Aspen Consulting, LLC
Docket: ASBCA 61122
Decision date: 2020-10-14

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeal of -- ) 
 ) 
Aspen Consulting, LLC ) ASBCA No.  61122 
 ) 
Under Contract No. W9127S-13-C-6003 ) 
 
APPEARANCES FOR THE APPELLANT: Gerald H. Werfel, Esq. 
 Ian A. Cronogue, Esq. 
   Baker, Cronogue, Tolle & Werfel, LLP 
   McLean, VA 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
  Engineer Chief Trial Attorney 
Allen S. Black, Esq. 
 Siobhan Fabio, Esq. 
   Engineer Trial Attorneys 
   U.S. Army Engineer District, Little Rock 
 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL 
 
Appellant, Aspen Consulting, LLC, seeks $264,470.70 that it says represents 
two contract payments that the government misdirected to a German bank account 
(app. br. at 2, 4-5). 
 
FINDINGS OF FACT1 
 
On September 25, 2013, the parties contracted for Aspen “to outfit the U.S. 
Army Health and Dental Clinics in Rose Barracks, Vilseck, Germany” (R4, tab C-1 
at 19, 30).  The contract includes Federal Acquisition Regulation (FAR) 52.232-33, 
PAYMENT BY ELECTRONIC FUNDS TRANSFER—CENTRAL CONTRACTOR  
REGISTRATION (OCT 2003) (R4, tab C-2 at 191), which provides, at paragraph b: 
 
Contractor’s EFT information.  The Government shall 
make payment to the Contractor using the EFT 
[electronic funds transfer] information contained in the 
Central Contractor Registration (CCR) database. In the 
event that the EFT information changes, the Contractor 
                                              
1 Some of these recitations are, or are also, admissions.  See generally Raytheon Co., 
ASBCA No. 57743 et al., 16-1 BCA ¶ 36,335 at 177,147 (explaining judicial 
and evidentiary admissions). 

2 
shall be responsible for providing the updated 
information to the CCR database. 
 
(R4, tab C-2 at 191) (bracketed material added). 
 
In 2015, the government paid two Aspen invoices, Nos. 201501-1 and 201501-2, 
to an account at Commerzbank, a German bank (app. br. at 2; gov’t br. at 6 ¶ 8).  The 
government says that it did so at the request of a Mr. Benjamin French, and admits that 
at the time of that request, Aspen’s “EFT information listed the Bank of America as 
being authorized to receive payments” under the contract (answer at 9; see also R4, 
tab J-6 at 88).  Mr. French confirms that he made that request, and Aspen concurs (app. 
br. at 6 ¶ 8; R4, tab J-4 at 106-10).  Mr. French did not discuss his request that the 
government direct the payments to Commerzbank with either Aspen’s president, 
Gaye Toppert, or Aspen’s chief financial officer, Kent Toppert, before making that 
request (R4, tab J-6, at 64-66). 
 
Both of the invoices are signed by Mr. French, and both list a Commerzbank 
account as the recipient (R4, tab C-3 at 224, 226).  That account – account 
no 202863700 – was assigned to Aspen, and Aspen employees were paid from that 
account (R4, tab C-29A; tab J-6 at 56).  At the time of the two 2015 payments at issue, 
Mr. French was Aspen’s vice-president, its chief operating officer, its Vilseck project 
manager responsible for day-to-day management of the contract, and its 
Aspen-designated point of contact for the government on the Vilseck project; 
Mr. French had signed at least one Vilseck contract modification on behalf of Aspen, 
and although he left Aspen in late 2015, in 2008, he had opened the Commerzbank 
account in the name of Aspen (albeit with direct access granted initially only to him 
until he added his wife, who was not an Aspen employee), with the knowledge of 
Aspen and Mr. Toppert, who wired the funds to Commerzbank to open the account 
(see app. br. at 4; R4, tabs C-3, C-29A, C-32, C-33, C-34, I-3 at 9, J-4 at 40-46, 50-55, 
60, 70, 100, 111-18, 121-24, 147, ex. R7; tab J-6 at 24, 45-48, 53, 77, 82, 87, 113-16). 
 
At least at one point, Mr. French had authority to sign contracts and contract 
modifications on behalf of Aspen:   
 
Q Did [Mr. French] have authority to enter 
into contracts? 
 
[Mr. Toppert] Not on his own. 
 
Q Did [Mr. French] have the authority to 
investigate and propose change orders 
and execute modifications? 
 

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[Mr. Toppert] Not without review by the company’s 
president.  
 
(R4, tab J-6 at 106)  Indeed, on at least several occasions regarding other contracts, 
Mr. French signed contractual documents on behalf of Aspen (R4, tabs C-42, C-44 to -47).  
And at least prior to the payments in question, Aspen never communicated to third parties 
that Mr. French’s contractual authority was in any way limited (see R4, tab J-6 at 88). 
 
DECISION 
 
Aspen says that Mr. French acted without authority in requesting that the 
government direct contract payments to Commerzbank (rather than to Bank of 
America), and that the government breached the contract by honoring that request.  
We disagree.  FAR 52.232-33(b), provides that “[t]he Government shall make 
payment to the Contractor using the EFT information contained in the Central 
Contractor Registration (CCR) database.  In the event that the EFT information 
changes, the Contractor shall be responsible for providing the updated information to 
the CCR database.”  Thus, the provision contemplates that a contractor could change 
its EFT information (for example, by requesting that payments be made to a “new” 
bank account) before updating that information in CCR.  Here, the EFT information 
did change:  Mr. French changed the EFT information to Commerzbank, and we 
conclude that he had at least apparent authority to do so.  Apparent authority is 
determined by looking at the conduct of the principal to assess whether the principal 
created a reasonable belief that the actor was authorized by the principal in the manner 
relied on.  Seven Seas Shipchandlers, ASBCA No. 57875 et al., 13 BCA ¶ 35,193 
at 172,678 (internal emphasis omitted).  Aspen not only designated Mr. French (its 
vice-president, chief operating officer, and day-to-day manager of the Vilseck project) 
to the government as its point of contact on the Vilseck project (without 
communicating to the government any limitations upon his authority), Mr. French 
signed at least one modification to the contract, all creating a reasonable belief that 
Aspen had authorized Mr. French to change Aspen’s EFT information by directing 
that payments be made to Commerzbank.  To the extent that the updated information 
(that is, the substitution of Commerzbank for Bank of America) was not provided to 
the CCR database by the time the payments were made, causing a discrepancy 
between CCF and Mr. French’s request, that is the fault of Aspen. 
 
Aspen cites S.A.S. Bianchi Ugo Fu Gabbriello, ASBCA No. 53800, 05-2 BCA 
¶ 33,089, but that opinion does not help its case.  First, Bianchi did not involve 
FAR 52.232-33.  Id. at 164,025 n.6.  Second, in Bianchi, no corporate representative 
requested that the government direct the disputed payments to the bank at issue there.  
Id. at 164,018-19.  Here, Mr. French, with at least apparent authority to do so, 
requested that the government direct the disputed payments to Commerzbank. 
 

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CONCLUSION 
 
The appeal is denied. 
 
Dated:  October 14, 2020 
 
TIMOTHY P. MCILMAIL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
I concur 
 
 
 
 I concur 
 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 OWEN C. WILSON 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
 
 
I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 61122, Appeal of Aspen 
Consulting, LLC, rendered in conformance with the Board’s Charter. 
 
Dated:  October 14, 2020 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals