DENIED: April 18, 2007


                             CBCA 135


                 CALIFORNIA BUSINESS TELEPHONES,

                                        Appellant,

                                v.

                    DEPARTMENT OF AGRICULTURE,

                                        Respondent.

     Duncan A. Cameron, Owner of California Business Telephones, West Sacramento,
CA, appearing for Appellant.

     Elin M. Dugan, Office of the General Counsel, Department of Agriculture,
Washington, DC, counsel for Respondent.

Before Board Judges VERGILIO, STEEL, and KULLBERG.

VERGILIO, Board Judge.

     By letter dated September 20, 2006, California Business Telephones (CBT or
contractor) submitted a notice of appeal involving actions of the Department of Agriculture,
Food Safety and Inspection Service (Government).  The contractor seeks payment based on
a $14,432.88 invoice for equipment and services said to have been rendered in addition to
the items in the underlying contract.  The contracting officer issued a determination stating
that the amount would not be paid because the Government did not authorize the purchase
of the additional items; the determination requests that the contractor schedule a day to
uninstall and remove all equipment installed without Government authorization.  In this
matter at the Board, the contractor specifies that the dispute arises from oral agreements,
made between its owner and the Government point of contact (a program analyst; that is,
someone other than the contract specialist and the contracting officer), for equipment and
services that were not specified in the written contract.

     The Board has jurisdiction over this timely-filed appeal pursuant to the Contract
Disputes Act of 1978, 41 U.S.C.  601-613, as amended (CDA).  The parties have
submitted the appeal file (with supplements), complaint, and answer.  The parties have each
moved for summary judgment (treated by this Board as requests for summary relief),
asserting that undisputed facts demonstrate entitlement to relief; each opposes the contrary
motion.  The Board makes findings of fact based upon the existing record and the
requirement that all significant doubt over factual issues must be resolved in favor of the
party opposing each motion for summary relief.

     In seeking summary relief, the Government relies upon a contractual provision that
states that the contract can be modified only by written agreement of the parties.  Without a
written modification, the Government contends that it is entitled to summary relief because
there is no contractual basis for recovery.  Moreover, given the contractor's assertion that it
reached oral agreements with the Government's point of contact, the Government asserts that
the individual lacked authority to modify the contract as requested by the contractor. 
Accordingly, the Government seeks summary relief because there is neither a written
modification nor any agreement with a Government employee authorized to alter the
contract.

     The contractor seeks relief based upon what it describes as oral assurances from the
Government point of contact who portrayed herself as an authorized representative to act for
the Government.  Further, the contractor contends that because the Government still retains
the equipment installed in addition to that in the written contract and has benefitted from the
additional labor, the Government is obligated to reimburse the contractor for the additional
equipment and efforts.

     The undisputed facts demonstrate that the contractor seeks reimbursement for
equipment, materials, and efforts not included in the line items of a written contract between
the parties.  The Government did not modify the contract in writing.  Individuals with the
authority to modify the contract for the Government did not consent to the modifications
proposed by the contractor or authorize the work performed in excess of the written contract. 
Assuming the statements of the contractor to be true, with respect to the alleged discussions
and agreements between the contractor and the program analyst, the contractor relied upon
representations of a Government employee who lacked the authority to modify the contract
to accomplish the changes sought by the contractor.  Those assumed representations and
agreements do not bind the Government.  The contractor performed the extra-contractual
work at its own risk.  Without the consent of an authorized Government employee, no
enforceable contract modification arose.  The lack of authority also defeats the contractor's
theories of relief based upon estoppel and an implied-in-fact contract.  The Government is
not obligated to modify the contract or accept the additional items.

     The Board grants the Government's motion for summary relief, denies the contractor's
motion for summary relief, and denies this appeal.

                         Findings of Fact

The Contract

     1.   A contracting officer signed and had issued to CBT a standard form 1449,
solicitation/contract/order for commercial items, with an "effective date" and "date signed"
of February 2, 2006, and with the "award of contract" box marked.  The form specifies that
the contract is issued by and to be administered by USDA (Department of Agriculture), FSIS
(Food Safety and Inspection Service), ASD (Administrative Services Division), Acquisitions,
Beltsville, Maryland, with delivery to the Western Lab in Alameda, California.  The
"contractor/offeror" is CBT.  The document has a contract number, GS35F0369K, and an
order number, AG-3A94-D-06-0108; it specifies that the "contractor shall provide Vodavi
Infinite XTS Communications System in accordance with the attached statement of work and
California Business Telephone[']s quote #2050015."  The identified "quote" is not part of
the existing record (unless it is the "client invoice" dated January 25, 2006, Finding 4, below,
which has 6's in place of the 5's in the number); the existing record does not specify the
method of procurement, or whether or how quotations or offers were requested.  Exhibit C
at 50 (all exhibits are in the Appeal File).

