Navajo Health Foundation-Sage Memorial Hospital, Inc. v. Burwell (110 F. Supp. 3d 1140, 2015)

United States District Court for the District of New Mexico 2015-06-17

Indians Public Contracts

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES 0. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Plaintiffs Motion for Summary Judgment on its Fourth Claim for Relief, with Memorandum of Supporting Points and Authorities, filed January 26, 2015 (Doc. 27)(“MSJ”); (ii) the Motion to Vacate and Reschedule Hearing on Plaintiffs Motion for Summary Judgment, filed April 1, 2015 (Doc. 56)(“Motion to Vacate”); and (iii) the Defendants’ Motion for Leave to File Surreply, filed April 7, 2015 (Doc. 60)(“Motion to File Surreply”). The Court held a hearing on the Motion to Vacate and on the Motion to File Surreply on April 10, 2015, and a hearing on the MSJ on April 22, 2015. The primary issues are: (i) whether the Court should grant the Motion to File Surreply; (ii) whether the Court should grant the Motion to Vacate; (iii) whether to deem Plaintiff Navajo Health Foundation — Sage Memorial Hospital’s Contract Disputes Act Claim for Unpaid Contract Support Costs[] Due in FY 2009 through FY 2013 Under Indian Self-Determination and Education Assistance Act Contracts and Annual Funding Agreements, filed January 26, 2015 (Doc. 27-l)(“Claim”), denied, because Defendant Frank Dayish has failed to provide a date certain by which he will decide the Claim; and (iv) whether, even if the Claim is not deemed denied, Dayish’s proposed fourteen-month period to decide the Claim is reasonable under, the Contract Disputes Act, 41 U.S.C. §§ 7101-09 (“CDA”). The Court will grant the Motion to File Surre-ply, because Sage Hospital raises new arguments in the Reply to Defendants’ Opposition to Plaintiffs Motion for Summary Judgment, filed March 19, 2015 (Doc. 53)(“MSJ Reply”), to which Defendants Sylvia Matthews Burwell, Secretary of Health and Human Services (“HHS”), Robert McSwain, Acting Director of Indian Health Services, John Hubbard, Jr., Area Director of Navajo Area Indian Health Services, and Dayish (collectively, the “Defendants”) should be allowed to respond. The Court will deny the Motion to Vacate, because vacating and continuing the April 22, 2015, hearing on the MSJ would prejudice Sage Hospital, and because the Defendants’ sole reason for vacating and continuing the hearing — that Paula Lee, the Defendants’ preferred attorney, will not be able to attend in person — ameliorated by allowing Ms. Lee to appear at the hearing via videoconference. Finally, the Court will grant the MSJ on two grounds. First, the Court will deem the Claim denied, because Dayish has not given Sage Hospital a “date certain” by which he will decide the Claim; rather, he conditioned his October 21, 2015, deadline upon Sage Hospital’s cooperation. Second, even if Dayish had given Sage Hospital a date certain by which he will decide the Claim, his proposed fourteen-month period for deciding the Claim is unreasonably long under the CDA. Accordingly, even if the Court did not deem the Claim already denied, it would order Dayish to approve or deny the Claim by July 25, 2015.

FACTUAL BACKGROUND

“Sage is a health care facility in Ganado, Arizona, within the exterior boundaries of the Navajo Reservation.” MSJ ¶ 1, at 2 (setting forth this fact). See Defendants’ Opposition to Plaintiffs Motion for Summary Judgment ¶ 1, at 9, filed February 26, 2015 (Doc. 48) (“Response”) (not disputing this fact); Declaration of Stenson Wauneka ¶ 3, at l, filed December 22, 2014 (Doc. 17-1) (“Wauneka Deck”). “Sage is a Navajo tribal organization] for the purpose[ ] of contracting with IHS under the [Indian Self-Determination Education Assistance Act].” MSJ ¶ 1, at 2 (setting forth this fact). See Response ¶ 1, at 9 (not disputing this fact); Wauneka Deck ¶ 3, at 1. “IHS is an agency within the Department of Health and Human Services and is responsible for providing federal health services to American Indians and Alaska Natives.” MSJ ¶ 2, at 2 (setting forth this fact). See Response ¶ 2, at 9 (not disputing this fact); About IHS, filed December 29, 2014 (Doc. 17-1).

“Since 2004, Sage has contracted with IHS under the ISDEAA to provide health services to a largely Navajo patient population.” MSJ ¶ 3, at 2 (setting forth this fact). See Response ¶ 3, at 9 (not disputing this fact); Declaration of Christi El-Meligi ¶ 3, at 5, filed December 22, 2014 (Doc. 17-1) (“El-Meligi 1st Deck”). “Defendant [Frank] Dayish is the Contracting Officer [ (‘CO’) ] for the Navajo Area IHS.” MSJ ¶ 4, at 3 (setting forth this fact). See Response ¶4, at 9 (not disputing this 'fact); Declaration of Christi El-Meligi ¶4, at 2, filed January 26, 2015 (Doc. 27-1) (“El-Meligi 2d Decl.”). “Dayish is responsible for ISDEAA contracts and funding agreements for IHS programs, functions, services and activities undertaken by ISDEAA contractors within the Navajo Area of IHS, including Sage.” MSJ ¶ 4, at 3 (setting forth this fact). See Response ¶ 4, at 9 (not disputing this fact); El-Meligi 2d Decl. ¶ 2, at 1. “Dayish has exercised the authority to sign ISDEAA contracts and funding agreements with Sage for such IHS programs and to award funds pursuant to those agreements.” MSJ ¶ 4, at 3 (setting forth this fact). See Response ¶ 4, at 9 (not disputing this fact); El-Meligi 2d Decl. ¶ 2, at 1. “As Contracting Officer, Dayish has exercised the authority to decide initially disputes arising under ISDEAA contracts.” MSJ ¶ 4, at 3 (setting forth this fact). See El-Meligi 2d Decl. ¶ 2, at 1.

1. The IHS’ Process for Resolving CSC Claims.

“Over 1,600 CSC CDA[] claims have been presented to IHS.” Response at 13 (setting forth this fact). See Declaration of Susan Blair ¶ 4, at 3, filed February 26, 2015 (Doc. 48) (“Blair 1st Decl.”).

Upon receipt of a [CSC] claim, the IHS CO sends a letter acknowledging the claims, requesting] additional documentation and explanation of the claims that are not available to IHS and are necessary to complete its analysis, and sets forth a date for responding to those claims.

Response ¶ 4, at 9 (setting forth this fact). See Blair 1st Decl. ¶ 13, at 5; id. ¶ 15, at 6; Declaration of Frank Dayish ¶¶ 17-19, at 4-5 (dated Feb. 26, 2015), filed February 26, 2015 (Doc. 48-1) (“Dayish Decl.”). “Due to the complexity of the CSC claims, as well as IHS’s goal to ensure consistency in the analysis of all claims, the claims are then analyzed by an IHS team that includes financial analysts and staff from the appropriate IHS Area Office, including the CO.” Response ¶ 4, at 9 (setting forth this fact). See Blair 1st Decl. ¶ 13, at 5; Dayish Decl. ¶ 7, at 3. “IHS hired an outside financial accounting firm, Cotton & Co., additional staff in its Office of Finance and Accounting (OFA), and new attorneys in the HHS Office of the General Counsel, to assist in handling the claims.” Response at 13 (setting forth this fact). See Blair 1st Decl. ¶ 5, at 3. “In addition, numerous staff in IHS’s twelve Area Offices, thirty attorneys in the HHS Office of General Counsel, as well as numerous attorneys in the U.S. Attorney’s Office, are assisting in tracking, evaluating, and resolving the CSC CDA claims.” Response at 13 (setting forth this fact). See Blair 1st Decl. ¶¶ 6-7, at 3-4. “Extensive documentation is needed to evaluate the claims, and the analysis is complex.” Response at 13 (setting forth this fact). See Blair 1st Decl. ¶¶ 13-15, at 5-6.

