )    Limitations Clause; Changes Clause.
                        Plaintiff,               )
                                                 )
        v.                                       )
                                                 )
 THE UNITED STATES OF AMERICA,                   )
                                                 )
                        Defendant.               )
                                                 )

Lawrence P. Kaplan, Kaplan Associates, LLC, St. Louis, MO, for Plaintiff.

Jessica L. Cole, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of
Justice, Washington, DC, with whom were Franklin E. White, Jr., Assistant Director, Robert E.
Kirschman, Director, and Benjamin C. Mizer, Principal Deputy Assistant Attorney General, for
Defendant.

                                     OPINION AND ORDER

KAPLAN, Judge.

        This case involves a contract dispute between Plaintiff Michael Roth & Associates,
Architects & Planners, Inc. (MRA) and the Department of Veterans Affairs (VA). Specifically,
MRA seeks an equitable adjustment of the contract price based on what it alleges were changes
to the scope of the contract ordered by the VA.

        Currently before the Court is the government’s motion to dismiss for lack of subject
matter jurisdiction or, in the alternative, for summary judgment. For the reasons set forth below,
the government’s motion to dismiss is GRANTED and the case is DISMISSED without
prejudice.
                                       BACKGROUND1

I.     The Contract

       On November 1, 2005, MRA and the VA entered into a contract in which MRA agreed to
provide “professional services necessary for the design of various projects against task order
delivery contracts when ordered” by certain VA medical centers. Compl. Ex. A at 1, ECF
No. 1-2. The architectural, interior design, and structural services to be provided included the
“preparation of studies, schematics, investigative services, design development, construction
documents, cost estimates, construction period services, visits to the site, miscellaneous reports
and other related activities.” Id.

       The contract was an indefinite-quantity contract in which all “supplies and services to be
furnished” were to be “ordered by issuance of delivery orders or task orders.” Id. at 19.
Specifically, the parties described the agreement as a “master contract obligating the Architect-
Engineer to provide services by task-order on various projects.” Id. at 12. The initial contract
term was one year, with four one-year options, and an annual contract ceiling of $450,000. Id.

        Under the contract, the VA would issue task orders upon agreement “by the Architect-
Engineer and the [CO]” as to their terms. See id. The VA would first issue a “statement of work”
with a “request for a proposal to perform the required services.” Id. MRA was then required to
“promptly submit a proposal . . . includ[ing] a detailed cost or pricing breakdown on a VA form
08-6298, Architect-Engineer Fee Proposal.” Id. Once MRA and the VA agreed on the “services
to be performed, fee, and time for completion,” the CO would “issue a Task Order against the
contract, reflecting all terms agreed upon.” Id. If MRA and the VA could not reach agreement
over a particular statement of work, “neither party [would] be under any obligation to the other,
with respect to the services covered by the particular statement of work.” Id. at 13.

         Section 2.20 of the contract, entitled “52.243-1 Changes—Fixed-Price (Aug 1987)
Alternate III (Apr 1984),” incorporated the language from the Federal Acquisition Regulation’s
(FAR) changes clause. Part I, App. to Def.’s Mot. to Dismiss for Lack of Subject-Matter
Jurisdiction or, in the Alternative, for Summ. J. (Def.’s Mot. App. Pt. I) at DA29, ECF No. 28-2.
It states, in pertinent part:

               (a) The Contracting Officer may at any time, by written order, and
               without notice to the sureties, if any, make changes within the
               general scope of this contract in the services to be performed.
               (b) If any such change causes an increase or decrease in the cost of,
               or the time required for, performance of any part of the work under
               this contract, whether or not changed by the order, the Contracting



1
  The facts in this section are based on the allegations in MRA’s complaint, as well as on
jurisdictional facts from the deposition transcripts and documentary evidence supplied by the
parties.



                                                2
               Officer shall make an equitable adjustment in the contract price, the
               delivery schedule, or both, and shall modify the contract.
                ....
               (f) No services for which an additional cost or fee will be charged
               by the Contractor shall be furnished without the prior written
               authorization of the Contracting Officer.

Id.

       In addition, Section 2.14 of the contract set forth the language of the clause contained at
FAR 52.236-22, entitled “Design Within Funding Limitations (Apr 1984).” Id. at DA27. That
provision stated as follows:

               (a) The Contractor shall accomplish the design services required
               under this contract so as to permit the award of a contract, using
               standard Federal Acquisition Regulation procedures for the
               construction of the facilities designed at a price that does not exceed
               the estimated construction contract price as set forth in paragraph
               (c) below. When bids or proposals for the construction contract are
               received that exceed the estimated price, the Contractor shall
               perform such redesign and other services as are necessary to permit
               contract award within the funding limitation. These additional
               services shall be performed at no increase in the price of this
               contract. However, the Contractor shall not be required to perform
               such additional services at no cost to the Government if the
               unfavorable bids or proposals are the result of conditions beyond its
               reasonable control.
               (b) The Contractor will promptly advise the Contracting Officer if it
               finds that the project being designed will exceed or is likely to
               exceed the funding limitations and it is unable to design a usable
               facility within these limitations. Upon receipt of such information,
               the Contracting Officer will review the Contractor’s revised
               estimate of construction cost. The Government may, if it determines
               that the estimated construction contract price set forth in this
               contract is so low that award of a construction contract not in excess
               of such estimate is improbable, authorize a change in scope or
               materials as required to reduce the estimated construction cost to an
               amount within the estimated construction contract price set forth in
               paragraph (c) below, or the Government may adjust such estimated
               construction contract price. When bids or proposals are not solicited
               or are unreasonably delayed, the Government shall prepare an
               estimate of constructing the design submitted and such estimate
               shall be used in lieu of bids or proposals to determine compliance
               with the funding limitation.