     2.   The standard form document describes seventeen line items for delivery or
performance.  Among them is one for 12 speaker telephones, item IN3015-71, at $265 each,
and one for 43 speaker telephones, item IN3012-71, at $205 each.  The final item, installation
labor, at a lump sum price of $2795, details the work as installation, programming, testing,
training, programming changes, and a warranty.  The total award amount is $24,897.76.  The
document states that the "contract/purchase order incorporates by reference FAR 52.212-4. 
FAR 52.212-5 is attached."  The box that would indicate that the contractor is required to
sign the document is unchecked; there is no signature for the contractor.  The statement of
work identifies points of contact for the Government within the laboratory where installation
is to occur; the individual and alternate are identified by name and telephone number, not
title.  Neither name is that of the contracting officer.  Exhibit C at 50-64.

     3.   The FAR clause incorporated by reference, Contract Terms and Conditions--
Commercial Items (SEP 2005), 48 CFR 52.212-4 (2005), states in pertinent part:

          (c)  Changes.  Changes in the terms and conditions of this contract
     may be made only by written agreement of the parties.

          (d)  Disputes.  This contract is subject to the Contract Disputes Act
     of 1978, as amended (41 U.S.C. 601-613).  Failure of the parties to this
     contract to reach agreement on any request for equitable adjustment, claim,
     appeal or action arising under or relating to this contract shall be a dispute to
     be resolved in accordance with the clause at FAR 52.233-1, Disputes, which
     is incorporated herein by reference.  The Contractor shall proceed diligently
     with performance of this contract, pending final resolution of any dispute
     arising under the contract.

          (e)  Definitions.  The clause at FAR 52.202-1, Definitions, is
     incorporated by reference.

Exhibit C at 70.  The phrase "contracting officer" is defined in the incorporated provision to
mean "a person with the authority to enter into, administer, and/or terminate contracts and
make related determinations and findings.  The term includes certain authorized
representatives of the contracting officer acting within the limits of their authority as
delegated by the contracting officer."  48 CFR 2.101, 52.202-1 (2005).

     4.   On February 3, 2006, the contract specialist (with an address in Beltsville,
Maryland) sent an e-mail message to the contractor.  The stated subject is award.  The
message states that attached files are for the delivery order of the telephone system.  Exhibit
C at 65.  Also on that date, the Government point of contact (a program analyst) forwarded
a copy of the delivery order to the contractor.  The e-mail message states, in part:
     Finally, the contract has been awarded!  I'm assuming you already received a
     copy of this agreement but here it is for you just in case it hasn't reached your
     desk yet.  Will you please email a copy of the add-on quote so that I can start
     the process for the additional approval and funding.  Julian [the contract
     specialist] has assured me the add-on will be a breeze and should not be time
     consuming to complete.  I really don't know how that's going to work and
     whether or not we need to wait for the add-on to clear the approval chain
     before we start with the work on the initial contract.  As soon as I receive your
     quote, I'll make some calls to Washington and get things started.  From there
     we should be able to get an estimate of when actual installation will occur. 
     Thanks for your patience and working with us on this project.

Exhibit B at 43.  In correspondence in the record with the contractor, the point of contact
refers to herself by name only or with the title of program analyst; she does not refer to
herself as a contracting officer or as anything other than a program analyst.  Exhibit B at 7-8,
15, 32, 43-44.  In contrast, in correspondence in the record with the contractor, the contract
specialist consistently refers to himself as a contract specialist.  Exhibit B at 29-30, 32-33,
35-36, 39, 45, 49, 65, 66.

