PAW & Associates, LLC
Docket: ASBCA 58534
Decision date: 2012-11-09

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of-- ) 
) 
PAW & Associates, LLC ) ASBCA No. 58534 
) 
Under Contract No. W9133L-08-D-0010 ) 
APPEARANCE FOR THE APPELLANT: Paul A. Weaver, Jr. 
President 
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
CPT Ahsan M. Nasar, JA 
Trial Attorney 
OPINION BY ADMINISTRATIVE 
JUDGE JAMES 
ON GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT 
OR IN THE ALTERNATIVE MOTION TO DISMISS 
The captioned appeal arises from the contracting officer's (CO) 9 November 2012 
denial of the 5 October 2012 claim of PAW & Associates, LLC (PAW) that respondent 
did not fairly and honestly evaluate PAW's April 20 12 task order proposal and award 
PAW a task order under the captioned contract, and that it improperly divulged in a 
separate solicitation proprietary information contained in PAW's proposal. On 12 July 
2013, respondent moved for summary judgment asserting that it had met its minimum 
purchase requirement under its indefinite delivery/indefinite quantity (IDIQ) contract with 
PAW and thus had no duty to award it another task order. In the alternative, respondent 
moved to dismiss for lack of jurisdiction the portions of PAW's appeal concerning 
respondent's alleged breaches of its implied duties to evaluate PAW's proposal fairly and 
honestly and not to divulge PAW's proprietary information. PAW opposed the motions 
on 14 August 2013, and respondent replied on 23 August 2013. 
STATEMENT OF FACTS (SOF) FOR THE PURPOSES OF THE MOTIONS 
1. Effective 22 April2008, U.S. Army National Guard Bureau (NGB) 
CO Christine Pettigrew (CO Pettigrew) entered into multiple award IDIQ Contract 
No. W9133L-08-D-0010 (contract) with PAW for subject matter expert/program analysis 
support services. The contract provided for issuance of task orders. (R4, tab 1 at 1-2, 16, 28) 
2. Contract Section B, Supplies or Services and Prices, stated that the period of 
performance (POP) consisted of a base year and four one-year option periods (R4, tab 1 
at 2). Section F, Deliveries or Performance, specified the following POPs: Base year, 
22 April 2008 to 21 April 2009; Option 1, 22 April 2009 to 21 April 201 0; Option 2, 

22 April2010 to 21 March 2011 (CLIN 2001) and 22 April2010 to 21 April2011 (CLINs 
2002, 2003); Option 3, 22 April2011 to 21 April2012; and Option 4, 22 April2012 to 
21 April2013 (id. at 20-21). 
3. Contract clause H-13, ORDERING (FAR 52.216-18) (OCT 1995), provided: 
(a) Any supplies and services to be furnished under this 
contract shall be ordered by issuance of task orders by the 
individuals or activities designated in the contract. Such 
orders may be issued from date of contract award through 
expiration of the contract. 
(b) All task orders are subject to the terms and conditions of 
this contract. In the event of conflict between a task order and 
this contract, the contract shall control. 
(R4, tab 1 at 28) The contract also contained the FAR Ordering clause separately and 
specified in paragraph (a): 
(Id. at 33) 
(a) Any supplies and services to be furnished under this 
contract shall be ordered by issuance of task orders by the 
individuals or activities designated in the contract. Such 
orders may be issued from Date of Award through 21 April 
2013. [Emphasis in original] 
4. Contract Section B provided that the minimum guaranteed funding amount was 
$250,000 and the minimum task order was $25,000. It listed the base year and option 
year 
CLINs, at a minimum $25,000 amount for each. (R4, tab 1 at 2, 10-11) From contract 
award through 
either February or Apri12012 (respondent's and appellant's statements, 
respectively), NGB issued 12-14 contract task orders to PAW with a combined value 
exceeding $2.9 million (compl. and answer~ 4). Appellant does not allege that 
respondent failed to meet its minimum order requirements under the contract. 
5. The contract contained the FAR 52.212-4, CONTRACT TERMS AND CONDITIONS­
COMMERCIAL ITEMS (FEB 2007) clause, which provides in part: 
(d) Disputes. This contract is subject to the Contract Disputes 
Act of 1978, as amended [CDA, now 41 U.S.C. §§ 7101-7109]. 
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 
2 