                                                 3
               (c) The estimated construction contract price for the project
               described in this contract is [insert price].

Id. The contract also provided that if the low bid for constructing the design exceeded this
clause’s estimated construction contract price, the VA could “relieve[] [MRA] of th[e]
requirement [of FAR 52.236-22 to design within the construction limitation] by the award of a
construction contract, notwithstanding the relation of the award price to the authorized
construction cost.” Id. at DA32.

II.    The Task Order

         In 2008, the VA issued a task order for architectural-engineering services. See id. at
DA59. The task order’s scope of work encompassed “A/E services . . . to prepare Schematics,
Design Documents (DD), Construction Documents [(]CD), Cost Estimates and Construction
Period Services (CPS) for Project 657-330, Expand Open Heart Surgery/Relocate Cardiology, B-
1, JC at the John Cochran Division of the VA Medical Center, St. Louis, Missouri.” Id. at DA60.
It also provided that the VA would pay MRA a flat fee of $311,924.97 for these services. Id. at
DA59. The task order stated that “[i]n accordance with 52.236-22, Design Within Funding
Limitation (Apr 1984), the estimated construction contract price for this project is $3,688,000,
not including any contingency.” Id. at DA61 (emphasis in original).

III.   Modification of the Task Order

        By October 2010, MRA believed it was “95 percent complete with the construction
documents.” Part II, App. to Def.’s Mot. to Dismiss for Lack of Subject-Matter Jurisdiction or, in
the Alternative, for Summ. J. (Def.’s Mot. App. Pt. II) at DA235, ECF No. 28-3 (July 10, 2014
deposition of Michael Roth); see also Def.’s Mot. App. Pt. I at DA74. At that time, MRA
estimated that the cost of constructing the facility it designed would be $3,782,082, which
exceeded the budget established under the task order by $94,082. Def.’s Mot. App. Pt. I at
DA70.

        On or about February 22, 2011, the contracting officer (CO) issued a statement of work
requesting revisions to certain aspects of the project. See id. at DA74–76. The purpose of the
revisions was “to incorporate scope changes from the original professional services contract after
the 95% Submittal dated October 7, 2010 beginning with the November 23, 2010 meeting.” Id.
at DA74; see also id. at DA74–76 (describing revisions required under statement of work,
including, among other things, changes needed to reflect the requirements for new imaging
equipment for use in the new cardiology unit’s electrophysiology and cardiac catheterization
labs). Additionally, the CO wrote that the “Change Order” was intended “to compensate the
Architect/Engineer for the scope changes to bring the project back up to the 95% completion
level for those elements of the project affected by the scope changes, including cost estimating
services.” Id. at DA74. The modification would also “compensate[] the A/E for the services
required on the scope changes from the 95% completion level through construction completion.”
Id.

         The statement of work specified a reduced “Project Construction Cost” of $3,122,000. Id.
It also noted that MRA’s “additional service fees” for the Change Order would “reduce the funds



                                                4
available for project construction.” Id. It reiterated that “[t]he A/E [was] responsible for
designing the project within the Project Cost Amount.” Id. Under the terms of the proposed
Change Order, MRA would also be required to include “[d]eductive alternates . . . in the
Contract Documents to reduce the probable Construction Cost to at least 10% below the current
Project Construction Cost Amount.” Id.

         On March 22, 2011, MRA proposed that it be paid a flat fee of $176,101.33 to complete
the work required by the task order as modified. Id. at DA77. The VA accepted MRA’s fee
proposal and, “pursuant to the authority of: FAR A/E Changes Clause,” it issued Modification
Number 2 to the task order, with an effective date of May 9, 2011. See Def.’s Mot. App. Pt. II at
DA113. Under the modification, MRA would “[p]rovide design revisions per [the] Statement of
Work dated 2/22/11 and in accordance with [its] revised proposal dated March 22, 2011” for a
total additional fee of $176,101.33. Id. Modification Number 2 also stated that “[t]he Project
Construction Cost Amount [was] to be reduced from $3,122,000.00 to $2,945,900.00.” Id.
Additionally, it included the requirement that “[d]eductive alternates . . . be included in the
Contract Documents to reduce the probable Construction Cost to at least 10% below the Project
Construction Cost Amount of $2,945,900.00.” Id. Finally, the modification also included a
release, stating that “[t]he consideration represents a complete equitable adjustment for all costs,
direct and indirect, associated with the work and time agreed to herein, including, but not limited
to, all costs incurred for extended overhead, supervision, disruption or suspension of work, labor
inefficiencies, and this change’s impact on unchanged work.” Id. Both Michael Roth and the CO,
Pauline Czajkowski, signed the modification. Id.

IV.    MRA’s Cost Estimates For Construction Under the Task Order as Modified

       After the task order was modified, MRA continued to complete its design work,
including the required revisions. See id. at DA114. In August 2011, it informed the CO’s
technical representative (COTR) via voicemail that its construction cost estimates for the project
as modified were above the Project Construction Cost Amount. See id.

         The COTR responded to the voicemail with an email in which he opined that MRA’s
project cost estimates were “overly conservative” and inconsistent with MRA’s prior estimates.
Id. In fact, the COTR observed, MRA had increased its project cost estimate by more than 40%
over its previous estimate. Id. The COTR advised MRA to “update and refine” its estimates by
the conclusion of the design development stage. Id. “If the project is still over budget at that
time,” he observed, “we can discuss what elements need to be addressed to bring the project
scope within budget.” Id.

V.     MRA Seeks a Second Modification of the Task Order

        On March 16, 2012, MRA emailed the CO and COTR to request a new modification to
the task order. See id. at DA123. It noted that the previous modification, which it described as
issuing in March 2011, covered “costs related to the change in work scope associated with
previously requested changes,” which were “made and completed by August, 2011.” Id. MRA
stated that its “newly requested modification request” was “to cover additional services requested
over the past 7 months,” including 1) “services related to the infrastructure project including
design”; 2) “documentation bidding services and site visits”; 3) “time spent trying to make use of


                                                 5
the laser scan data submitted”; 4) “time spent making changes to previously approved designs
including the 3D model of the EP lab”; 5) “changes to HVAC, lighting, data, power, etc. related
to changing the documents and a later decision to use a plenum box”; 6) “multiple changes to
casework and storage system layouts”; 7) “additional work due to the untimeliness of being able
to access the new cardiology area to measure it”; and 8) “the need to again refinalize and
recoordinate the final documents.” Id. MRA sought a fee increase of $37,737. Id.

        On March 18, 2012, the CO responded by email. Id. at DA158. She indicated that she had
“not receiv[ed] anything at all from [MRA] . . . to show what work [it] had put into the design,”
and thus she did “not understand how [she] could . . . possibly have considered [MRA’s] request
for another mod[ification] for additional costs.” Id. Further, she requested additional drawings
representing the status of MRA’s design work at different points in time and stated that she
would “not be considering any additional service requests . . . until those files [were] provided.”
Id. at DA159.

VI.    MRA’s Final Construction Cost Estimate

       In April 2012, MRA submitted bid documents for the project to the VA. Id. at DA163. In
the documents, it estimated a project construction cost of $4,591,842.54, which was $1,645,943
over the $2,945,900 construction cost ceiling set forth in the task order as modified. See id. at
DA165, DA169. MRA also provided seven deductive alternates which in total reduced the
estimated construction cost to $3,348,864.25. See id. at DA165. This amount was still
$402,964.25 greater than the Project Construction Cost. See id.

VII.   MRA Requests Compensation for Alleged Additional Changes in Contract Scope

        Some four months later, on August 16, 2012, MRA wrote to the CO again requesting a
fee increase. Id. at DA170. It claimed that since its March 16, 2012 letter, “the scope [of the
project] ha[d] increased and [its] estimate [wa]s now $4,592,000 prior to bidding.” Id. MRA
explained that, in its view, its original fee was based on the original construction budget, and that
its hourly fees as agreed to in the contract were no longer applicable because they were only
good for four years (which had passed). Id. MRA wrote that because “the VA continu[ed] its
scope changes to realize a project over budget, MRA requests an increase in A/E fee
commensurate with the current estimate and future construction bid.” Id.

         The CO responded on August 31, 2012. Id. at DA172–73. The CO quoted the text of
Modification 2 and observed that “[t]he square footage and scope of the project ha[d] not
changed since Modification 0002.” Id. at DA172. She reminded MRA that it had “agreed when
[it] signed the modification that the construction cost amount was to be reduced to $2,945,900”
and that it was paid an additional $176,101 for services provided in order to accomplish the tasks
required under the modified task order. Id. “Therefore,” the CO concluded, she “[would] not be
considering any prior issues to the modification of May 9, 2011.” Id. With respect to any claims
for “an increase in salary costs and for any services provided after Modification 0002,” the CO
told MRA, it would “need to provide the breakdowns and documentation.” Id. at DA173.