“After IHS completes its analysis of the tribal contractor’s claims, it notifies the tribal contractor of the results of the analysis or reaches out to the tribal contractor and typically its legal counsel and financial expert to discuss the claims.” Response ¶ 4, at 9 (setting forth this fact). See Blair 1st Decl. ¶ 16, at 6-7. “The IHS’s legal counsel, financial experts, and frequently IHS Area Office staff participate in these meetings.” Response ¶ 4, at 9 (setting forth this fact). See Blair 1st Decl. ¶ 13, at 5-6; id. ¶ 16, at 6-7. “IHS is attempting to resolve the claims expeditiously and in cooperation with tribal contractors, without resorting to litigation.” Response at 13 (setting forth this fact). See Blair 1st Decl. ¶¶ 8-10, at 4. “[Ijnformation needed is not readily apparent from financial documents and, instead, requires in-depth conversations between the financial experts for both the tribe and IHS in order for the parties to reach an understanding.” Response at 13 (setting forth this fact). See Blair 1st Decl. ¶¶ 14-16, at 6-7.

Most of the time, IHS and the tribal contractor are able to reach an understanding about the eligible costs actually incurred by the tribal contractor but not paid by the IHS as CSC under the tribal contractor’s ISDEAA contract and annual funding agreement, allowing the parties to quickly settle the claims at the next step of the CDA process.

Response ¶ 4, at 9-10 (setting forth this fact). See Blair 1st Decl. ¶ 16, at 6-7. “[I]t is the IHS’s goal to work cooperatively with tribal contractors to exchange relevant documents and discuss the claims pri- or to issuing its final decision.” Response ¶4, at 10 (setting forth this fact). See Blair 1st Decl. ¶ 17, at 7. This process “is time consuming and resource intensive, and the time required to respond to each claim is heightened due to the complexity of each claim, the total number of claims being addressed by IHS, and the time needed to meet with and discuss the claims with tribal contractors.” Response at 5 (setting forth this fact). See Blair 1st Decl. ¶ 14, at 6; id. ¶ 18, at 7. “As IHS continues to make progress in resolving the claims, the majority of which have already been resolved, IHS does anticipate that the time required to reach resolution will be shortened.” Response at 13 (setting forth this fact). See Blair 1st Decl. ¶ 18, at 7

2. Sage Hospital’s CSC Claim.

“By letter dated August 25, 2014 to Defendant Dayish, Sage submitted to IHS a CSC claim for FY 2009 through FY 2013 for a total of $62,569,681.” MSJ ¶ 5, at 3 (setting forth this fact). See Response ¶ 5, at 10 (not disputing this fact); El-Meligi 2d Decl. ¶ 3, at 1. “Sage submitted approximately 270 pages of documents with its CDA claims letter for $62,569,681, including Sage’s audited financial statements for (FYs) 2009-2013.” Response ¶ 5, at 10 (setting forth this fact). See Reply to Defendants’ Opposition to Plaintiffs Motion for Summary Judgment at 11-15, filed March 19, 2015 (Doc. 53) (“Reply”) (not disputing this fact); Claim passim. Sage Hospital also submitted “contracts and funding agreements between Sage and IHS in the custody of IHS, a Schedule of Attachments A and B prepared by Sage showing details of the CSC shortfalls, expectancy damages, and total claim.... ” MSJ ¶ 6, at 3 (setting forth unmodified version of this fact). See Claim passim,

“Sage 'did not rely on IHS’ reports to Congress, and Sage’s claim expressly states that Sage has used the method of calculating the shortfall preferred by IHS, namely, full amount of CSC minus amount of CSC paid.” Reply ¶ 4A, at 11 (internal quotation marks omitted) (setting forth this fact). See Surreply in Opposition to Plaintiffs Motion for Summary Judgment passim, filed April 7, 2015 (Doc. 60) (“MSJ Surreply”) (not disputing this fact); Claim at 2; Spreadsheets of Sage Hospital’s CSC at 2, filed January 26, 2015 (Doc. 27-2) (“CSC Spreadsheets”); McGee Decl. ¶ 3, at 1. “The Claim specifies, [for FYs 2009-13,] the CSC shortfall based on the full amount of CSC incurred by Sage minus the amount of CSC paid by IHS, the expectancy damages from lost billings, and the total claim for each such year.” MSJ ¶ 6, at 3 (setting forth this fact); Response ¶ 6, at 10 (not disputing this fact). See Claim at 1. “The Claim ... explains the expectancy damages claim for lost third-party revenues and the manner of calculating them.” MSJ ¶ 6, at 7-8 (setting forth unmodified version of this fact). See CSC Spreadsheets at 2.

3. Dayish’s Response to the Claim..

Dayish responded to the Claim with a letter “based on a template designed to ensure consistent responses to all tribes with CSC claims” that was dated October 23, 2014. Response ¶7, at 11 (setting forth unmodified version of this fact). See Reply ¶ 3, at 11 (not disputing this fact); Letter from Frank Dayish, Contracting Officer, Navajo Area Indian Health Service to Stenson D. Wauneka, Board President, Navajo Health Foundation-Sage Memorial Hospital Inc. (Oct. 23, 2014), filed January 26, 2015 (Doc. 27-17) (“Dayish Ltr.”). The Dayish Ltr. states, in pertinent part:

On August 27, 2014, I received your letter dated August 25, 2014. The letter makes a claim under the Contract Disputes Act and the Tribe’s Indian Self-Determination and Education Assistance Act (ISDEAA) contract for fiscal year 2009, alleging “damages arising out of the failure of [IHS] to p'ay full contract support costs (including indirect costs and direct contract supports).”

Because your claim exceeds $100,000, the CDA requires that the Indian Health Service (IHS) either issue a decision on the claim within 60 days of the date of receipt or notify the contractor when it will issue the decision. 41 U.S.C. . § 7103(f)(2); 25 C.P.R. § 900.223(a). At this time, the IHS has not had an opportunity to adequately review and make a final decision on your claim for a variety of reasons, including the size, complexity, age, and lack of specificity of your claim and the inadequacy of supporting documentation submitted with the claim. In addition, the IHS would like to work cooperatively with the Navajo Health Foundation-Sage Memorial Hospital Inc. (NHF-SMH) to exchange relevant documents and discuss.the claims prior to issuing its response. In consideration of these factors and based upon the anticipated cooperation of the NHF-SMH, I will issue a final contracting officer’s decision by October 21, 2015.