resolved in accordance with the clause at FAR 52.233-1, 
Disputes, which is incorporated herein by reference .... 
(R4, tab 1 at 30) The incorporated FAR 52.233-1 Disputes clause also provides that the 
contract is subject to the CDA and that, except as otherwise provided in the CDA, "all 
disputes arising under or relating to this contract shall be resolved under this clause." 
6. Effective 1 October 2008, bilateral 
contract Modification No. P00003 (Mod. 3), 
signed by CO Pettigrew and by Paul A. Weaver, Jr., PAW's president, provided that the 
government exercised its unilateral rights to extend the contract term for the stated period 
1 October 2008 through 30 September 2009 and that the delivery schedule for option one 
CLINs 1001-1003 had been changed "from" (presumably meant "to") POP 1 October 
2008 to 30 September 2009 (R4, tab 4 at 1-4) 
7. Effective 16 July 2009, unilateral contract Modification No. P00004 (Mod. 4), 
signed by CO LTC James A. Helm (CO Helm), exercised option year 2 for the stated 
period 1 October 2009 through 30 September 2010 (R4, tab 5 at 1-2, 6; see R4, tab 30 
at 3). 
8. Effective 19 August 2010, unilateral contract Modification No. P00006 
(Mod. 6), signed by CO Pettigrew, exercised option year 3 for the stated period 1 October 
2010 
through 30 September 2011 (R4, tab 7 at 1-3, 5). 
9. NGB CO Lisa Loverde's (CO Loverde) 17 April2012 email to Mr. Weaver 
requested a technical and price proposal for a "STEEP Task Order" pursuant to an 
attached performance work statement. She stated that she had a proposal from [DRAKE] 
but could not accept it because "our contract will be with PAW". (R4, tab 16 at 1) 
Appellant's claim states that it formed a subcontract relationship with DRAKE and 
movant refers to DRAKE as PAW's subcontractor (R4, tab 29 at 4; gov't mot. at 8 n.l). 
CO Helm's final decision, below, stated that "[t]he understanding at the time was that this 
contract vehicle was to be used to make a non-competitive award to PAW for the 
requirement" (R4, tab 30 at 3; see also R4, tab 19 at 2 (same understanding by DRAKE)). 
There is no dispute that the STEEP task order was contemplated to be issued under the 
subject IDIQ contract (see R4, tab 29 at 4 n.3). 
10. Effective 19 April2012, bilateral contract Modification No. P00008 (Mod. 8), 
signed by CO Pettigrew and Mr. Weaver for PAW on 20 and 19 April2012, respectively, 
provided that the government exercised its unilateral rights to extend the term of the 
contract for the stated period 22 April 20 12 through 21 April 20 13 for option period 4 
(R4, tab 17 at 1-2, 5). The modification was executed prior to the 21 April 2013 contract 
expiration date contemplated in the contract Schedule (SOF ~ 2) and in the contract's 
Ordering clause (SOF ~ 3) but over six months after the stated 30 September 2011 
expiration of the option 3 year POP (SOF ~ 8). 
3 

11. On 24 April 2012, PAW sent CO Loverde a "STEEP Follow-on" task order 
proposal pursuant to NGB's solicitation under the subject contract (R4, tab 18 at 1-2). 
The proposal cited unnumbered "Solicitation No. W9133-R-11-0XX" and unnumbered 
"Task Order No. W9133L-08-D-0010/XXX" (id. at 2, 4) and stated: 
(!d. at 4) 
Use and Disclosure of Data 
This proposal includes data that shall not be disclosed outside 
the Government and shall not be duplicated, used, or 
disclosed-in whole or in part-for any purpose other than to 
evaluate this proposal. However, if a contract is awarded to 
this Offeror as a result of--or in connection with-the 
submission of these data, the government shall have the right 
to duplicate, use, or disclose the data to the extent provided in 
the resulting contract.. .. The data subject to this restriction are 
contained in Sheets 1 to 30. 
12. On 10 May 2012, NGB advised DRAKE and PAW concerning the STEEP 
project that the procurement was 
on hold until the program office had more time to fully 
develop its requirements (R4, tab 23 at 1 ). 
13. On 5 September 2012, NGB notified Mr. Weaver that it was requesting 
proposals for "STEEP Solicitation No. W9133L-12-C-0147" and 
directed him to 
FedBizOpps to view the opportunity (R4, tab 26). On 7 September 2012, that solicitation 
was cancelled on the stated ground of"time constraints" (R4, tab 27 at 1). 
14. NGB asserted to PAW on 29 September 2012 that the contract was no longer 
viable, on the grounds that option 4 was not timely exercised; Mod. 8 was void; and an 
award for the "STEEP project" under the 
IDIQ contract was impossible (R4, tab 28). 
15. On 5 October 2012, PAW submitted a certified $718,498.46 CDA claim to 
NGB. PAW alleged that NGB notified PAW that evaluation ofPAW's 24 April2012 
proposal was complete, but the procurement was placed "on hold"; NGB "was prepared to 
issue an order to acquire PAW's approach" and on 29 September 2012, NGB notified 
PAW that the subject task order contract that CO Loverde had directed be used to conduct 
the acquisition 
"had expired more than six-months prior to the solicitation by the NGB for 
PAW's task order proposal." PAW asserted that the NGB COs failed to exercise their 
fiduciary obligations properly to plan an acceptable acquisition strategy and denied PAW 
"a fair and honest evaluation" of its proposal, breached "the implied contract" formed · 
when "PAW responded to the NGB solicitation with a fully compliant proposal," 
arbitrarily and capriciously failed to comply with requirements to make a prompt award of 
any resulting task order to PAW and purposefully ignored the qualification under which 
4 

PAW had submitted its proposal by releasing PAW's proprietary information "for 
purposes other than the evaluation ofPAW's approach." (R4, tab 29 at 1-2, 10) 1 While 
PAW claimed that respondent breached an implied-in-fact contract obligation to safeguard 
PAW's proprietary data in its 24 Apri12012 proposal for a task order, it referred to the 
underlying IDIQ contract as the source of the government's task order obligations (id. 
at 6). PAW alleged that an "overwhelming amount" of the technical requirements in the 
5 September 2012 STEEP solicitation reflected PAW's approach in its proposal in 
response to respondent's 17 April2012 request for a task order proposal under the subject 
contract (id. at 5). 
16. The 9 November 2012 final decision of CO Helm denied PAW's claim in its 
entirety and notified PAW of its appeal rights (R4, tab 30 at 1, 6-7). 
17. In a sworn affidavit/affirmation dated 5 August 2013, CO Pettigrew stated: 
4. That the procurement process associated with the [solicitation 
for the subject contract] resulted in my awarding three .. .ID/IQ 
contract[ s ], and each ... had a period-of-performance of April 22, 
2008 thru April21, 2009, with four ... year-long option periods 
(the "Multiple Awards"). 2 
9. That I never intentionally initiated, or received and acted 
upon a request to change the periods-of-performance (base and 
option periods) associated with the Multiple Awards. 
1 0. That the periods-of-performance (base and option periods) 
associated with the Multiple Awards are those delineated in 
the respective contracts at the time of their award. 
11. That any expression ofthe periods-of-performance 
associated with Contract No. W9133L-08-D-0010 that differs 
from that reflected in the contract at 
the time of its award is in 
error. 
(App. opp'n, attach. B (Pettigrew aff.); app. opp'n, exs. A-1 to -3) 
1 For purposes of its jurisdictional motion, despite DRAKE's involvement, the 
government assumes arguendo, but does not concede, that the alleged proprietary 
information at issue was that of appellant (mot. at 8 n.1). 
2 The referenced contracts were PAW's contract at issue and two contracts awarded to 
other contractors (app. opp'n, attach. Bat 2). 
5 

DECISION 
I. Respondent's Motion for Summary Judgment 
With respect to respondent's motion for summary judgment on PAW's claim that 
NGB had the duty to award it a task order under the captioned contract based upon its 
24 April20I2 proposal (SOF ~ I5), a tribunal shall grant summary judgment if the movant 
shows that there is no genuine issue of material fact and the movant is entitled to judgment 
as a matter oflaw. FED. R. CIV. P. 56( a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 
247 (1986). 
Citing CO Pettigrew's sworn 
statement (SOF ~ I7), appellant alleges that the stated 
option exercise periods under Mods. 3, 4 and 6 (SOF ~~ 6-8) erroneously differed from the 
contract-specified periods (SOF ~ 2) and were due to typographical errors (app. opp'n 
at 3-4). Movant replies that "these disputed facts" are immaterial because, even if 
appellant were correct, respondent met the contract's minimum purchase requirements and 
had no further obligation to place orders with appellant (gov't reply br. at 3). 
PAW has not alleged that respondent failed to order the minimum 
required quantity 
under the subject IDIQ contract (SOF ~ 4). Further, neither party avers that the 
requirements that were the subject of the task order in question were acquired. PAW does 
not cite any decision holding that, notwithstanding the satisfaction of an IDIQ contract's 
minimum purchase requirement, the purchaser has the duty to order additional quantities 
during an option performance period. In fact, irrespective of the validity of 
CO Pettigrew's assertion that the performance periods for option years I-3 were in error, 
and the resulting inference that the contract was still in effect when respondent exercised 
option 4, ordering more than the minimum quantity under an IDIQ contract is not 
required. See Tekkon Engineering Co., ASBCA No. 5683I, I0-2 BCA ~ 34,563 
at I70,442-43 (IDIQ contract specified no minimum quantity or work for, and government 
ordered no work in, option period I; Board granted summary judgment to government on 
contractor's claim for unrecovered option period I costs); Five Star Electronics, Inc., 
ASBCA No. 44984, 96-2 BCA ~ 28,42I at I41,956-57 (indefinite quantity supply contract 
specified only a base year minimum quantity; no minimum quantity was required for any 
option year; Board granted summary judgment to government). 
Accordingly, we hold that there are no genuinely disputed material facts that 
require denial of the motion. NGB did not breach any contract by failing to issue another 
task order to PAW. Respondent 
is entitled to judgment as a matter of law on this claim 
element and we grant its motion for partial summary judgment on this issue. 
6 

II. Respondent's Motions to Dismiss 
A. Fair Opportunity 
PAW contends that NGB breached an implied-in-fact contract duty to provide 
PAW a fair opportunity to be considered for issuance of a task order, in violation ofF AR 
§ 16.505(b)(1) (app. opp'n at 8-10). PAW argues that, under a multiple award, task order 
contract, the CO is required to afford all contractors a fair opportunity to submit an offer 
and have that offer fairly considered, without regard to the quantity of services previously 
ordered (app. opp'n at 5-6). 
FAR 16.505(b)(l)(i) provided on 22 April2008 when the contract was awarded: 
(b) Orders under multiple award contracts-
(1) Fair opportunity. 
(i) The [CO] must provide each awardee a fair 
opportunity to be considered for each order exceeding $3,000 
issued under ... multiple task-order contracts, except as 
provided for in paragraph (b )(2) of this section. 
FAR 16.505(b )(2) was to the same effect. 
The above-quoted FAR provisions implemented 10 U.S.C. § 2304c(b), which 
provided: 
(b) Multiple award contracts. When multiple task or 
delivery order contracts are awarded under section 2304a(d)(1)(B) 
or 2304b(e) ofthis title [10], all contractors awarded such contracts 
shall be provided a fair opportunity to be considered, pursuant to 
procedures set forth in the contracts, for each task or delivery order 
in excess of$2,500 that is to be issued under any ofthe contracts 
unless .... [There follow four exceptions.] 
Respondent argues that the duty to provide a fair opportunity to be considered for a 
task order under a multiple award contract is based on an implied-in-law contract, which 
the ASBCA has no CDA jurisdiction to entertain (gov't mot. at 6-8). It states that 
FAR 16.505(b)(1) requires fair consideration of"proposals among multiple awardees on a 
potential IDIIQ contract" (emphasis in original), which is an implied-in-law duty (gov't 
reply br. at 
6). 
We need not resolve the parties' foregoing "implied-in-fact" and "implied-in-law" 
contract arguments. We base our decision instead on the express terms of the contract's 
7 