       In the meantime, on December 12, 2012, the VA entered into a contract with JW Fuller
Construction for the renovation work at the St. Louis VA Medical Center. Id. at DA174–75. The



                                                  6
contract award amount was $3,050,300. Id. at DA175. This amount included four of the
deductive alternates. Id. at DA176. JW Fuller also offered to complete an additional six optional
bid items for an aggregate total of approximately $1,360,000. Id. at DA177–79.2

        Six weeks later, on January 29, 2013, MRA submitted another request for increased
compensation. Id. at DA183–84. It again alleged that it was owed compensation by the VA “for
an increase in work scope above and beyond Modification 2, which adjusted our compensation
upward by $176,101.” Id. at DA183. It further stated that “[t]he VA increased and adjusted work
scope beyond that of Modification 2, and at the same time decreased the project budget from
$3,122,000 to $2,945,900.” Id. According to MRA, the COTR had “increased and revised the
work scope [by] adding refinements and details resulting in a significant cost increase in the
construction cost.” Id. It also complained that even though it had warned the VA about its
estimates being over-budget, the VA’s only response had been to dispute the validity of MRA’s
estimates. Id.

        Additionally, MRA asserted that because the construction contract had been awarded for
more than the $2.945 million Project Construction Cost, there must have been “an increase in
unacknowledged work scope.” Id. It thus informed the VA that it expected to make an
“additional compensation request . . . between $120-125,000.” Id. at DA184.

        CO Czajkowski responded by email on January 30, 2013. Id. at DA185. She reminded
MRA that in her August 31, 2012 letter she had indicated that she would consider an increase in
salary costs for services provided after Modification 2, but that in order to provide such an
increase she would need for MRA to supply a breakdown of costs, along with documentation. Id.
She pointed out that MRA had still not provided any documentation to support its request. Id.

        On February 6, 2013, MRA submitted timesheets for November 2010 through August
2012 to “substantiate [MRA’s conclusions regarding] the total monetary value of the actual time
MRA spent versus the amount provided in the approved Modification 2.” Id. at DA186. It
requested an additional fee of $107,777, representing the difference between the fee approved to
provide the services outlined in the modification and what MRA contended was the actual value
of the services provided by Mr. Roth and the two members of his design team who worked on
the task order as modified. Id. at DA187.3

       The CO responded on April 4, 2013. Id. at DA191. She began by noting that MRA’s
“demand was not certified as set out in 48 CFR § 52.233-1,” and thus she did not “consider [it] a
‘claim’ for purposes of the Contract Disputes Act.” Id. Further, she told MRA that based on the
documentation and her consultation with the VA’s legal department, the VA “ha[d] no legal

2
 VA procurement staff subsequently requested that additional funds be allocated to the project
by the VA’s Office of Capital Asset Management and Support, Def.’s Mot. App. Pt. II at
DA180–82, but that request was denied in February 2013, id. at DA188.
3
 MRA claimed that it was actually entitled to $125,405 for the additional work. Def.’s Mot.
App. Pt. II at DA186–87. Mr. Roth, however, agreed to reduce his hours by 50%, which he said
“more accurately reflect[ed his] effort.” Id.



                                                7
basis to make the payment [it] . . . demanded.” See id. She referred MRA to the concerns raised
in her August 31, 2012 letter, and also referenced the release language contained in the change
order. Id. In addition, she stated that MRA’s “request for ‘the total monetary value of the actual
time MRA spent versus the amount provided in the approved Modification 2’ has already been
addressed by Modification 2,” which had “provided for a cash payment in exchange for all costs
associated with the work specified in the modification.” Id. (quoting id. at DA186).

        The CO also noted that the contract required that changes in scope be approved in writing
by the CO. Id. at DA192. Therefore, she advised that if MRA were alleging a change in scope
that she had authorized in writing, and could show how it specifically increased MRA’s costs,
she would consider such a demand. Id. But, she explained, “[t]wo years of timesheets itemizing
hours worked as ‘VA-JC Cardiology’ provide no basis for me to consider additional payment.”
Id. “At best,” the CO concluded, “they show your firm was doing the work both parties
contemplated when Modification 2 was signed.” Id.

        MRA responded by letter on April 25, 2013. Id. at DA193–94. MRA set out the
“components [which] constitute[d] the sources of extra work performed in [its] substantial time
overage for modifications which were requested via emails but not formally approved by the
VA.” Id. at DA193. First, MRA stated that the VA had required it to design “a larger project.” Id.
Thus, according to MRA, “the primary reason we incurred additional hours on the Cardiology
project is that we were directed to design a project 1.5 times larger than the available budget.” Id.
It further asserted that when it informed the COTR of its over-budget estimates, the COTR told
MRA that it was “wrong and instructed [it] to continue with producing construction documents.”
Id. According to MRA, it was required to work an additional 1,253.25 hours in order to satisfy
the VA’s demands. Id.

        In addition to its general allegation that the VA directed MRA to design a project that
was larger than the available budget, MRA also claimed that it spent additional hours on certain
specified tasks. Id. at DA193–94. These included working on a “3D Point Cloud” (sixteen extra
hours), designing demountable ceilings (twenty extra hours), designing a relocation of the piping
(twenty-four extra hours), providing plans and specifications for furniture and equipment (sixty
extra hours), changing mechanical designs based on updated VA design guidelines (eight extra
hours), adding rooms and widening a lobby (twenty-four extra hours), and revising casework for
laboratories (thirty-two extra hours). Id.

          Shortly afterwards, MRA sent another letter to the CO, dated May 13, 2013, with the
subject line “Claim Under the Contract Disputes Act of 1978 as Amended.” Id. at DA195. The
letter stated that it included “materials supporting the claim of Michael Roth & Associates,
Architects & Planners, Inc. (MRA) for work performed on the . . . project including [its]
letter . . . of April 25, 2013.” Id. MRA claimed an entitlement to increased compensation in the
amount of $107,777 “per [its] letter on February 6, 2013.” Id. MRA also included the Contract
Disputes Act’s certification language. Id.

       On July 22, 2013, the CO responded. Id. at DA196–201. She observed that MRA’s claim
for additional hours worked based on the construction cost of the project (which represented
87.2% of the total additional hours claimed) was not compensable under the changes clause
because “[t]he scope of The Project did not change since the acceptance of Modification #002 to


                                                 8
the contract.” Id. at DA196–97. The CO explained that “[w]hile the construction cost is a
material issue in the computation of whether or not MRA’s fee is within the mandated 6% A/E
Fee Limitation of 836.606-73, the construction cost is not a material issue since MRA’s fees
were negotiated on the basis of man-hours and project scope, not construction cost.” Id. at
DA197.

       The CO then addressed and rejected each of the specific alleged tasks for which MRA
claimed that it was entitled to additional compensation in its April 25, 2013 letter. See id. at
DA197–201. The CO also found that, in any event, the timesheets MRA had submitted for
additional man-hours were defective because, among other things, they were prepared solely for
purposes of making a claim and not in the normal course of business, contained major
discrepancies, and appeared to be inflated. Id. at DA200–01.

         In short, the CO found that MRA’s claim for an equitable adjustment in the amount of
$107,777 for changes in the scope of work lacked merit. See id. at DA201. Accordingly, she
advised MRA that her letter was “the final decision of the Contracting Officer” and informed it
of its appeal rights under the disputes clause. Id.

VIII. This Action

       On August 30, 2013, MRA filed a complaint in this court. ECF No. 1. In its complaint,
MRA alleges that the VA directed “changes . . . to the scope of the contract and the services
performed,” which “caused an increase in both the time and costs required for performance.”
Compl. ¶ 21. It further alleges that the VA violated the changes clause in the contract by not
making an equitable adjustment in the contract price. Id. ¶¶ 21–22; see also id. ¶¶ 5–7, 10. MRA
seeks $125,405 in damages. Id. at 4.

        After discovery was completed, the government filed a motion to dismiss and motion for
summary judgment on February 6, 2015. ECF No. 28. MRA responded on March 9, 2015. ECF
Nos. 29–32. Oral argument was held before Judge Wolski (to whom this case was previously
assigned) on June 11, 2015. See Order, ECF No. 39. Judge Wolski then requested supplemental
briefing, which was completed on February 3, 2016. ECF Nos. 40–44, 49–50, 52–53. On March
30, 2017, the case was reassigned to the undersigned. ECF No. 57.

                                         DISCUSSION

        The government has moved to dismiss MRA’s complaint. It contends that the Court lacks
jurisdiction over MRA’s claim for an equitable adjustment because MRA failed to first present
its claim to the CO as required by the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–09.
Alternatively, the government contends that MRA’s claim lacks merit and that it is entitled to
judgment as a matter of law.

       For the reasons set forth below, the Court agrees that the claim MRA is pursuing in this
Court was not presented to the CO. Accordingly, the Court lacks jurisdiction to consider it and
MRA’s complaint must be dismissed.




                                                9
I.     Standards for Motions to Dismiss on Jurisdictional Grounds

        Generally, in deciding a motion to dismiss for lack of subject matter jurisdiction, the
court accepts as true all undisputed facts in the pleadings and draws all reasonable inferences in
favor of the plaintiff. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir.
2011). However, if a movant disputes the basis of the Court’s jurisdiction, the allegations in the
complaint are not controlling and the Court may review evidence extrinsic to the pleadings.
Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583–84 (Fed. Cir. 1993). The plaintiff bears
the burden of establishing subject matter jurisdiction by a preponderance of the evidence. Brandt
v. United States, 710 F.3d 1369, 1373 (Fed. Cir. 2013); see also Reynolds v. Army & Air Force
Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). If the court does not have subject matter
jurisdiction, it must dismiss the claim. Rules of the Court of Federal Claims (RCFC) 12(h)(3).

II.    Jurisdiction Under the Contract Disputes Act

         The Tucker Act grants the United States Court of Federal Claims the power “to render
judgment upon any claim against the United States founded either upon the Constitution, or any
Act of Congress or any regulation of an executive department, or upon any express or implied
contract with the United States, or for liquidated or unliquidated damages in cases not sounding
in tort.” 28 U.S.C. § 1491(a)(1). Further, the Court has “jurisdiction to render judgment upon any
claim by or against, or dispute with, a contractor arising under [the CDA], including a dispute
concerning termination of a contract.” Id. § 1491(a)(2).

        The CDA applies to any express or implied contract made by an executive agency for,
among other things, the procurement of services. 41 U.S.C. § 7102(a)(2). Under the CDA, when
a contractor has a claim against the government, the “claim . . . shall be submitted to the [CO] for
a decision.” Id. § 7103(a)(1). This must be done in writing. Id. § 7103(a)(2). Further, all claims
for more than $100,000 must be certified. Id. § 7103(b)(1).

        Under the CDA, 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.” See
England v. The Swanson Grp., Inc., 353 F.3d 1375, 1379 (Fed. Cir. 2004) (quotation omitted);
see also Paradigm Learning, Inc. v. United States, 93 Fed. Cl. 465, 472 (2010) (citing FAR
52.233-1(c)); FAR 2.101 (defining “claim). The written demand or assertion must be non-
routine. See James M. Ellett Constr. Co. v. United States, 93 F.3d 1537, 1542 (Fed. Cir. 1996).
Further, a claim under the CDA must contain a “clear and unequivocal statement that gives the
[CO] adequate notice of the basis and amount of the claim.” Contract Cleaning Maint., Inc. v.
United States, 811 F.2d 586, 592 (Fed. Cir. 1987). A claim may be established based upon the
submission and consideration of multiple documents, as long as the combination “make[s] clear
how much the plaintiff is willing to accept in settlement of its claim” and the additional
documents are sufficiently cross-referenced to permit the CO to understand that together they
constitute the claim. N. Star Alaska Hous. Corp. v. United States, 76 Fed. Cl. 158, 185–86
(2007); see also Kvaas Constr. Co. v. United States, 22 Cl. Ct. 740, 742 (1991).

       Once a claim is submitted, the CO must issue a decision in writing. 41 U.S.C. § 7103(d).
The CO’s written decision “shall state the reasons for the decision reached and shall inform the
contractor of the contractor’s rights,” but “[s]pecific findings of fact are not required.” Id.


                                                10
§ 7103(e). A contractor that has received a CO’s written decision on its claim may bring an
action directly in the Court of Federal Claims “in lieu of appealing the decision of a [CO] . . . to
an agency board.” Id. § 7104(b)(1). The contractor must do so within twelve months from “the
date of receipt of a [CO]’s decision.” Id. § 7104(b)(3).

        Compliance with the dispute resolution procedures set forth in the CDA is a prerequisite
to the Court’s exercise of jurisdiction over claims covered by that act. See England, 353 F.3d at
1379 (observing that “jurisdiction over an appeal of a [CO’s] decision is lacking” unless the
claim is first presented to the CO for decision). Thus, for the Court to have subject matter
jurisdiction over a CDA dispute, as in the present case, there must be “both a valid claim and a
[CO’s] final decision on that claim.” M. Maropakis Carpentry, Inc. v. United States, 609 F.3d
1323, 1327 (Fed. Cir. 2010) (citing James M. Ellett Constr. Co., 93 F.3d at 1541–42).

III.   The Merits of the Government’s Motion to Dismiss

       The first task before the Court in determining whether the CDA’s exhaustion requirement
has been satisfied is to identify precisely the nature of the claim MRA is pursuing before this
Court. Once the Court has identified the claim before it, it must then decide whether that claim
was presented to the CO prior to MRA bringing it in this Court.

       In this case, discerning the basis for MRA’s claim of entitlement to an equitable
adjustment is a challenge. Its complaint cites the changes clause and alleges that the VA directed
changes in the scope of the contract. The complaint does not, however, identify what those
changes to the scope of the contract were or what additional services it performed as a result of
the changes. Thus, it is not at all clear based on MRA’s complaint whether it is seeking an
adjustment based on its performance of any of the alleged additional tasks specified in its April
25, 2013 letter or its other correspondence with the VA.

        Nor does MRA’s brief in opposition to the government’s motion to dismiss reference any
specific work that it was required to perform that was outside the scope of the task order as
modified. In that brief, however, MRA does clarify, at least to some extent, the legal theory
underlying its claim before this Court. That theory is apparently based in large part on its rather
novel interpretation of the design within funding limitations clause.

        Thus, MRA observes that its “claims concern the government’s breach of the IDIQ
terms . . . after MRA provided the information that it was impossible to build the Project
according to the requested designs for $2.945 million.” Pl.’s Resp. to Def.’s Mot to Dismiss for
Lack of Subject Matter Jurisdiction & Mot. for Summ. J. (Pl.’s Resp.) at 8, ECF No. 31. It
contends that “[t]he [CO] did not adequately address MRA’s warnings according to its revised
estimate of construction cost, failed to authorize a change in scope, and failed to adjust the
estimated construction contract price.” Id. “Instead,” MRA argues, “the VA insisted on designs
that equated to a $4 million construction budget—fundamentally changing the terms of the task
order.” Id. Thus, “[r]ather than reducing the scope of the task order by eliminating the design of
the two cath labs, the VA required acts beyond the scope of the IDIQ, including redefining the
cath lab designs as ‘alternate deducts’ and ‘bid option.’” Id. “Although the contract
fundamentally changed,” MRA asserts, and despite its “repeated requests,” “the VA failed to
equitably adjust the contract payment to MRA.” Id.