Additional Equipment and Labor

     5.   In an e-mail message dated Monday, February 6, 2006, the program analyst
provided the contract specialist with the contractor's "quote for the additional equipment and
labor costs we need to add to the existing Vodavi telephone system contract."  The
referenced "quote" is on the contractor's stationery, with the caption "Client Invoice," a date
of 1/25/2006, and an invoice number, 2060017.  Under "terms" is "due on recei[pt]" and
under "service date" is 2/1/2006.  There are three line items containing the following
information:

                 QTY                              DESCRIPTION              TOTAL
                   8                              speakerphones, IN3015-71, $260 each            $2080.00
                   2                              speakerphones, IN3012-71, $205 each              410.00
                   1                              basic labor: labor to install & program
                                                    additional phones, station ports &
                                                    voicemail boxes      3370.00
                                                  TOTAL                 $5860.00

The sheet specifies, "The above noted work was requested and accepted as satisfactorily
performed subject to the following: 1) Payment.  Payment is due immediately upon receipt
of this invoice[.]"  Exhibit B at 1-2.  The contractor also presented the Government with a
similar document, invoice 2060016, with the same date, terms, service date, and conditions,
but with seventeen line items totaling $24,897.76.  The seventeen items and prices are those
in the contract.  Exhibits B at 23-24, C at 50-57.  As of February 1, 2006, no product was
delivered or installed.

     6.   On Monday, February 6, 2006, the program analyst provided to the contract
specialist the quote for the additional items with the request that he inform her as soon as
possible as to how to proceed with the add-on, as she was seeking to have the modification
complete by February 14, the intended date of installation.  Exhibit B at 1.  That same day,
the contract specialist replied to the program analyst, stating that he did not see a problem
with modifying the contract, although he could not guarantee that the modification would be
finalized by February 14.  He sought information regarding the labor requirements, noting
that the proposed cost of labor in the modification is greater than the labor cost in the
contract.  Further, he writes, "Under no circumstances, other than a written or verbal
approval from [the contracting officer], should the contractor do any work towards the
second quote until we have the funding approved in IAS."  Exhibit B at 3.  Within the
agency, communications continued as approval was sought for the additional acquisition, and
the contract specialist continued to seek an explanation from the contractor that might justify
the proposed labor charge.  Exhibit B at 4-5.

     7.   On February 15, the contract specialist sent an e-mail message to the program
analyst informing her that a waiver is needed for the additional work, a process that could
take up to four weeks.  Therein, the contract specialist suggested completing the work for the
first installation as planned.  By early afternoon of the same day, the program analyst sent an
e-mail message to the contract specialist stating that the contractor had arrived and "they are
going to go ahead with the work and equipment on the contract you awarded.  I am also
working on the second requisition and request for the waiver approval."  Exhibit B at 6.

     8.   On a contractor dispatch ticket dated February 15, 2006, dispatch notes state
that the work relates to the installation of the telephone system.  It specifies for day one,
February 15, 2006, the equipment left in the possession of the Government.  In addition to
cabinets and miscellaneous materials, the equipment includes six telephones of item 3012-71,
twenty telephones of item 3015-71, and two specific modules and software.  The identified
equipment is not in excess of the seventeen line items in the contract.  Exhibits B at 9; C at
50-57.

     9.   Installation occurred over the following weeks.  In an e-mail message sent on
Monday, March 20, 2006, the contractor informed the program analyst:

     I finally spoke with [the contract specialist] on Friday.  I now have an
     acceptable and understandable course of action, in regards to submitting
     invoices and receiving payment for the same.

          . . . .

     . . . You and I have spoken at length on several occasions, regarding all of the
     additional work.  All of which requires additional charges b[e] submitted.  All
     of which should have been left undone, until pricing estimates were created by
     our office and sent to [the contract specialist] for approval.  This would have
     meant that . . . at least a third of your facility would have zero communications. 
     I am not comfortable, at all, installing 13,000 to 14,000 dollars worth of
     additional equipment and labor, without authorization, simply because I know
     I am doing what is necessary for your facility, and that I may never be paid for
     it.  Under these circumstances, I would appreciate a little more patience and
     cooperation.

Exhibit B at 15-16.  The Government did not sign a contractor dispatch ticket dated
March 21, 2006, on which the contractor sought to obtain authorization and acceptance of
all work pertaining to the original contract, as well as all additions totaling approximately
$15,000.  Exhibit B at 18.

     10.  The program analyst and the contractor's owner continued to communicate
regarding the contractor's attempts to be paid for work performed, both under the contract
and for additional work.  On March 29, 2006, the contractor sent an e-mail message,
including an invoice, to the program analyst.  The message states:

     The attached invoice includes everything.  The equipment pricing is normal
     retail.  These prices will help to reduce some of the losses we took from the
     original quote in 2004.  There is no need for another credit card purchase.  I
     suppose that we need to request approval for this to be done, etc.

Exhibit B at 25.  A "client invoice" (invoice 2060053) dated March 29, 2006, states "due on
recei[pt,]" with a service date of 3/29/2006.  With the following information, the invoice lists
fifteen line items, totaling $14,432.88:

                 QTY                                DESCRIPTION              TOTAL
                   1                                station board at $696           $ 696.00
                   8                                speakerphones, 3015-71, $419 each          3352.00
                  11                                speakerphones, 3012-71, $351 each          3861.00
                  11                                wall mount kits, $18.95 each      208.45
                   1                                adapter at $335.88      335.88
                 480                                voice cables, $.19 each            91.20
                  13                                terminal jacks, $5.95 each         77.35
                   1                                cross connect, hardware, etc.                15.00
                   4                                Bogen wall speakers, $89 each               356.00
                   1                                basic labor: for 19 phones--install &
                                                     program, type designation sheets, program
                                                     voicemail boxes; training add'l staff     1075.00
                   8                                basic labor: site review & assessment
                                                      (3 technicians 8 hours each), $95 each              760.00
                   1                                basic labor: install new cables to support
                                                      additional phones              1980.00
                   1                                basic labor: remove wall mounts previous
                                                      system; install new screws and mounts               360.00
                   1                                basic labor: paging system, test existing
                                                      amplifier, test every speaker in lab building,
                                                      replace four speakers           380.00
                   9                                travel labor: 3 technicians, 3 trips, 4 hours
                                                      each = 36 man hours traveling, $95 each             855.00

                                                    TOTAL               $14,432.88

Exhibit B at 26-28.

     11.  As indicated in an e-mail message sent on April 11, 2006, to the contract
specialist, the contractor lacks documentation to support the assertion that the Government
ordered the items on the invoice; the contractor indicated that it relied upon verbal
communications.  In the message, the contractor informed the contract specialist:

     I don't care how things look or seem.  I also understand how these matters are
     supposed to proceed, however, when someone  screws up' the scope of the
     work, as badly as it was on this project, it would be unconscionable to stop the
     installation half way through and wait for further approvals.  We did not make
     the [sic] any decisions to move forward with additional equipment and work
     without being told to do so.  If there is a problem with procedures, we will not
     be the party to be blamed for them.

Exhibit B at 30.

     12.  In an e-mail message of May 10, 2006, the program analyst informed the
contractor that the Government intends to return items not included in the contract.  Exhibit
B at 32.  The contractor responded by e-mail the following day, inquiring if an option other
than return exists, as the contractor is not accepting the return of equipment that was installed
and used.  Exhibit B at 34.

     13.   Before resolving the contractor's request for payment, the contract specialist
inquired specifically about written approval for the items.  When the contractor provided no
evidence of written approval, the contract specialist sought information regarding when items
were ordered and installed, and the work completed.  Exhibit B at 41-45.  For example, an
e-mail message sent on May 23, 2006, by the contract specialist informed the contractor:

     We [the contract specialist, contracting officer, and a senior contracts officer]
     need to know more information about the second invoice in order to proceed
     with payment.  We need to know the circumstances surrounding the quote,
     request, authorization to do the installation and an explanation of the various
     line items on the invoice.  Without this information, we will have to return the
     invoice to you until we have sufficient information to make payment.

Exhibit B at 36.  In an e-mail message of July 26, 2006, the contractor stated that "additional
equipment" was installed at the same time that the "original equipment" was installed, and
that the items were ordered verbally by the program analyst.  Exhibit B at 45-47.

     14.  In its statement of undisputed facts, the Government avers that the contracting
officer who signed the contract retired on July 31, 2006, and that the contract specialist, who
possessed a warrant as a contracting officer, succeeded her as the contracting officer on this
contract.  The contractor does not dispute these assertions.  The Board concludes that the
contract specialist was the contracting officer on this contract as of August 1, 2006.

     15.  In an e-mail message dated August 2, 2006, addressed to the contract specialist
the contractor stated:

     The additional equipment, material and labor, was verbally ordered by [the
     program analyst] on February the 15th, 2006.  I have a signed work order that
     shows acceptance of work on the first day, equipment left on the site, approval
     of equipment to be ordered and left on site for completion of system
     installation on the 21st of February.  All installation work of originally ordered
     and subsequently ordered equipment was completed on Friday February 24,
     2006.