NHF-SMH can assist IHS in responding to the claim by providing additional documentation. NHF-SMH did not submit sufficient information to provide a basis for IHS to determine the validity of the NHF-SMH’s claim that it is owed additional contract support costs (CSC) funds. Although IHS will refer to the contract documents that are in the Agency’s possession to begin analyzing the claim, we have found that those documents often are insufficient to determine the amount of reasonable, allowable, and non-duplicative CSC that NHF-SMH actually incurred. At least part of your claim appears to be based on the annual IHS CSC report fo Congress, but that report is merely a budget planning tool that is not based on audited figures and, therefore, does not establish the amount of allowable CSC incurred by the NHF-SMH or the amount of any deficiency in CSC funding. Accordingly, IHS requests that NHF-SMH submit information of actual CSC incurred in the years at issue. Relevant documentation may include:

1) Documents showing actual expenditures for direct costs associated with operation of the ISDEAA programs for each fiscal year at issue.

2) Documents showing the Tribe’s indirect costs for each fiscal year at issue.

3) Documents showing the Tribe’s actual capital expenditures, pass-through amounts, and other exclusions associated with the operation of the ISDEAA programs for each fiscal year at issue.

(4) Any additional documentation in the NHF-SMH’s possession that will assist IHS in determining which of NHF-SMH’s expenditures meet the ISDEAA definition of CSC in section 106(a)(2) and do not duplicate costs funded in the section 106(a)(1) amount.

Lastly, the IHS requests that NHF-SMH provide further explanation for the methodology used to calculate the amount of additional CSC funds it claims is owed. For example, the “shortfall” claim appears to be based directly on the annual report to Congress. That report is merely a budget planning tool, however, and does not demonstrate the amount of CSC incurred by NHF-SMH. Similarly, we have no information demonstrating your expectancy damages claims. If you have detailed information demonstrating the calculation of each of these claims, IHS can review your claim more thoroughly and respond more quickly.

The requested information should be sent electronically to Alva R. Tom atalva.tom@ihs.gov or mailed in hardco-py to the following address within forty-five (45) days from the date of this letter:

Navajo Area Indian Health Service

Office of Indian Self Determination

Attention: Alva R. Tom

P.O. Box 9020

Window Rock, AZ 86515

Should NHF-SMH need additional time to provide the requested documentation, please send notice in writing of the date by which NHF-SMH intends to respond, and a request for an additional extension of time for IHS to consider the documentation before making its decision. If IHS does not receive any response, the Agency will consider the lack of specificity and the inadequacy of supporting documentation in making its decision. IHS hopes that this will not be necessary and looks forward to working with NHF-SMH on a timely and expeditious resolution of its claim.

Dayish Ltr. at 1-2.

In an effort to treat all tribal contractors fairly, IHS made a policy decision, which has been communicated to all tribal contractors (and agreed upon by many tribal contractors whose claims were pending before the Civilian Board of Contract Appeals (CBCA)[]), to attempt to review and resolve the claims in the order they were received; i.e., the earliest or oldest claims first, followed by the claims’ received more recently.

Response at 14 (setting forth this fact). See Reply at 6-8 (not disputing this fact); Blair 1st Decl. ¶ 9, at 4. “Sage’s claims are the most recently filed CSC CDA claims in the Navajo Area IHS.” Response at 14 (setting forth this fact). See Dayish Decl. ¶ 21, at 5.

“[A]ll of the tribal contractors in the Navajo Area IHS with ISDEAA contracts have filed CSC CDA claims against the IHS, and IHS’s determination on the time required to respond to Sage’s claims was informed by the Area’s experience with resolving those other claims.” Response ■at 14 (setting forth this fact). See Dayish Decl. ¶¶ 8-12, at 3-4; id. ¶ 14, at 4; id. ¶ 17, at 4. “In general, it has taken approximately two years to resolve such claims with the Navajo Area ISDEAA contractors.” Response at 14 (setting forth this fact). See Dayish Decl. ¶ 14, at 4. Dayish “informed Sage that he would issue a final decision by October 21, 2015, based on his good faith estimate of the amount of time that would reasonably be needed [to] evaluate and assess the claims, based on this prior experience in the Navajo Area and throughout IHS.” Response at 14 (setting forth this fact). See Dayish Decl. ¶¶ 14, 17, at 4. “In addition, Sage’s claims for $62 million are larger than the majority of CSC CDA claims filed against the IHS.” Response at 14 (setting forth this fact). See Dayish Decl. ¶ 16, at 4.

The evaluation and assessment of Sage’s CSC claims likely will take longer than for other CSC claims because of the separate (but related) issue of the significant offset and counterclaims that IHS will likely need to assert against Sage due to [the IHS’s contention that Sage Hospital] significantly] misuse[d] and mismanage[d] IHS funds, as disclosed by the forensic audit conducted by an outside contractor, Moss Adams.[]

Response at 14 (setting forth unmodified version this fact). See Dayish Decl. ¶¶ 22-23, at 5-6.

PROCEDURAL BACKGROUND

Sage Hospital filed this case in federal court on October 23, 2014. See Complaint, filed October 23, 2014 (Doc. 1). Sage Hospital filed the First Amended Complaint on November 24, 2014, asserting four causes of action. See Doc. 5 (“FAC”). First, Sage Hospital contends that the IHS’ declination of Sage Hospital’s August 22, 2013, three-year contract proposal for FY 2014 (“FY 2014 Proposal”) violates 25 U.S.C. § 450f(b)(2), and 25 C.F.R. §§ 900.32 and 900.33. See FAC ¶ 55, at 23. Sage Hospital asks the Court for immediate injunctive relief to: (i) reverse the IHS’ declination of the FY 2014 Proposal; (ii) compel Burwell to award and fund the FY 2014 Proposal; (iii) provide coverage for Sage Hospital and its employees under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (“FTCA”); (iv) restore Sage Hospital’s ability to purchase pharmaceuticals and other supplies from its suppliers; and (v) cease the IHS’ public disparagement of Sage Hospital. FAC ¶¶ 54-56, at 23-24. Sage Hospital points out that, because the ISDEAA provides for both injunctive and mandamus relief, it does not need to establish the traditional equitable grounds for obtaining injunctive relief. See FAC ¶ 56, at 24.

Sage Hospital argues that, even if had to demonstrate the traditional equitable grounds for obtaining injunctive relief, those traditional grounds are easily met here. See FAC ¶ 57, at 24. Sage Hospital contends that the IHS’ declination of the FY 2014 Proposal is causing Sage Hospital immediate and irreparable injury, because it threatens to ruin Sage Hospital’s healthcare business, force it to close, and cause it to lose its patients’ good will. See FAC ¶ 57A, at 24. Sage Hospital asserts that it will likely succeed on the case’s merits, because the Defendants clearly violated the ISDEAA and its implementing regulations. See FAC ¶ 57B, at 24. Sage Hospital points out that 25 C.F.R. § 900.33 prohibits the IHS from declining to renew Sage Hospital’s ISDEAA contract based on performance concerns to the extent that there were no material and substantial changes to the scope or funding of Sage Hospital’s programs and services. See FAC ¶ 57B, at 24. Sage Hospital asserts that 25 C.F.R. § 900.32 prohibits the IHS from declining Sage Hospital’s annual funding agreement for FY -2014, because that proposed agreement was substantially the same as the one that the IHS approved for FY. 2013. See FAC ¶ 57B, at 24. Sage Hospital says that the IHS’ refusal to provide Sage Hospital with technical assistance to address the IHS’ concerns is “eon-cededly in violation of 15 U.S.C. § 450f(b)(2).” FAC ¶576, at 24. Sage Hospital argues that the balance of hardships tips in its favor, because, while an injunction will merely require the Defendants to comply with federal law, the Court’s failure to order an injunction will ruin Sage Hospital’s business and cause two hundred Sage Hospital employees to lose their jobs. See FAC ¶ 57C, at 24. S.age Hospital asserts that an injunction will also be in the public interest, because it will allow American Indians to get much-needed and high-quality healthcare at Sage Hospital rather than obtaining lower-quality healthcare at more distant IHS facilities. See FAC ¶ 57D, at 25.