                                                 11
        As noted, MRA’s rather opaque legal theory is based on the notion that the VA failed to
comply with obligations imposed upon it by section 2.14 of the contract, the design within
funding limitations clause. That clause, as described above, required MRA to design the project
within the limitations of the project construction cost set forth in the task order as modified. It
further provided that re-designs to meet the construction cost limitation would be provided by
MRA at no cost to the government, unless unfavorable bids or proposals received were “the
result of conditions beyond its reasonable control.” Def.’s Mot. App. Pt. I at DA27. The clause
further stated that:

               The Contractor will promptly advise the Contracting Officer if it
               finds that the project being designed will exceed or is likely to
               exceed the funding limitations and it is unable to design a usable
               facility within these limitations. Upon receipt of such information,
               the Contracting Officer will review the Contractor’s revised
               estimate of construction cost. The Government may, if it determines
               that the estimated construction contract price set forth in this
               contract is so low that award of a construction contract not in excess
               of such estimate is improbable, authorize a change in scope or
               materials as required to reduce the estimated construction cost to an
               amount within the estimated construction contract price set forth in
               paragraph (c) below, or the Government may adjust such estimated
               construction contract price.

Id.

          According to MRA, the VA violated this clause when—instead of either changing the
scope of the project or the materials required to bring costs down, or adjusting the estimated
construction contract price upward—it “insisted that MRA continue designing the project that it
understood to be in excess of $4 million.” Pl.’s Resp. at 31. “As such,” MRA contends, the VA
“required MRA to provide Project Construction Drawings for a project of a far greater scope
than what was stated in the last modified task order.” Id. It further argues that “[i]f the VA had
decreased the scope of the project, eliminating the design of the cath labs, MRA would not have
been required to expend the hours needed to further said work.” Id. “Alternatively,” MRA posits,
“had the VA increased the stated Project Construction Cost, then MRA would have been entitled
to . . . an increase of its design fee to be within 6% of the Project Construction Cost, according to
the terms established in the IDIQ.” Id. at 31–32.

        As best the Court can understand MRA’s legal theory, it appears to be arguing that once
MRA advised the VA of its belief that the project could not be built within the funding
limitations of the task order as amended, the VA was required to either authorize a change in the
scope or the materials for the project so that it would be cheaper to construct, or to adjust the
construction price upward. The VA, however, did not exercise either of these options. Instead, it
directed MRA to continue its work and complete the design services required by the task order as
modified. Although not entirely clear, it appears to be MRA’s contention that once MRA (and
the VA) understood that construction of the design would be over budget, the services MRA was
providing became attributable to a project other than the one set forth in the task order as
modified. See id. at 41 (arguing that because “the Government chose . . . to demand that the


                                                 12
work continue despite the fact the design would be in excess of the stated Project Construction
Cost” MRA “adequately demonstrated that the contract was constructively changed by
implication . . . and that MRA was forced to design beyond the stated constraints of the IDIQ and
Task Order”); see also Pl.’s Second Suppl. Br. at 2, ECF No. 44 (arguing that “[b]y refusing to
reduce the scope of the work in the face of receiving the MRA estimates . . . the Government
ordered work outside the scope of the contract”). Thus, according to MRA, there was a
“constructive change” in the scope of the contract. What follows from that, according to MRA, is
that it is entitled either to an equitable adjustment for all work it performed after it advised the
VA of its position, or to an increase in its design fee to reflect the upward adjustment in the
construction contract price that the VA was allegedly required to make. The latter contention is
based on MRA’s assertion that if the contract price went up, then its fee would necessarily have
to go up as well by virtue of FAR 15.404-4(c)(4)(i)(B). See Pl.’s Resp. at 7, 12, 31–32.

       The Court agrees with the government that MRA did not present a claim to the CO based
upon this theory of recovery. While the theories of recovery set forth in MRA’s letters to the CO
are themselves almost equally opaque, frequently referring to “changes in scope” without
specifying what those changes were or breaking down their costs, one thing is clear: nowhere in
MRA’s February, April, or May 2013 letters did it ever mention, cite, or even allude to the
design within funding limitations clause. Nor did those letters identify any connection between
any violation of that clause by the VA and the allegedly additional hours of work for which
MRA then claimed compensation.

        While “merely adding factual details or legal argumentation does not create a different
claim, . . . presenting a materially different factual or legal theory” does so. K-Con Bldg. Sys.,
Inc. v. United States, 778 F.3d 1000, 1006 (Fed. Cir. 2015). As the court of appeals has noted,
requests for relief are treated as involving separate claims “if they either request different
remedies (whether monetary or non-monetary) or assert grounds that are materially different
from each other factually or legally.” Id. at 1005 (citing Contract Cleaning Maint., Inc., 811 F.2d
at 592) (emphasis in original). “This approach, which has been applied in a practical way, serves
the objective of giving the contracting officer an ample pre-suit opportunity to rule on a request,
knowing at least the relief sought and what substantive issues are raised by the request.” Id. at
1006.