     Any trips after this date were related to programming changes.  Programming
     changes are free for a certain period of time after the original installation.  We
     would be very happy to  re-start the clock' on these free programming
     changes, once the final invoice has been paid.

Exhibit B at 48.  The only work order dated February 15 in the record is that discussed in
Finding 9; all identified equipment falls within the scope of the seventeen line items of the
contract.  The reference in that work order to February 21, 2006, states: "Equipment Left in
USDA-FSIS possession: - balance of all equipment ordered."  Not only does the document
not identify specifically what that equipment may be, but also that date remained in the future
at the time the dispatch ticket was presented.  Exhibit B at 9.  The February 15 document
does not reflect Government authorization or acceptance of any items not included in the
seventeen line items of the written agreement.

     16.  By letter dated August 10, 2006, the contract specialist (i.e., the contracting
officer) responded in writing to the contractor's invoice of March 29, 2006.  The letter
specifies that the program office asserted that neither verbal nor written approval was given. 
Only a price quote had been requested.  In response to the request for a quote, the contractor
provided "client invoices" for proposed equipment and labor.  Further, the letter states:

     After review, it has been determined that the Government did not authorize the
     purchase of any additional equipment beyond the original contracted amount
     of $24,897.76.  Your invoice in the amount of $14,432.88 is being returned. 
     You are asked to please contact the undersigned contracting specialist to
     schedule a day and time to uninstall and remove all of the equipment that was
     not authorized to be installed at the Government facility.  All documentation
     of the manufacturer's warranty for the approved equipment must be provided
     to this office no later than 30 days from the date of this letter.

Exhibit B at 49.

     17.  By letter dated September 20, 2006, the contractor filed a timely appeal with
a predecessor to this Board.  The contractor states that the basis of the dispute:

     has resulted from oral agreements made for equipment and services that were
     beyond the original contracted agreement and were made between [the
     contractor's owner] and [the program analyst] who was designated as the point
     of contact and who portrayed herself to be an authorizing representative of
     USDA Food and Safety Inspection Service Department of Alameda,
     California.  It was during the installation process of the contracted work #
     GS35F0369K that the oral agreements outside of this written contract, were
     made between [the two individuals] for the additional equipment and services.

Exhibit A.  In the notice of appeal, the contractor states the belief that payment for the
services performed "was not rendered because [the program analyst] had not taken the proper
steps to secure authorization for the additional services and equipment already rendered." 
Exhibit A.

                            Discussion

     Each party has moved for summary relief based upon the existing record.  The
contractor claims entitlement to relief based upon alleged oral agreements with the program
analyst; in support, the contractor uses the terms estoppel and implied-in-fact contract.  The
Government contends that the contractor is not entitled to relief because there is no bilateral
written modification and because the contractor alleges that it entered into the requested
modification with an individual who lacked authority to so bind the Government.

Summary Relief

     With a motion for summary relief, the moving party bears the burden of establishing
the absence of any genuine issue of material fact to resolve its request; all significant doubt
over factual issues must be resolved in favor of the party opposing summary relief.  At the
summary relief stage, the Board may not make determinations about the credibility of
witnesses or the weight of the evidence.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986).  However, it is also true that "the party opposing summary judgment must show an
evidentiary conflict on the record; mere denials or conclusory statements are not sufficient." 
Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987)
(citations omitted).  To preclude the entry of summary relief, the non-movant must make a
showing sufficient to establish the existence of every element essential to the case, and on
which the non-movant has the burden of proof at trial.  Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986).  When a motion is made and supported as required in Federal Rule of
Civil Procedure 56(a), the adverse party may not rest upon the mere allegations or denial in
its pleadings, but must set forth specific facts showing there is a genuine issue for trial.  Fed.
R. Civ. P. 56(e); Celotex, 477 U.S. at 324; InterFreight Transport Systems, Inc. v.
Department of Agriculture, CBCA 129 (Mar. 14, 2007).

The Contract

     The contracting officer had issued and CBT received the document marked award of
contract.  Findings 1, 4.  The numbering on the document is not controlling in resolving the
matters in dispute.  It is not material if the contract came into existence with the signature of
the contracting officer or the performance by the contractor.  A contract arose between the
parties under the terms and conditions proffered by the Government within the document for
the specific line items at a firm, fixed price.