FAR 52.212-4(d), commercial items Disputes clause, which provides that the contract is 
subject to the CDA and directs the parties to resolve "any ... claim, appeal or action arising 
under or relating to this contract" in accordance with the FAR 52.233-1 Disputes clause 
(SOF ,-r 5). The FAR 52.233-1 clause also provides that the contract is subject to the CDA 
and that all disputes arising or related to the contract are to be resolved under this clause. 
Both clauses encompass PAW's fair opportunity claim which relates to the underlying 
IDIQ contract. Thus, this Board has CDAjurisdiction to decide the breach of contract 
claim for failure to comply with the 10 U.S.C. § 2304c(b) and FAR 16.505(b)(l) 
requirements to give all contractors awarded multiple award contracts a fair opportunity to 
be considered for task order awards. Whether those statutory and regulatory requirements 
apply here pertains to the merits of PAW's claim, which are not before us to decide on the 
motion to dismiss. Accordingly, we deny respondent's motion to dismiss PAW's fair 
opportunity claim. 
B. Duty to Safeguard Proprietary Information 
Respondent argues that the CDA does not give the Board jurisdiction to adjudicate 
an appeal involving an implied contract to protect proprietary data submitted through a 
proposal, because the proposal is not a procurement of goods or services by the 
government covered by the CDA and PAW's "implied-in-fact contract" basis for NGB's 
duty to safeguard its proprietary data fails for lack of an offer, acceptance and 
consideration regarding the data. (Gov't mot. at 8; gov't reply br. at 4-7) 
PAW argues that FAR 15.207 (b) requires that the government protect its 
proprietary data. That regulation provides: 
Proposals shall be safeguarded from unauthorized 
disclosure 
throughout the source selection 
process .. .Information received in response to an RFI shall be 
safeguarded adequately from unauthorized disclosure. 
PAW further argues that 41 U.S.C. § 111, Procurement, provides that: 
In this subtitle, the term "procurement" includes all stages of 
the process of acquiring property or services, beginning with 
the process for determining a need for property or services and 
ending with contract completion and closeout. 
It asserts that the underlying IDIQ contract is the governing procurement contract which 
provides the basis for the Board's CDAjurisdiction to hear the aspect of its appeal 
regarding the government's alleged contract breach by its failure to safeguard PAW's 
proprietary information. (App. opp'n at 10-11) 
8 

As it does currently, at the time ofthe parties' IDIQ contract, FAR 3.I04-2 
implemented the Procurement Integrity Act, 4I U.S.C. § 423. FAR 3.I04-2(b)(4) noted 
that FAR Part I5 placed restrictions "on the release of information related to procurements 
and other contractor information that must be protected under I8 U.S.C. § I905 [the T.rade 
Secrets Act]." FAR I5.209(a) provided that, when contracting by negotiation, the CO shall 
insert the clause at 52.2I5-I in all competitive solicitations where the government intended 
to award a contract without discussions. That clause provided at subparagraph (e) that 
offerors that did not want data in their proposals to be disclosed to the public or used by the 
government except for evaluation purposes were to include a stated restrictive legend. 
PAW included a restrictive legend in its proposal that was substantially similar to 
the FAR legend (SOF ~ II), clearly stating its demand that its proprietary information be 
safeguarded. 
Consistent with our forgoing holding with respect to PAW's fair opportunity claim, 
we hold that, as provided in the contract's FAR 52.233-I Disputes clause (SOF ~ 5), the 
parties' dispute concerning POW's proprietary information submitted in response to 
NOB's request for a task order proposal relates to an alleged breach of the underlying 
IDIQ procurement contract and we have jurisdiction over the matter. We deny 
respondent's motion to dismiss this aspect of appellant's appeal. 
In summary, we grant respondent's motion for summary judgment on the issue of 
breach of contract by failure to issue a task order to PAW. We deny respondent's motions 
to dismiss for lack of subject matter jurisdiction over PAW's claim that NGB breached its 
duty to give PAW a fair opportunity to be considered for the task order in question and 
PAW's claim that the government improperly divulged proprietary information contained 
in PAW's task order proposal. Thus, we deny the appeal in part and retain jurisdiction 
over the balance of the appeal as set forth above. 
Dated: 22 November 20 I3 
(Signatures continued) 
9 
........ __.oard 
of Contract Appeals 

I concur 
~~~ 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
ministrative Judge 
Acting 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. 58534, Appeal of PAW & Associates, 
LLC, rendered in conformance with the Board's Charter. 
Dated: 
10 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals