Intermark Managed Services, Inc.
Docket: ASBCA 57654, ASBCA 57655
Decision date: 2012-06-22

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of-- ) 
) 
Internlark Managed Services, Inc. ) ASBCA Nos. 57654, 57655 
) 
Under Contract No. W911SE-08-D-0016 ) 
APPEARANCES FOR THE APPELLANT: Eric W. Leonard, Esq. 
Jon W. Burd, Esq. 
Tracye Winfrey Howard, Esq. 
William Novak, Esq. 
Wiley Rein LLP 
McLean, VA 
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
LTC Dana J. Chase, JA 
LTC Mark A. Ries, JA 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE DELMAN ON 
THE GOVERNMENT'S MOTIONS TO DISMISS 
The Department of Army (government) has filed two motions to dismiss these 
appeals for lack ofjurisdiction. In the first motion the government contends that 
Intermark Managed Services, Inc. (Intermark or· appellant) is a subcontractor with whom 
the government has no privity of contract. In the second motion, the government 
reiterates that appellant lacks standing to bring these appeals, and also contends that 
appellant failed to provide a signed claim certification on its claim for wage rate 
adjustment under ASBCA No. 57655. 
Appellant filed in opposition to the government's motions. At appellant's request, 
we held an evidentiary hearing on the government's motions and the parties filed briefs. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 
. 1. On or about 27 August 2007, the government issued a solicitation for a 
requirements-type contract to provide food services at dining facilities at Fort Rucker, 
Alabama. The solicitation provided in pertinent part as follows: 

7. 	NOTICE OF APPLICABILITY OF 
RANDOLPH-SHEPPARD ACT 
All offerors are hereby advised that this solicitation is subject 
to the exercise of certain Defense preference policies 
regarding the Randolph-Sheppard Act (20 ·U.S.C. 107) as 
related to offerors of military food services. Present DoD and 
Army policy interpreting the Randolph-Sheppard Act applies 
a selection preference to qualified nominees of State 
Licensing Agencies (SLA) for the Blind who represent clients 
seeking Defense contracts for so-called "military 
cafeteria-style food operations." 
This notice is not designed to discourage competition from any 
small business offerors interested in this requirement. Rather, it 
merely represents notice regarding a mandatory preference for 
Randolph-Sheppard Act State Licensing Agencies in the event 
that an offer from such source is received. 
The solicitation is 100% set-aside for small business concerns, 
but also'permits the State Licensing Agency (SLA), which is 
not considered a small business concern, to participate in the 
procurenlent. The exercise of certain preference policies 
regarding the Randolph-Sheppard Act (RSA) remains. The 
preference embodied in the RSA takes precedence over small 
business preferences. Therefore, if the SLA's proposal satisfies 
the technical requirements, in accordance with the 
Randolph-Sheppard Act, the Government will hold direct 
negotiations with the SLA. Application of the SLA preference 
may result in an award to other than the highest rated and/or 
lowest priced proposal. The SLA will be required to provide a 
subcontracting plan to afford small business an opportunity to 
perform aspects of the requirement. 
The Government intends to award a contract without 
conducting discussions. The Government, however, reserves 
the right to conduct discussions if deemed in its best interest. 
Discussions, if necessary with SLA will be conducted in 
accordance with the Randolph Sheppard Act and/or FAR 
52.212-1. Communication conducted to resolve minor or 
clerical errors does not constitute discussions. 
(R4, tab 1 at 4) 
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2. For purposes of this solicitation, the State Licensing Agency for the Blind 
(SLA) under the Randolph-Sheppard Act was the "Alabama Department of 
Rehabilitation Services - Business Enterprise Program" (ADRS). The licensed blind 
vendor selected by ADRS was James E. Waldie, d/b/a J & K Waldie, LLC (Waldie). In 
November 2007, Waldie entered into an agreement with Intermark, forming the joint 
venture known as "Southern Alabama Food Services" (SAPS)}, whose purpose was to 
provide cafeteria and related food services at Fort Rucker. (Joint ex. 3) 
3. Paragraph 17.2 of the joint venture agreement outlined Intermark's "Areas of 
Responsibility," including the following: 
a. 	Perform overall management and operational 
decision-making for the Joint Venture. 
b. Accomplish all official written and verbal communications 
on behalf of the Joint Venture, to include all financial 
. documents. 
g. 	Perform operational management, including, but not 
limited to, compliance with the technical requirements, 
discharge of administrative duties, legal and regulatory 
requirements and interpretations. 
(Joint ex. 3 at 4) 
4. AbRS, as the SLA, submitted a proposal on this solicitation on or abou~ 
26 September 2007. It appears that this proposal was prepared by Intermark in accordance 
with a Management Services Agreement with ADRS. (Joint exs. 1,2) The government 
awarded this contract to ADRS on 28 February 2008 for a base year starting on or about 
1 April 2008 and four, one-year option periods. The contract incorporated by reference 
FAR 52.212-4, CONTRACT TERMS AND CONDITIONS-COMMERCIAL ITEMS (FEB 2007), 
which incorporated by reference the Disputes clause, FAR 52.233-1, in subsection (d). 
(R4, tab 1 at 1, 3, 35) 
5. On 19 March 2008, AD~S submitted a letter to the government from 
Steve Shivers, Commissioner, noting that ADRS had been awarded the contract jn its 
} While the subject agreement identifies the joint venture as "Southern Alabama Food 
Services," almost all of the documents of record refer to the joint venture as 
"Southern Alabama Food Service," and we shall use the latter name for purpose of 
these appeals. 
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capacity as SLA under the Randolph-Sheppard Act, but that "[t]his contract will be 
performed on behalf of ADRS-BEP by Southern Alabama Food Service." The letter 
further stated: 
Accordingly, ADRS-BEP hereby delegates to Southern 
Alabama Food S.ervice all the rights, authority, and 
responsibility ofADRS-BEP with respect to the referenced 
contract, including but not limited to: 
I. Execution of delivery orders, contract 
modifications, and any other document required or necessary 
for contract administration or performance; 
5. Performance of any requirement of the. referenced 
contract; 
.6. Appeal in the name ofADRS-BEP from decisions of 
the Contracting Officer under the Disputes clause ofsaid 
contract; 
7.. The taking ofany action with respect to the 
contract which could have been taken directly by ADRS-BEP. 
(Joint ex. 4) (Emphasis added) 
6. Thereafter, the government issued Modification No. POOOOI (POOOOI), 
effective 1 May 2008, which inlplemented the ADRS letter above. The government and 
ADRS signed this modification. Block 14 ofPOOOO1 stated as follows: 
Reason: To establish a Tripartite Agreement to recognize the 
assignment of all rights, authority and responsibility for this 
contract as requested by Alabama Department .of 
Rehabilitation Services - Business Enterprise Program 
(ADRS-BEP) letter dated March 19, 2008 [SOF ~ 5] signed 
by Steve Shivers, Commissioner. 
(Joint ex. 5) 
7. Page 2 ofPOOOOl contained a pa~agraph entitled "TRIPARTITE 
AGREEMENT" dated 28 April 2008 that was executed by the government and SAPS. 
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The Tripartite Agreement, inter alia, identified SAFS as acontracting party with the 
government under this contract, stating in pertinent part as follows: 
Full Food Service contract W911SE-08-D-0016 is between 
the Alabama Department ofRehabilitation Services, Business 
Enterprise Program (ADRS-BEP), a small business Joint 
Venture, Southern Alabama Food Service, comprised of 
Intermark, Inc. and James Waldie, an individual, and the 
United States Army. Southern Alabama Food Services [ sic] will 
perform the contract on behalf of ADRS-BEP. The ADRS-BEP 
has delegated to [SAFS] all rights, authority, and responsibility 
of the ADRS. This includes execution of contract modifications 
or. other documents required· or necessaTY. for contract 
administration or performance, ... performance of any 
requirement of the referenced contract, appeal in the name ofthe 
ADRS from decisions of the Contracting Officer uJ?der the 
Disputes clause of the contract; and the taking ofany action 
with respect to the contract that which [sic] could have been 
taken directly by the ADRS-BEP. The offer [sic ]/subcontractor 
agrees and acknowledges that it will, for and on behalf of the 
Small Business Administration (SBA), fulfill and perform all of 
the requirements of the contract. The offeror/subcontractor 
agrees that it will not subcontract the performance of any of the 
requirements of this subcontract to any lower tier subcontractor 
without the prior written approvals of the SBA and the 
cognizant Contracting Officer .... 
(Joint ex. 5 at 2 of3) (Emphasis added) The Tripartite Agreement was signed on behalf 
of SAFS by both joint venture members, Waldie and Intermark, and also by the 
contracting officer (CO) (id. at 3 of3). 
8. Two days later, the Army issued unilateral Modification No. P00002 (P00002). 
Block 14 ofP00002 provided as follows: 
Reason: In accordance with the Tripartite Agreement 
executed in modification POOOO 1 this modification reassigns 
all rights, responsibilitys [sic] and authority under this 
contract from the Alabama Department ofRehabilitation 
Services, Cage code ITTP8 to Southern Alabama Food 
Service, Cage code 50YU7. 
(Joint ex. 6) (Emphasis added) Block 8 ofP00002 identified the name of the 
"CONTRACTOR" as "Southern Alabama Food Service" (id.). 
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9. On 17 December 2010 and 8 February 2011 Intermark submitted claims to the 
CO, stating therein that these claims were submitted on behalf of SAFS (R4, tab 42 at 1, 
tab 53 at 1). The earlier claim sought a monetary adjustment in the amount of 
$433,194.73, for the government's failure to incorporate the latest Collective Bargaining 
Agreement Addendum, effective 1 October 2007, into the solicitation. The CO issued a 
decision on 21 April 2011 granting this claim in part (R4; tab 58). The later claimsought 
$1,315,022.94 for negligently prepared estimates for weekend meal services; the CO 
denied this claim on 12 Apri12011 (R4, tab 56). 
10. On 16 June 2011, Intermark timely filed a notice of appeal (NO A) from both 
CO decisions. Insofar as pertinent, the NOA provided as follows: 
Pursuant to Board Rules 1 and 2, Intermark Managed 
Services, Inc., on behalf ofSouthern Alabama Food Service, 
appeals two final decisions of contracting officer .... 
[F ootnote omitted] ! 
(Bd. COIT. file) (Emphasis added) The Board issued its notice of docketing of the appeals 
on 16 June 2011. The "negligent estimate" appeal was assigned ASBCA No. 57654. 
The "wage rate adjustment" appeal was assigned ASBCA No. 57655. The Board 
captioned each appeal in the name of "Intermark Managed Services, Inc." (Bd. COIT. 
file). 
Certification ofClaim dated 17 December 2010 
11. With respect to appellant's claim for wage rate adjustment dated 17 December 
2010, appellant's counsel provided a declaration to the Board under penalty of perjury 
that the claim package contained a signed certification page and that the s.igned 
certification page was included in the claim package for delivery to the CO. Counsel 
declared: "I carefully reviewed each page. of the Certified Claim package to be 
submitted, including the signed certification page and each exhibit, and confirmed that 
the package was complete (Le. included the Certified Claim, signed certification from 
Ms. O'Connor and exhibits to the Certified Claim)." According to counsel, the certified 
claim was then handed off to a legal assistant under his supervision who made copies and 
who dispatched the certified claim for delivery to the CO via UPS. (Joint ex. 22, ~~ 4, 5, 
6) The claim package contained several hundred pages, including exhibits. The signed, 
certified claim is of record Goint ex. 14). 
12. When the CO received this claim, she did not review the claim to determine 
whether it contained a signed certification (tr. 10). She also did not check for a signed 
claim certification when she prepared the CO's final decision (tr. 13)~ nor did she check 
for a signed claim certification when she assembled the Rule 4 file (tr. 16). When 
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preparing the Rule 4 file, the CO opened the claim binder to make a copy of the claim 
and copied one section at a time. She would take out one section, copy it in its entirety, 
and then put it back in the claim binder. (Tr. 15-6, 48-9) In following this procedure, she 
failed to include Exhibit 4 from the claim in the Rule 4 file (tr. 38). A signed claim 
certification was also not included in the Rule 4 file. 
13. According to the CO, she first noticed the absence of a signed claim 
certification when she was preparing documents for a DCAA audit, roughly eight months 
after she received the claim (tr. 16, 17, 44). She then mentioned this matter to counsel, 
who subsequently filed the subject motion. 
14. The record reflects that during the claim review period, the CO repeatedly 
referred to appellant's claim as a "certified claim." By letter to appellant dated 
2 February 2011, the CO stated she was extending the period to issue a CO decision on 
appellant's "Certified Claim submitted under the Contract Disputes Act" Goint ex. 15 at 
2). By email dated 20 April 2011, the CO advised appellant that the "certifiedclaim ...is 
in legal review" Goint ex. 16). As far as the r.ecord shows, the government attorney who 
performed this legal review did not raise any· question with respect to the lack of a signed 
claim certification. 
15. The contract specialist's cover letter enclosing the CO's decision to appellant 
on 21 April 2011 also referenced appellant's "Certified Claim" Goint ex. 17). The CO's 
decision, dated 21 Apri12011, referred to appellant's claim certification twice in the first 
sentence of the decision: 
On December 17, 2010, Southern Alabama Food 
Service, Intermark, Inc. submitted a certified Claim for 
$433,194.733 under the Contract Disputes Act certifying its 
entitled to a unit price adjustment. ... 
(Jd.) (Emphasis added) 
16. The CO also prepared an internal Menl0randum For Record (MFR) dated 
28 April 2011, after issuance of the CO decision. The MFR provided, in pertinent part, 
as follows: 
MEMORANDUM FOR RECORD 
SUBJECT: Full Food Services Certified Claim Final 
. Decision 
On December 17,2010, Southern Alabama Food Service, 
Intermark, Inc. submitted a certified Claim for $433,194.73 
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under the Contract Disputes Act certifying its entitled to a 
unit price adjustment on all Base Year and Option Year 
CLINs in accordance with FAR Clause 52.243-7 .... 
(Joint ex. 19 at 1) (E1)1phasis added) 
17. According to the CO, she referred to appellant's claim as a "Certified Claim" 
in all the above instances only because appellant's claim so indicated on the claim binder 
and on the first page of the claim (tr. 13). 
DECISION 
The government asserts two legal bases to support its motions to dismiss for lack 
ofjurisdiction: (I) appellant lacked "standing" to bring the appeals and therefore both 
appeals must be dismissed; and (2) alternatively, appellant failed to submit to the CO a 
signed certification of the wage rate claim, and therefore ASBCA No. 57655 must be 
dismissed. We address the government's contentions below. 
1. Whether Appellant Has Standing to Appeal (ASBCA Nos. 57654 and 57655) 
The government contends that the joint venture's authority to file these appeals 
was limited by the language of the 19 March 2008 ADRS letter as implemented in the 
Tripartite Agreement of 28 April 2008 under POOOO 1, which authorized the joint venture 
to file appeals "in the name of the ADRS" (SOF ~~ 5, 7). According to the government, 
appellant failed to appeal "in the name of the ADRS" and thus we are without jurisdiction 
over the appeal~. 
We disagree with the government's narrow interpretation of these key documents. 
Based upon our reading of the ADRS delegation letter of 19 March 2008, and contract 
modifications POOOO 1 and P00002 it is clear that ADRS assigned all of its rights, 
authority and responsibility under the contract to the j oint venture, SAFS,· including "the 
taking ofany action with respect to the contract that which [sic] could have been taken 
directly by the ADRS-BEP" (SOF ~ 7). Plainly, this broad language constituted a full and 
complete delegation of all of ADRS' contract rights to the joint venture, including the 
filing of appeals under the CDA; The language relied upon by the government did not 
limit the authority of the joint venture to file appeals. Rather, the aforementioned 
documents, when read as a whoie, authorized the joint venture, SAFS, to file appeals as 
fully as ADRS could have filed appeals as the original contractor. Such appeals were 
filed here. 
Indeed, the CO expressly made SAFS a party to the contract under POOOO 1 and 
P00002 (SOF ~~ 7, 8). As such, it became a "contractor" in privity with the government 
- with all the appeal rights of a contractor - under the Contract Disputes Act (CDA), 
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41 U.S.C. §§ 7101-7109. The Act defines "contractor" as "a party to a Federal 
Government contract other than the Federal Government." 41 U.S.C. § 7101(7). Under 
the contract as modified, SAPS was such a contractor. That SAFS is also alluded to as a 
"subcontractor" in the Tripartite Agreement does not change this fact. 
Intermark, as co-joint venturer, appealed upon behalf of SAPS. We believe that 
the joint venture agreement provides Intermark with sufficient authority to do so (SOF 
~ 3). The government contends, however, that Intermark appealed in its "own right" or 
in its "own name." The government is not correct. Clearly, the NOA states that the 
appeals were filed by "Intermark Managed Services, Inc.,. on behalf ofSouthern Alabama 
Food Service" (the j oint venture) (SO F ~ 10). There is no requirement that each joint 
venturer sign the NOA. 
Intermark's failure to reference the name of the joint venture in the caption of the 
NOA was not an omission ofjurisdictional significance, nor was the Board's failure to 
docket the appeals in the name of the joint venture. The latter action was merely 
administrative in nature and may be corrected. 2 
For reasons stated, we conclude that the joint venture, SAPS, was and is a 
"contractor" for purposes of the CDA, and that Intermark lawfully appealed these CO 
decisions on behalf of SAPS under the CDA. The government's motion to dismiss these 
appeals due to appellant's purported lack of standing is denied. 
II. Whether Appellant Provided a Signed Certified Claim (ASBCA No. 57655) 
A contractor's claim exceeding $100,000 must be certified to the CO, 41 U.S.C. 
§ 71 03(b). This is a prerequisite to our jurisdiction. Weststar Engineering, Inc., ASBCA 
No. 52484,02-1 BCA ~ 31,759 at 156,851. A contractor's failure to sign a certification 
renders the certification ineffective. Sygnetics, Inc., ASBCA No. 56806, 10-2 BCA 
~ 34,576 (collecting cases). 
A "certified claim" is one that is certified and· signed. The record shows that the 
government's contemporaneous writings repeatedly refer to appellant's claim as a 
"certified claim" (SOF ~~ 14... 16). We understand this to mean that the claim included a 
signed claim certification. We do not find persuasive the CO's trial explanation 
otherwise. See Fareast Service Co., ASBCA No. 50570 et ai., 97-2 BCA ~ 29,279 at 
145,682: "The 'actions and conduct before the inception ofa controversy is of much 
greater weight than what [the parties] said or did after a dispute arose.' Fincke v. 
United States, 675 F .2d 289, 295 (Ct. Cl. 1982)." 
2 The ASBCA Recorder is hereby·directed to change the caption of these app~als to: 
Southern Alabama Food Service (Joint Venture). 
9 

Having duly considered counsel's declaration to the Board (SOF ~ 11) and all the 
evidence of record, we conclude that appellant's claim of 17 December 2010 was 
submitted by appellant to the government as a .signed, certified claim as required by the 
CDA. We need not explore the circumstances surrounding the loss or disappearance of 
the signed certification. 
CONCLUSION 
For reasons stated, both of the government's motions to dismiss these appeals for 
. lack ofjurisdiction are denied. 
Dated: 22 June 2012 
ministrative Judge 
Armed Services Board 
of Contract Appeals 
I concur I concur 
EUNICE W. THOMAS 
Administrative Judge Administrative Judge 
Chairman Vice Chairman 
Armed Services Board Armed Services Board 
of Contract Appeals 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 Nos. 57654, 57655, Appeals of 
Intermark Managed Services, Inc., rendered in conformance with the Board's Charter. 
Dated: 
CATHERINEA. STANTON 
Recorder, Armed Services 
Board of Contract Appeals 
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