     In its submission regarding summary relief, the contractor at times disavows the
contract.  The statement that FAR 52.212-4 is "incorporated by reference" means that the
clause (its terms and conditions) is part of the contract, although the actual clause need not
be physically attached to the contract or purchase order.  The contract does not state that the
clause is attached.  Therefore, the contractor unavailingly asserts that the clause "was never
attached to the Contract as is stated on the Contract nor was Contractor given any knowledge
that this [clause] was a term and a condition of the contract[.]"  Contractor Opposition at 2-4. 
The document puts the contractor on express notice of the terms and conditions that
constitute the contract.

     Contrary to the implications suggested by its invoices and dispatch tickets, Findings
5, 9, 10, the contractor could not unilaterally create a contract with the Government or
modify the contract to add equipment, material, or labor and related charges.  The fixed-price
contract had specific line items and pricing.  This contractual vehicle specifies the terms and
conditions under which the contractor was to perform as well as the obligations of the
Government. The contract cannot be read as an invitation for the contractor to provide
equipment or labor in addition to the line items and simply thereby obligate the Government
to provide compensation at rates the contractor deems appropriate.

Authority to Bind the Government

     The principle is well established that the Government can only be bound by those with
authorization to bind it.  The Federal Circuit has quoted the Supreme Court, "[A]nyone
entering into an arrangement with the Government takes the risk of having accurately
ascertained that he who purports to act for the Government stays within the bounds of his
authority[,]" Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 384 (1947), and opined
that the Court's admonition:

     is firmly grounded in the public policy goal of protecting the public treasury
     from depletion by claims brought pursuant to unauthorized government
     contracts.  The United States government employs millions of civilian
     employees.  "Clearly, federal expenditures would be wholly uncontrollable if
     Government employees could, of their own volition, enter into contracts
     obliging the United States."

Flexfab, L.L.C. v. United States, 424 F.3d 1254, 1260 (Fed. Cir. 2005) (citations omitted).

     The contractor seeks relief based upon alleged oral agreements made between the
program analyst and the contractor.  The contractor states in its complaint that the program
analyst "was designated as the point of contact and acted as an authorizing representative of
USDA Food and Safety Inspection Service Department of Alameda, California during the
installation process of the awarded contract[.]"  Complaint at 2.  In the answer, the
Government admits that the individual was designated as the point of contact and is, and was
during the installation process, employed in Alameda, California.  The Government denies
the remaining allegations.  Answer at 1.  In seeking summary relief, regarding the invoice
for additional payment, the Government contends that the program analyst lacked the
authority to modify the contract, either verbally or in writing.  Government Motion at 7.  The
contractor has not responded to the assertion, or attempted to disavow its understanding, as
expressed in the notice of appeal, that the program analyst had not secured authorization for
the additional services and equipment, Finding 17.  The contractor does not present evidence
sufficient to create a question of fact that reasonably could lead one to conclude that the
program analyst had authority to enter into the contract modification proposed by the
contractor.

     The Board can assume that, to the contractor, the program analyst acted as an
authorized agent of the Government.  This appearance does not equate to the program analyst
being an authorized agent.  The contractor does not intimate that the program analyst was
authorized to expand the scope of the contract as requested by the contractor.  The
Government, not the contractor, is in the position to know and verify the authority (or lack
or limit thereof) that the program analyst possessed.  The Board has found, and the contractor
has pointed to, nothing in the record that would support a reasonable conclusion that the
program analyst was authorized to effectuate the contractor-proposed modification.  Nothing
at this stage of proceedings suggests that a delegation of authority had been given to the
program analyst.  The contract specifies that the office administering the contract is located
in Maryland, a location remote from the program analyst.  The program analyst and the
contract specialist corresponded regarding the limits of the authority of the program analyst. 
Even assuming that those limitations of authority were not expressly revealed to the
contractor, that lack of communication does not vest the program analyst with legal authority
she did not possess.  The Board concludes that the program analyst lacked the authority to
enter into the contract modification proposed by the contractor.

     What controls the resolution of this dispute is the fact that no Government employee
with authority to modify the contract as requested authorized the modification.  The
contractor installed equipment and expended labor without authorization to do so.  Neither
the contracting officer nor the contract specialist authorized work in addition to the written
contract.  Findings 13, 17.  As a result, the contractor-proposed modification cannot be read
into the contract.  The contract remains as written, unmodified.

Matters Raised by the Contractor

     Referencing the doctrines of promissory and equitable estoppel, as well as implied-in-
fact contracts, the contractor maintains that it is entitled to summary relief as a matter of law.

     Regarding estoppel, the contractor contends that the program analyst and the contract 
specialist:

     knew the truth of the Contract agreed to and should be precluded both at law
     and in equity from denying or asserting the contrary of any material fact which
     by their words, conduct and intention, induced CBT, who was excusably
     ignorant of the true facts and who had a right to rely upon the words and
     conduct to believe and act upon them as a consequence reasonably to be
     anticipated, changed its position in such a way that it would suffer injury if
     such denial or contrary assertion was allowed.  It would be unconscionable to
     allow FSIS to resile [sic].

Contractor Opposition at 5.

     This Board lacks authority to resolve disputes premised upon a theory of promissory
estoppel.  P.J. Dick, Inc. v. General Services Administration, CBCA 461 (Mar. 23, 2007). 
To prevail under a theory of equitable estoppel against the Government, the contractor must
demonstrate in addition to general elements of such estoppel, the actual authority of the
individual upon whose conduct it relied, and some form of "affirmative misconduct" by that
individual.  Rumsfeld v. United Technologies Corp., 315 F.3d 1361, 1377 (Fed. Cir. 2003);
Zacharin v. United States, 213 F.3d 1366, 1371 (Fed. Cir. 2000).

     The conduct of the program analyst is not pertinent to the inquiry because of her lack
of authority to modify the contract as the contractor requests.  The contractor has suggested
no affirmative misconduct by the contract specialist or contracting officer that could have
induced the contractor to install equipment and materials in addition to those in the written
contract.

     Moreover, one of the basic elements of estoppel requires the contractor to show that
it was not aware of the true facts.  The contractor was aware that authorization had not been
obtained for its extra-contractual actions as of March 20 and 21 (before work was complete). 
Finding 9.  With its submission of the invoice in dispute, the contractor informed the program
analyst, "I suppose that we need to request approval for this to be done, etc.[,]" thereby
conveying an understanding that approval had not been obtained at that time.  Finding 10. 
The contractor has not presented evidence sufficient to create a question of fact as to its
knowledge or awareness at the time of installation.  The contractor has not made a showing
sufficient to sustain it theory of estoppel at the summary judgment stage.

     In order to establish the existence of a binding implied-in-fact contract, a party "must
show: (1) mutuality of intent to contract; (2) consideration; (3) an unambiguous offer and
acceptance; and (4) actual authority on the part of the government's representative to bind
the government.  Schism v. United States, 316 F.3d 1259, 1278 (Fed. Cir. 2002) (en banc)." 
Flexfab, 424 F.3d at 1265.  Moreover:

     The elements of an implied-in-fact contract are the same as those of an oral
     express contract.  One of the elements Night Vision was required to show was
     "actual authority on the part of the government's representative to bind the
     government."

Night Vision Corp. v. United States, 469 F.3d 1369, 1375 (Fed. Cir. 2006) (citations omitted);
petition for cert. filed, 75 U.S.L.W. 3474 (U.S. Feb. 16, 2007) (No. 06-1156).  At this
summary relief stage, the Board has determined that the program analyst lacked actual
authority to bind the Government to the contractor-proposed modification.  Without this
critical element, an implied-in-fact contract did not arise.  Also, as evidenced by the
contractor's varying pricing for equipment and labor, and the express statements of the
contract specialist disapproving the pricing without support, an unambiguous offer and
acceptance never occurred.  Findings 2, 5-6, 10.

     The contractor raises specific grounds in opposing the Government's motion for
summary relief and in seeking summary relief.  The contractor's disputes with the
Government's characterization of the issues, facts, and law do not impede or alter the
resolution of the motions and this appeal.

                             Decision

     The Board denies the contractor's motion for summary relief and grants the
Government's motion for summary relief.  Accordingly, the Board DENIES the appeal.



                                   ______________________________
                                   JOSEPH A. VERGILIO
                                   Board Judge
We concur:


____________________________       ____________________________
CANDIDA S. STEEL                   H. CHUCK KULLBERG
Board Judge                             Board Judge