Second, Sage Hospital contends that the IHS’ declination of Sage Hospital’s September 19, 2014, proposal for FY 2015 (“FY 2015 Proposal”) — to the extent that it is substantially the same as the FY 2014 Proposal — violates 25 U.S.C. § 450f(b)(2), and 25 C.F.R. §§ 900.32 and 900.33. See FAC ¶¶ 59-60, at 25. Sage Hospital asks the Court for immediate injunctive relief to: (i) reverse the IHS’ declination of the FY 2015 Proposal to the extent that it is substantially the same as the FY 2014 Proposal; (ii) compel Burwell to award and fund the FY 2015 Proposal to the extent that it is substantially the same as the FY 2014 Proposal; (iii) provide FTCA coverage for Sage Hospital and its employees; (iv) restore Sage Hospital’s ability to purchase pharmaceuticals and other supplies from its suppliers; and (v) cease the IHS’ disparagement of Sage Hospital’s business. See FAC ¶¶ 61, at 25. Sage Hospital reiterates that, because the IS-DEAA provides for both injunctive and mandamus relief to remedy violations of the ISDEAA and its implementing regulations, it does not need to prove the traditional equitable grounds for obtaining in-junctive relief. See FAC ¶ 61, at 25.

Sage Hospital argues that, even if it had to demonstrate the traditional equitable grounds for obtaining injunctive relief, those grounds are easily met. See FAC ¶ 62, at 25-26. Sage Hospital contends that IHS’ declination of the FY 2015 Proposal is causing Sage Hospital immediate and irreparable injury, because it threatens to ruin Sage Hospital’s healthcare business, to force it to close, and to cause it to lose its patients’ good will. See FAC ¶ 62A, at 26. Sage Hospital asserts that it will likely succeed on the case’s merits, because the Defendants clearly violated the ISDEAA and its implementing. See FAC ¶ 62B, at 26. Sage Hospital points out that 25 C.F.R. § 900.33 prohibits the IHS from declining to renew Sage Hospital’s ISDEAA contract on performance concerns where there are no material and substantial changes to the scope or funding of Sage Hospital’s programs and services. See FAC ¶ 62B, at 26. Sage Hospital asserts that 25 C.F.R. § 900.32 prohibits IHS from declining Sage Hospital’s annual funding agreement for FY 2015 to the extent that the agreement is substantially the same as those that the IHS approved in FY 2013 and 2014. See FAC ¶ 62B, at 26. Sage Hospital says that IHS’ refusal to provide Sage Hospital with technical assistance to address the IHS’ concerns is “concededly in violation of 15 U.S.C. § 450f(b)(2).” FAC ¶ 62B, at 26. Sage Hospital reiterates that the balance of hardships tips in its favor, because, while an injunction will merely require the Defendants to comply with federal law, the Court’s failure to order an injunction will ruin Sage Hospital’s business and cause two hundred Sage Hospital employees to lose their jobs. See FAC ¶ 62C, at 26. Sage Hospital argues that an injunction will also be in the public interest, because it will allow American Indians to get much-needed and high-quality healthcare at Sage Hospital, rather than obtaining compromised quality care at more distant IHS facilities. See FAC ¶ 62D, at 26-27.

Third, Sage Hospital asserts that, because it is entitled to immediate injunctive relief to reverse the IHS’ declination of the FY 2014 Proposal and to compel the Defendants to award and fund the FY 2014 Proposal, the Defendants are required to pay Sage Hospital the full amount requested in the FY 2014 annual funding agreement. See FAC ¶ 64, at 27. ■ Sage Hospital contends that, under the ISDEAA, it is entitled to an accounting of funds that the IHS provided to Sage Hospital from October 1, 2013, to the date of judgment. See FAC ¶ 66, at 27.

Fourth, Sage Hospital argues that IHS violated the CDA. See FAC ¶¶ 67-72, at 27-29. Sage Hospital explains that it submitted the Claim on August 25, 2014. See FAC ¶ 68, at 27. According to Sage Hospital, the Claim specifies, for each FY from 2009 to 2013, Sage Hospital’s total CSC shortfall. See FAC.¶ 69, at 27-28. Sage asserts that IHS responded to the Claim with “an inapplicable form letter,” and that the IHS’ proposed date for deciding the Claim — 21, 2015 — is unreasonable, because the Claim and its exhibits provide all of the information that the IHS needs to decide the Claim. FAC ¶¶ 70-71, at 28. Sage Hospital argues that, consequently, the Dayish Ltr. violates the CDA. See FAC ¶ 71, at 28. Sage Hospital, accordingly, asks the Court to direct the IHS to issue a decision on the Claim in a specified period of time that the Court finds reasonable. See FAC ¶ 72, at 29.

1. The MSJ.

Sage Hospital filed the MSJ on January 26, 2015. In the MSJ, Sage Hospital asks the Court to award summary judgment in its favor on Count IV — ie., Sage Hospital’s claim that the IHS’ decision to take fourteen months to approve or to deny the Claim is unreasonable under the CDA. See MSJ at 14-20. Sage Hospital argues that the ISDEAA favors prompt resolution of claims and the provision of necessary funds to tribal organizations. See MSJ at 6 (citing S.Rep. No. 100-274 at 2-3 (1987)). Sage Hospital maintains that 25 C.F.R. § 900.233(a) mandates that, “if the claim is for more than $100,000, the awarding official shall issue the decision within 60 days of the day he or she receives the claim. If the awarding official cannot issue a decision that quickly, he or she shall tell you when the decision will be issued.” MSJ at 14 (quoting 25 C.F.R. § 900.233(a)) (internal quotation marks omitted) (emphasis in MSJ but not in regulation). According to Sage Hospital, the CDA provides that contracting' officers must issue decisions on claims over $100,000.00 “within a reasonable time, ... taking into account such factors as the size and complexity of the claim and adequacy of information in support of the claim provided by the contractor.” MSJ at 14 (quoting 41 U.S.C. § 7103(f)(3))- (internal quotation marks omitted). Sage Hospital says that the CDA authorizes the Court to order the Defendants to “issue a decision in a specified period of time ... in the event of undue delay on the part of the contracting officer.” MSJ at 14 (quoting 41 U.S.C. § 7103(f)(4)) (internal quotation marks omitted).