        In this case, the CO did not have any opportunity to rule on MRA’s claim based on the
design within funding limitations clause, because MRA did not assert that clause as a basis for its
requests for equitable adjustment (either explicitly or implicitly). Further, MRA’s claim based on
the design within funding limitations clause involves the consideration of different operative
facts than the claims it made to the CO. The claim before this Court focuses on whether the VA
ever “determine[d] that the estimated construction contract price set forth in th[e] contract [wa]s
so low that award of a construction contract not in excess of such estimate [wa]s improbable”;
whether the VA was required to have chosen one of the options listed in the clause if it made
such a determination; if so, which choice it would have made; and how that choice or lack
thereof would have affected MRA’s entitlement to additional fees. See Def.’s Mot. App. Pt. I at
DA27. The claims before the CO appear to have involved whether MRA was directly ordered to
perform particular tasks and whether those tasks were within the scope of the task order as
modified. See Def.’s Mot. App. Pt. II at DA193–94.



                                                13
         In any event, even if MRA’s letters could be read to have presented to the CO the claim
that it presses here, the government would be entitled to summary judgment because MRA’s
argument fails on the merits as a matter of law.4 The design within funding limitations clause
imposes only one duty on the VA: that it “review the Contractor’s revised estimate of
construction cost” after the contractor notifies it that the project being designed will likely
exceed the funding limitation. See Def.’s Mot. App. Pt. I at DA27. Then, upon review, “if” the
VA “determines that the estimated construction contract price set forth in th[e] contract is so low
that award of a construction contract not in excess of such estimate is improbable,” it
“may . . . authorize a change in scope or materials as required to reduce the estimated
construction cost to an amount within the estimated construction contract price . . . or the
Government may adjust such estimated construction contract price.” Id. (emphasis added).

        In this case, even assuming that the CO had agreed with MRA that the construction cost
estimate was too low, the VA was not obligated to choose one of the options set forth in the
clause; the options were discretionary. See McBryde v. United States, 299 F.3d 1357, 1362 (Fed.
Cir. 2002) (noting that generally the use of the word “may” “conveys some degree of
discretion”). And even if the VA took one of the options set forth in the clause (as MRA
incorrectly claims it was required to do), it is unclear to the Court how doing so would have
entitled MRA to an equitable adjustment unless MRA was, as a result, tasked with providing
additional services (and unless the direction to do so was made in writing as required by the
changes clause). MRA’s argument seems to be grounded in the notion that the scope of the task
order was changed (at least constructively) once it became apparent (at least to MRA) that the
cost of the project would be higher than the project’s construction estimate as set forth in the task
order as modified. At that point, MRA posits, it was in effect performing design services for a
different, “larger” project than the one set forth in the task order. But this argument lacks logic
and is unsupported by any legal authority. There was no change in the nature of the services that
MRA was required to perform as a result of its higher construction cost estimate. Nor was the
project itself changed or made “larger.” All services MRA performed after it advised the VA of
its view that the construction cost estimate was too low continued to be based on the
requirements of the task order as modified.

        Finally, even assuming the claim was before the Court, neither the changes clause nor the
design within funding limitations clause provides a right to recovery when coupled with MRA’s
arguments regarding FAR 15.404-4(c)(4)(i)(B). That provision states that a CO “shall not
negotiate a price or fee that exceeds . . . [f]or architect-engineer services . . . 6 percent of the
estimated cost of construction.” In other words, the architect’s fee (set by the task order prior to
design) may not be more than 6% of the estimated construction cost. This clause does not,
however, entitle MRA to receive a fee that is 6% of the final construction cost estimate or the
actual construction cost (unless such a fee is agreed to by the parties). Thus, even if the VA had

4
  The standards for granting summary judgment are well established. Summary judgment may be
granted where there is no genuine issue of material fact and the movant is entitled to judgment as
a matter of law. RCFC 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact
is material if it “might affect the outcome of the suit under the governing law.” Anderson, 477
U.S. at 248. An issue is genuine if it “may reasonably be resolved in favor of either party.” Id. at
250.



                                                 14
adjusted the estimated construction cost upward, that adjustment would have had no effect on the
fee MRA was entitled to receive.

                                        CONCLUSION

        For the reasons set forth above, the government’s motion to dismiss is GRANTED and
Plaintiff’s complaint is DISMISSED without prejudice. The Clerk is directed to enter judgment
accordingly. Each party shall bear its own costs.5

       IT IS SO ORDERED.



                                                    s/ Elaine D. Kaplan
                                                    ELAINE D. KAPLAN
                                                    Judge




5
  In its opposition brief, MRA cites the doctrine of superior knowledge and argues that the VA
breached the covenant of good faith and fair dealing and engaged in misrepresentation in its
dealings with MRA. E.g., Pl.’s Resp. at 38–39. The Court declines to consider these claims
(which were not, in any event, made to the CO) because they are not pleaded in the complaint.
See Michels v. United States, 72 Fed. Cl. 426, 431–32 (2006) (“[I]t is axiomatic that a complaint
may not be amended by the briefs in opposition to a motion to dismiss.” (quoting Car Carriers,
Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984) (alteration in original))); see also
Crest A Apartments Ltd. II v. United States, 52 Fed. Cl. 607, 613 (2002).



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