Sage Hospital urges that, because the Claim and its exhibits provide all of the information necessary for the IHS to decide the Claim, “IHS’ action in giving itself one year and eight weeks to decide the Claim is unreasonable.” MSJ at 14. According to Sage Hospital, the Claim consists of: (i) a three-page narrative; (ii) two attachments, which total fourteen pages; (iii) a “Schedule of Agreed Upon Procedures for Contract Support Costs for FY 2009-2013,” which consists of one page; and (iv) Sage Hospital’s audited financial statements for FYs 2009-13, which consist of approximately 255 pages. MSJ at 14-15 (citation omitted). Sage Hospital contends that the Claim is neither lengthy nor complex. See MSJ at 15 (citing Def. Sys. Co., ASBCA No. 50534, 97-2 BCA ¶ 28,-981, 1997 WL 217392 (1997)(noting that a seventy-one-million-dollar CDA claim consisting of a 162-page narrative and a volume containing forty-nine exhibits was complex)).

Sage Hospital points to Kelly-Ryan, Inc., ASBCA No. 57168, 11-1 BCA ¶ 34, 629, 2010 WL 5071059 (2010), in which, according to Sage Hospital, the Civilian Board of Contract Appeals observed that “ ‘[w]e have found no Board cases, nor have we been cited to any by the parties, that have held more than 9 months to be a reasonable period of time within which to issue a CO’s final decision.’ ” MSJ at 15-16 (quoting Kelly-Ryan, Inc., 2010 WL 5071059, at *1)(alterations in MSJ but not in source) (emphases in MSJ but not in source). Sage Hospital also cites Fru-Con Construction Corp., ASBCA No. 53544, 02-1 BCA ¶ 31,729, 2002 WL 75878 (Jan. 15, 2002). See MSJ at 16. In that case, according to Sage Hospital, the Board of Contract Appeals found that a contracting officer’s seven-and-a-half month delay in issuing a decision on a $35,582,600 CDA claim — detailed in a twenty-eight-page narrative, a fifty-four-page cost-impact analysis, and a one-volume appendix — was unreasonable. See MSJ at 16 (citing Fru-Con Const. Corp., 2002 WL 75878, at *1; Dillingham/ABB-SUSA, ASBCA No. 51195, 98-2 BCA ¶ 29,778, 1998 WL 258456, at *1 (1998)(holding that there was “no justification at all” for contracting officer’s fourteen-month delay in issuing a decision on a $4,885,556.00 CDA claim)).

Sage Hospital contends that it is entitled to summary judgment on Count IV, because there are no genuine issues of material fact. See MSJ at 17. Sage Hospital says that the Defendants do not dispute the Claim’s content or when Sage Hospital filed the Claim. See MSJ at 17. Sage Hospital maintains that, similarly, the IHS’ response to the Claim — which states that the IHS will take fourteen months to issue a decision on the Claim — is not in dispute. See MSJ at 17. Sage Hospital urges that whether fourteen months is a reasonable period to decide the Claim is a question of law that the Court should answer in Sage Hospital’s favor. See MSJ at 17.

The Defendants responded to the MSJ on February 26, 2015. See MSJ Response at 1. In the Response, the Defendants ask the Court to deny the MSJ, because Sage Hospital has failed to demonstrate that fourteen months is an unreasonably long period for deciding the Claim. See MSJ Response at 15. The Defendants assert that Sage Hospital has the burden of showing that fourteen months is an unreasonable delay for deciding the Claim. See MSJ Response at 15 (citing Design One Bldg. Sys., Inc. v. Dep’t of Veterans Affairs, CBCA 2423, 11-1 BCA P 34766, 2011 WL 2165863 (May 27, 2011) (‘Design One ”)). According to the Defendants, in Design One, the tribal organization asked the Civilian Board of Contract Appeals to direct the United States Department of Veterans Affairs to issue a decision on its CDA claims sooner than the contracting officer’s proposed date, which was eleven months after the tribal organization submitted the claims. See MSJ Response at 15 (citing Design One, slip op. at 2). The Defendants explain that the Civilian Board of Contract Appeals denied the request, stating:

The party making a claim bears the burden of proof. Here, Design One is the party asking the Board to direct the contracting officer to issue a decision earlier than November 15, 2011. If CS [the VA’s claims consultant] is correct in thinking that a consultant would need six months to evaluate the contractor’s claims, the decision soon would be in hand if the contracting officer had, after receiving the claims, promptly hired a consultant. Nevertheless, Design One has not provided any evidence that beginning on that date on which it filed its petition, the agency’s estimate of time needed to perform an evaluation is unreasonable. Cónsequently, we do not prescribe a date earlier than November 15, as requested by the contractor.

MSJ Response at 15-16 (quoting Design One, slip op. at 3) (alterations in MSJ Response but not in Design One).

The Defendants urge that ‘“[wjhether the time a CO needs to issue a decision is reasonable must be determined on a case by case basis.’” MSJ Response at 17 (quoting Pub. Warehousing Co., K.S.C., ASBCA No. 56888, 09-2 BCA ¶ 34,265, 2009 WL 3183047 (Sept. 25, 2009)) (alterations in Response but not in source) (citing Eaton Contract Servs., Inc., ASBCA Nos. 52686 & 52796, 00-2 BCA ¶ 31,039 (finding eight-month delay reasonable given the volume of documentation, number of issues, and time needed to gather information because of personnel relocation); Def. Sys. Co., ASBCA No. 50534, 97-2 BCA ¶ 28,981, 1997 WL 217392 (Apr. 25, 1997) (finding nine-month delay reasonable when claimed amount exceeded seventy-one million dollars and the claim’s narrative portion alone exceeded 162 pages)). The Defendants argue that,' “ ‘if the claim is substantial and will require a long period of time to address, then the contracting officer’s only option is to fix a date far enough into the future to assure complete evaluation....’” MSJ Response at 17 (quoting Eaton Contract Sews., Inc., 00-2 BCA ¶ 31,039).

The Defendants’ argue that Sage Hospital has failed to offer any evidence which demonstrates that fourteen months is an unreasonable period for the IHS to decide the Claim. See MSJ Response at 17. The Defendants point out that the evidence which Sage Hospital submitted does not address the Claim’s complexity, the process that the IHS follows to resolve CSC claims, “or the reasonableness of October 21, 2015 as the date on which [Dayish] would issue his decision with respect to Sage’s claims” in light of the complexity of the IHS’ CSC claim process. MSJ Response at 17. The Defendants contend that, to the contrary, Sage Hospital’s evidence “consists only of unverified blanket statements by its legal counsel.” MSJ Response at 17.

The Defendants say that it has clearly shown that the IHS did not unduly delay issuing the Dayish Ltr. and that fourteen months is a reasonable period for deciding the Claim. See MSJ Response at 18. The Defendants assert that the IHS is attempting to resolve CSC claims “expeditiously, as well as consistently and in cooperation with tribal contractors, without resorting to litigation if possible.” MSJ Response at 18. The Defendants argue that, as a general matter, “the process is time consuming and resource intensive,” because of the complexity of CSC claims, the total number of CSC claims that the IHS must resolve, and the time that the IHS needs ■ to discuss the claims with tribal organizations. MSJ Response at 18. The Defendants maintain that, based on the IHS’ experience, one to two years is a reasonable amount of time to resolve a CSC claim. See MSJ Response at 18. The Defendants contend that the IHS’ collaborative approach with tribal organizations in resolving CSC claims is consistent with Congress’ intent in establishing the CDA’s administrative requirements:

The Contract Disputes Act of 1978 provides a fair, balanced, and comprehensive statutory system of legal and administrative remedies in resolving Government contract claims. The act’s provisions help to induce resolution of more contract disputes by negotiation prior to litigation; equalize the bargaining power of the parties when a dispute exists; provide alternate forums suitable to handle the different types of disputes; and ensure fair and equitable treatment to contractors and Government agencies.

MSJ Response at 19 (quoting S.Rep. No. 1118 95th Cong., 2d Sess. 1 (1978), 1978 U.S.C.C.A.N. at 5285) (internal quotation marks omitted).

Sage Hospital replied to the MSJ Response on March 19, 2015. See MSJ Reply at 1. In the MSJ Reply, Sage Hospital contends that the crux of the Defendants’ argument is that the IHS needs more documentation from Sage Hospital to resolve the Claim. See MSJ Reply at 7. Sage Hospital explains that, in Tuba City Regional Health Care Corp. v. United States, 39 F.Supp.3d 66 (D.D.C.2014) (“Tuba City ”), the tribal organization filed its first CSC claim with Dayish on September 17, 2012, and then filed five more claims on November 5, 2012. MSJ Reply at 11 (citing Tuba City, 39 F.Supp.3d at 68). Sage Hospital states that

Dayish responded to the September 17 letter on November 16, 2012[,] stating “I anticipate that I will issue a final contracting officer’s decision by March 16, 2013[,]” and responded to the November 5 letters on January 2, 2013[,] with letters requesting, inter alia, “contract support costs actually incurred by [the tribal organization] during the relevant time period.” The letters stated, “If you submit sufficient information to issue a final decision on your claims as requested above, the IHS anticipates that it will issue a final decision on the claims by May 3, 2013.”

On February 11, 2013, Dayish sent a letter to [the tribal organization] that “purported to grant himself a second extension of the deadline” for the first claim, to May 3, 2013. On April 26, 2013, Dayish sent another letter ... purporting to grant himself additional extensions for all six claims, saying he “anticipated that the IHS would make a decision by October 22, 2013.” [The tribal organization] then sued so that it could pursue its claims without further delay, asserting that its claims had been “deemed denied” as a matter of law by IHS’ failure to decide those claims within a reasonable amount of time.

As in Sage’s case, IHS argued to the district court that [the tribal organization] “ha[d] not provided the documents that it needs to evaluate the claims being made and engage in settlement discussions.” The court ruled that this was irrelevant, because “[t]he CDA provides no exception to the ... timing requirements for claims that the contracting officer later determines to ,be insufficiently supported by documentation.”

Just as in Sage’s case, the Government also argued that “the purpose of the CDA is to induce resolution of more contract disputes by negotiation prior to litigation.” The court found IHS’ invocation of that statutory purpose “particularly inapt[,]” because — again, as in Sage’s ease — “the only way settlement can occur is if the litigation proceeds; otherwise the Government cannot pay judgments out of the Judgment Fund.”

MSJ Reply at 11-12 (citations omitted). According to Sage Hospital, the “court ruled that [the tribal organization’s] claim should be deemed denied by Dayish’s self-granted extensions.” MSJ Reply at 13. Sage Hospital concludes its discussion of the Tuba City case by noting that neither a tribal organization’s failure to properly document its claims nor its failure to adhere to the IHS’ preferred means of settling CSC claims provides a valid basis for the IHS to extend the timeframe for deciding a CSC claim. See MSJ Reply at 13.

Sage Hospital argues that, in any event, it has provided more than adequate information to support the Claim. See MSJ Reply at 8. Sage Hospital says that, consistent with the IHS’ instructions, the Claim does not rely on the IHS’ shortfall reports, but instead details its incurred CSC. See MSJ Reply at 9. Sage Hospital explains that the Claim consists of two parts: (i) the difference between Sage Hospital’s incurred costs and CSC payments for FYs 2009-13, which total $36,258,493.00; and (ii) the third-party revenues that Sage Hospital lost because of the CSC underpayments for FYs 2009-13, which total $26,311,188.00. See MSJ Reply at 9-10. Sage Hospital says that the Claim is straightforward and explains its damages calculation in detail. See MSJ Reply at 10. Sage Hospital points out that, although the Claim “has been the only one awaiting analysis by the Navajo Area IHS,” the IHS has not requested a single document from Sage Hospital “in the more than six months since Sage filed its claim.” MSJ Reply at 8. Sage Hospital argues that, regardless how much time Dayish spends assessing the Claim, he must deny it — and every other tribal organization’s CSC daim — because the IHS has no remaining appropriations to pay CSC claims. See MSJ Reply at 7-8 (citing Letter from Yvette Roubideaux, IHS Director, to Sten-son Wauneka, President of Sage Hospital’s Board of Directors at 2 (dated Oct. 23, 2014), filed January 26, 2015 (Doc. 27-17) (“Roubideaux Ltr.”)).

Sage Hospital argues that much of the MSJ Response is irrelevant to whether Dayish’s proposed fourteen-month time-frame is unreasonable. See MSJ Reply at 13. Sage Hospital asserts that, “without the fluff,” the purported issues of fact that the Defendants assert boil down to “its assertions that Sage’s claims are not supported by sufficient documentation, that Dayish specifically requested that Sage submit documentation relevant to analyzing the amount of actual CSC incurred, ... and that Sage did not clearly explain and provide documentation for its expectancy damages claim.” MSJ Reply at 14. Sage Hospital contends that, even assuming that the Defendants’ statements are correct, they do not create genuine disputes of material fact. See MSJ Reply at 14. Sage Hospital maintains that, as Tuba City explains, assertions of insufficient documentation are irrelevant; rather, “ ‘all that is required is that the contractor submit ... a clear and unequivocal statement that gives the contracting officer adequate notice of the basis and the amount of the claims.’ ” MSJ Reply at 15 (quoting Tuba City, 39 F.Supp.3d at 70-71 & n. 4).

Sage Hospital says that Design One is distinguishable, because the tribal organization in that case hired a consultant to evaluate its CSC claims three months after it submitted them, did not specify a length of time by which the CO’s proposed deadline should be shortened, provided no evidence to support shortening the time-frame, and waited nearly five months after receiving the CO’s letter to file its petition to shorten the timeframe. See MSJ Reply at 21 n. 10 (citing Design One, slip op. at 1-2). Sage Hospital says that, by contrast, its auditor independently evaluated the Claim before Sage Hospital submitted it, Sage Hospital has provided ample evidence supporting its contention that fourteen months is an unreasonable timeframe, Sage Hospital asserted its claim just one month after receiving the Dayish Ltr., and Sage Hospital provided a specific deadline — i.e., January 31, 2015 — that Sage Hospital said was acceptable for Dayish to make his decision. See MSJ Reply at 21. Sage Hospital asserts that, accordingly, Design One is inapposite. See MSJ Reply at 21. Sage Hospital contends that, with the exception of Design One, no Civilian Board of Contract Appeals case has found that a period over nine months was reasonable for a contracting officer to decide a CDA claim. See MSJ Reply at 21.

Sage Hospital urges that it is entitled to summary judgment, because there are no genuine disputes of material fact regarding whether fourteen months is an unreasonable delay for deciding the Claim. See MSJ Reply at 22. Sage Hospital says that, alternatively, the CDA requires COs to unequivocally issue a decision by a specific date without making that decision contingent upon any other factors. See MSJ Reply at 22. Sage Hospital asserts that, because Dayish made the October 21, 2015, deadline for deciding the Claim contingent upon Sage Hospital’s provision of documents, the Court should deem the Claim denied. See MSJ Reply at 22 (citing Tuba City, 39 F.Supp.3d at 70 & n. 2; Orbas & Assoc. v. United States, 26 Cl.Ct. 647, 650 (1992); Aerojet General Corp., ASBCA No. 48136, 95-1 BCA ¶ 27,470, 1995 WL 44259 (Jan. 24,1995)).

Sage Hospital says that the Claim is the only CSC claim pending before Dayish, and that Dayish “has had Sage’s claim, and no other, before him for analysis since late 2014.” MSJ Reply at 19 (internal quotation marks omitted). Sage Hospital points out that, in contrast with most IHS Area offices, the IHS Navajo Area Office only has six ISDEAA contractors. See MSJ Reply at 19 (citing 2012 Report to Congress on Funding Needs for Contract Support Costs of Self-Determination Awards (Based on Fiscal Year 2011 Data), filed March 19, 2015 (Doc. 531)). Sage Hospital says that, of those six contractors, the IHS settled Tuba City’s and Winslow’s CSC claims in September, 2014, has apparently settled and “certainly analyzed” Fort Defiance Hospital’s CSC claim, has engaged in settlement negotiations with the Navajo Nation since “late 2014,” and has engaged in settlement negotiations since “early to mid-2014.” MSJ Reply at 19 (citing Dayish Decl. ¶¶ 8-12, at 3^1).

The Defendants filed a surreply on April 7, 2015. See MSJ Surreply at 1. The Defendants raise four issues in the MSJ Surreply. First, the Defendants assert that the Miller Decl., upon which Sage Hospital relies in the MSJ Reply, is “misleading and inaccurate.” MSJ Surreply at 1-3. The Defendants argue that, contrary to Miller’s statements, the IHS’ CSC claim process demonstrates that the fourteen-month period that Dayish proposes to decide the Claim is reasonable. See MSJ Surreply at 2. The Defendants contend that Miller implies that the IHS issues decision letters on CSC claims as a routine matter, and that “little or nothing is required of [the IHS] before it issues the decisions.” MSJ Surreply at 2. The Defendants assert that, to the contrary, the IHS issues a CSC claim decision only after the IHS and the tribal organization have analyzed and discussed the claim together. See MSJ Surreply at 2 (citing Second Declaration of Susan Blair ¶ 4, at 3 (dated Apr. 7, 2015), filed April 7, 2015 (Doc. 60-2) (“Blair 2d Decl.”)). The Defendants note that, in every case that is pending before Dayish, the claims analysis and discussions between the IHS and the tribal organization occurred before Dayish issued a decision on the CSC claims. See MSJ Surre-ply at 2 (citing Blair 2d Decl. ¶¶ 4, 6-7, at 3-4).

The Defendants explain that, in March, 2013, the IHS adopted two procedural options to allow the IHS and tribal organizations to discuss and analyze CSC claims before the CO issues a formal decision on the claims. See MSJ Surreply at 2. First, the IHS agreed to withdraw CO decision letters, “when a tribal [organization] requested the withdrawal within 90 days of the letter being issued so that the parties could engage in settlement discussions.” MSJ Surreply at 2 (citing Blair 2d Decl. ¶ 7, at 4). Second, the IHS agreed “not to issue new decision letters and to instead issue lengthier extensions of the time to issue a decision letter.”- MSJ Surreply at 2 (citing Blair 2d Decl. ¶ 7, at 4). The Defendants say that Miller and his tribal organization clients have availed themselves of these options. See MSJ Surreply at 2 (citing Blair 2d Decl. ¶ 8, at 4). The Defendants assert that the fourteen-month period, that Dayish proposed to resolve the Claim “is consistent with that process and the time required to resolve claims through the process.” MSJ Surreply at 2.

The Defendants contend that, only after the IHS discusses the CSC claims with the tribal organization — or attempts to do so— does it make a determination about whether to deny it. See MSJ Surreply at 3 (citing Blair 2d Decl. ¶5, at'3). The Defendants state that, while the IHS often denies CSC claims solely on the basis that it lacks sufficient appropriations, the IHS makes that determination “only after the analysis is complete and the parties have reached an understanding.” MSJ Surre-ply at 3 (citing Blair 2d Decl. ¶ 5, at 3). The Defendants explain that, if the parties do not reach an understanding on the tribal organization’s CSC claims, the IHS may ultimately deny the claims on several grounds and even assert counterclaims if the IHS believes that it overfunded the tribal organization. See MSJ Surreply at 3 (citing Blair 2d Decl. ¶ 5, at 3). In the Defendants’ view, the Claim presents additional complicating factors that the IHS must take additional time to analyze, because the IHS must consider the results of “an extensive and detailed forensic audit conducted by Moss[ ] Adams, LLP, which disclosed significant misuse and mismanagement of IHS funding by the tribal contractor.” MSJ Surreply at 3 (citing Blair 2d Decl. ¶ 11, at 5-6). The Defendants say that, accordingly, contrary to Miller’s statements, Dayish’s decision on the Claim “is not a matter of simply rejecting the [Claim] based on lack of appropriations.” MSJ Surreply at 4.

Second, the Defendants insist that the IHS is addressing all CSC claims nationally “based on receipt date.” MSJ Surreply at 4. The Defendants contend that Sage Hospital’s statement that “the only claims pending before IHS CO Frank Dayish and awaiting a CO decision are Sage’s” is false. MSJ Surreply at 4. The Defendants clarify that the Utah Navajo Health System’s and the Navajo Nation’s CDA claims are also pending before Dayish. See MSJ Surreply at 4 (citing Dayish Decl. ¶¶ 11-12, at 4). The Defendants note that, even if the Claim were the only CSC claim before Dayish, that fact would not be dispositive. See MSJ Surreply at 4. The Defendants explain that the Navajo Area IHS Office has not hired its own financial experts to assist in analyzing its CSC claims; rather, the additional staff that the IHS has hired to assist with the influx of CSC claims are all based in the IHS’ Headquarters Office of Finance and Accounting and help all of the IHS Area Offices nationwide in analyzing their CSC claims. See MSJ Surreply at 4 (citing Blair 2d Decl. ¶ 3, at 2). The Defendants urge that, accordingly, the fact that the Navajo Area IHS Office has a smaller number of ISDEAA contracts than other IHS Area Offices does not mean that the IHS can more quickly resolve those claims. See MSJ Surreply at 4 (citing Blair 2d Decl. ¶ 3, at 2). The Defendants state that, to the contrary, the IHS has made a policy decision to attempt to review and resolve the claims in the order in which the IHS received them, without regard to the IHS Area in which the tribal organization is located. See MSJ Surreply at 4 (citing Blair 1st Decl. ¶ 9, at 4).

The Defendants also contest Sage Hospital’s characterization of the CSC claim resolution process as “ ‘IHS’s preferred means of settling CSC claims.’ ” MSJ Surreply at 5 (quoting MSJ Reply at 15). The Defendants say that, to the contrary, the IHS and tribal organizations mutually agreed to this process, and the IHS has used the process to resolve' “almost all” tribal organizations’ CSC claims. MSJ Surreply at 5. The Defendants assert that Sage Hospital similarly mischaraeterizes the Defendants’ opposition to the MSJ as “solely based on Sage’s failure to provide adequate documentation to support” the Claim. MSJ Surreply at 5. The Defendants argue that they have also focused on: (i) “the complexity of the claims”; (ii) “the time needed to analyze the claims and exchange information with tribal contractors about the claims”; (iii) the Claim’s size; (iv) “the potential offset and counterclaims and the forensic audit that are unique to Sage’s claims”; and (v) “the enormous number of CSC CDA claims that IHS is facing nationwide.” MSJ Sur-reply at 5-6.

Third, the Defendants say that the Tuba City decision supports their position and not Sage Hospital’s. See MSJ Surreply at 6. The Defendants explain that, in Tuba City,

after expiration of the initial sixty day period for responding to the claims and one initial extension expired, IHS issued additional extensions to respond to the claims. Before the additional extensions expired, Tuba City filed an appeal in district court. IHS moved to dismiss, on the grounds that Tuba City failed to exhaust its administrative remedies because neither an actual nor deemed final decision on the claims had been issued. IHS argued that additional extensions were reasonable because the claims were complex and Tuba City had failed to provide documentation to evaluate the claims. The Court held that the CO may only extend the deadline for responding to the claims once during the initial sixty day period, and once the deadline passes, the claims are constructively denied.

The only relevance the decision has to this case is the Court’s direction for dealing with complex CDA claims.... Referencing 41 U.S.C. § 7103(f)(2), which provides “[f]or claims over $100,000, the CO shall issue a decision within sixty days or notify the contractor when a decision will be issued if additional time is required,” the Court stated that “[t]he provision allows a contracting officer, if they wish, to pick their own deadline.” “If a claim is complex, the contracting officer can, within 60 days of receipt of the claim, pick a deadline that gives him plenty of time to evaluate the claim.” That is precisely what IHS did in this instance.

MSJ Surreply at 6-7 (emphases omitted) (citations omitted). The Defendants add:

Contrary to Sage’s representations, the Court did not hold that lack of documentation is irrelevant to determining a reasonable time for issuing the CO’s decision. Indeed, such a holding would contravene the plain language of the CDA: “The decision of a contracting officer on submitted claims shall be issued within a reasonable time ... taking into account such factors as the size and complexity of the claim and the adequacy of information in support of the claim provided by the contractor.” 41 U.S.C. § 7103(f)(3).

MSJ Surreply at 7 (citation omitted).

The Defendants also attack Sage Hospital’s contention that the Tuba City decision stands for the proposition that the CDA does not provide an exception to its timing requirements for complex claims. See MSJ Surreply at 7 (citing MSJ Reply at 2). The Defendants insist that the portion of the Tuba City decision upon which Sage Hospital relies refers only to the CO’s attempt to further extend the deadline after the initial extension expired. See MSJ Surreply at 7. The Defendants quote from Tuba City, in which the Civilian Board of Contract Appeals said:

[T]he CDA provides no exception to the § 7103(f) timing requirements for complex claims. If a claim is complex, the contracting officer can, within 60 days of receipt of the claim, pick a deadline that gives him plenty of time to evaluate the claim. Once that deadline passes, however, the claim is deemed denied, no matter how complex it is.

MSJ Surreply at 7 (quoting Tuba City, 39 F.Supp.3d at 70)(internal quotation marks omitted). The Defendants note: “That is precisely what the IHS CO did in this case.” MSJ Surreply at 7.

Fourth, the Defendants challenge Sage Hospital’s argument that the Court should deem the Claim denied, because Dayish made his decision on the Claim contingent upon Sage Hospital’s provision of documents. See MSJ Surreply at 7. According to the Defendants, the CDA mandates that “ ‘[fjailure by a contracting officer to issue a decision on a claim within the required time period is deemed to be a decision by the contracting officer denying the claim.’ ” MSJ Surreply at 8 (emphasis in MSJ Sur-reply) (quoting 41 U.S.C. § 7103(f) (5)). The Defendants maintain that Dayish fully complied with the CDA by issuing a letter acknowledging the Claim and stating a date by which he would issue a final decision on it. See MSJ Surreply at 8 (citing 41 U.S.C. § 7103(f)(2); 25 C.F.R. § 900.223(a)).

The Defendants argue that the cases Sage Hospital cites are all inapposite:

The CO decision letters at issue in Orbas & Assoc. v. United States, 26 Cl.Ct. 647, 648 (1992) (“... you should not expect a final decision prior to 30 June 1990”), and Appeal of Aerojet General Corp., 95-1 BCA P 27470, AJBSCA No. 48136, 1995 WL 44259 (1995) (“I am hereby informing you that I do not anticipate issuing a final, decision on this matter until the early March 1995 time-frame.”), clearly left in question when a final decision would be provided. See also Boeing Co. v. United States, 26 Cl.Ct. 257, 259 (1992) (“I will endeavor to respond to you on each of them by 13 Mar 92, or if unable to respond by that time, I will advise you by 13 Mar 92 when I will respond.”); Atkins Enterprises, Inc. v. United States, 27 Fed.Cl. 142, 143 (1992) (“...’ you should not expect a Final Decision until November 30, 1992. If for some reason this date cannot be met, you will be advised. Although we acknowledge receipt and have offered a prediction date on your claim ■... ”). The language in these “deemed denial” cases is not at all similar to the IHS CO’s language at issue here: “I will issue a final contracting officer’s decision by October 21, 2015.”

MSJ Surreply at 8 (alterations in MSJ Surreply). The Defendants contend that Sage Hospital’s suggestion that the Dayish Ltr. did not set forth a date certain, or that it created uncertainty or confusion, is not credible. See MSJ Surreply at 9.

Sage Hospital responded to the MSJ Surreply on April 9, 2015. See Opposition to Defendants’ Motion to File Surreply, filed April 9, 2015 (Doc. 61)(“Response to Motion to File Surreply”.). While much of the Response to Motion to File Surreply focuses on the MSJ Surreply’s alleged procedural impropriety, it also sets forth a brief response to the ■ Defendants’ arguments on the Tuba City decision. See Response to MSJ Surreply at 3-6. Sage Hospital contends that Tuba City contradicts the Defendants’ position. See Response to Motion to File Surreply at 3-6. According to Sage Hospital, Tuba City ruled that “the basis of Dayish’s claim to need a long period of time because of an asserted lack of documents was ‘particularly inapt[,]’ because IHS will necessarily deny the claim in any event.” Response to Motion to File Surreply at 3-6 (quoting Tuba City, 39 F.Supp.3d at 71-72). Sage Hospital says that, in any event, “it is hard to find anything relevant to this case in the extended proposed surreply,” and that the MSJ Surreply deals primarily with agreements that the IHS made with other tribes and tribal organizations. Response to Motion to File Surreply at 5.

Sage Hospital argues that the following remains true and unrebutted:

As former IHS Director Roubideaux announced in her “Dear Tribal Leader” letter, and as IHS’ form letters all say, all CSC claims submitted to IHS -will necessarily be denied by the contracting officers, because IHS has no money to pay them. The only CSC claim pending before Dayish for analysis is Sage’s. Dayish’s plea for a 14-month [period] based on an asserted need for documents never even requested of Sage is “particularly inapt” under Tuba City, and a far longer period than any ever found reasonable by the Board of Contract Appeals. Dayish’s supposed need for fourteen months is even more groundless in this case, wh