Edward Hayes, as Liquidator of Base Operation Services GmbH
Docket: ASBCA 59829, ASBCA 59907
Decision date: 2017-02-27

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of --
Edward Hayes, as Liquidator of Base 
Operation Services GmbH 
) 
) 
) 
) 
) 
Under Contract Nos. DABNOl-03-C-0025 ) 
W912PE-04-D-0001 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 59829, 59907 
William F. Savarino, Esq. 
Andrew K. Wible, Esq. 
Cohen Mohr LLP 
Washington, DC 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
CPT Matthew A. Freeman, JA 
MAJ Michael G. Pond, JA 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE WOODROW 
ON APPELLANT'S MOTION FOR RECONSIDERATION 
Appellant raises two arguments in its motion for reconsideration of our earlier 
decision, Edward Hayes, as Liquidator of Base Operation Services GmbH, ASBCA 
Nos. 59829, 59907, 16-1BCA~36,412. First, appellant contends that the Board 
applied the incorrect legal standard when it treated appellant's motion to dismiss as a 
motion for summary judgment (app. mot. at 2-3). Second, appellant argues that the 
Board erred when it declined to rule on whether the contractor, Base Operation 
Services GmbH (BOS), lacked the capacity to sue or be sued at the time the 
contracting officer issued her final decision (id. at 3-10). 
In deciding a motion for reconsideration, the standards the Board applies are 
whether the motion is based upon newly discovered evidence, mistakes in our findings of 
fact, or errors oflaw. Precision Standard, Inc., ASBCA No. 58135, 16-1BCA~36,504 
at 177 ,859. Reconsideration is not intended to provide a party with the opportunity to 
reargue an issue that already has been raised and decided. Computer Sciences 
Corporation, ASBCA Nos. 56168, 56169, 09-2 BCA ~ 34,261 at 169,283. The moving 
party must show a compelling reason why the Board should modify its decision. ADT 
Construction Group, Inc., ASBCA No. 55358, 14-1 BCA ~ 35,508 at 174,041. 
We hold that the Board correctly treated appellant's motion as a motion for 
summary judgment. Moreover, because BOS is a German corporate entity formed by a 

joint venture between SKE International GmbH, a German entity (SKE), and Bums & 
Roe Services Corp., an American entity, we further hold that the Board has an obligation 
to determine its own jurisdiction by examining the joint venture agreement between the 
joint venture parties. Specifically, we must examine whether either joint venture partner 
remained liable for the debts and obligations of the joint venture following the dissolution 
of the corporate joint venture entity. Therefore, even if we accepted as true appellant's 
factual allegations and evidence of German legal principles, we would reach the same 
conclusion: that the record before us is insufficient to determine whether the Board 
possesses jurisdiction to entertain this appeal. 
I. The Board Applied the Correct Legal Standard 
Appellant admits that it stated in its original motion that it sought a dismissal 
for failure to state a claim upon which relief may be granted (app. mot. at 2). 
Appellant also acknowledges that its motion relied on matters outside the pleadings, 
including evidence of principles of foreign law (id.). Despite this, appellant claims 
that the Board "misapprehended" (id. at 1) its argument and that the Board "elevate[d] 
form over substance" when it treated its motion as a motion for summary judgment 
(app. reply br. at 3). 
We disagree. Although appellant claims to be seeking a jurisdictional ruling by 
styling its motion as one for dismissal, appellant really seeks a ruling on the 
contractor's capacity to be sued (app. mot. at 1 ). If all that appellant seeks is dismissal 
of the appeal, it voluntarily could dismiss its appeal and leave the government to seek 
enforcement of the contracting officer's final decision through other means. Instead, 
appellant asks the Board to rule on whether the government's claim is a nullity on the 
grounds that the contractor lacked the capacity to be sued at the time the contracting 
officer issued her final decision (id.). 
As the United States Court of Federal Claims held in Adels berger v. United 
States, a motion addressing a party's capacity to sue, which relies on matters outside 
the pleadings and does not challenge subject matter jurisdiction, should be treated as a 
motion for summary judgment. 58 Fed. Cl. 616, 617 (2003) (applying summary 
judgment standard in holding that plaintiff who died prior to filing suit was not a 
proper party with the capacity to sue, and thus his action was a nullity). As we 
explained in our initial ruling, and as further set forth below, the record before us does 
not provide sufficient evidence to rule on the contractor's capacity to be sued. 
The cases relied on by appellant do not support its position. In WorleyParsons 
Int'!, Inc., ASBCA No. 57930, 14-1BCA,35,482 at 173,960, the Board did not 
address the issue of whether the contractor possessed the capacity to be sued, but 
instead ruled that the government's claim was a nullity because it was asserted against 
an entity that was not the CDA contractor. Specifically, the Board examined the terms 
of the agreement between two joint venture partners and concluded that the partners 
2 

intended the joint venture to be a separate legal entity, distinct from each of its 
partners. 
In this appeal, appellant's German law expert does not address the terms of the 
joint venture agreement, nor does he discuss the principles of German partnership law. 
Therefore, it is impossible to evaluate BOS's joint venture status under German law on 
the record before us. 
Instruments & Controls Service Co., ASBCA No. 38322, 89-3 BCA ii 22,237 
at 111, 794, likewise dealt with procedural defects of the government's claim, not with 
the contractor's capacity to be sued. As in WorleyParsons, it was not necessary for the 
Board to conduct a factual inquiry into the contractor's capacity to be sued, nor was it 
necessary for the Board to determine questions of foreign law in order to address 
whether the Board possessed jurisdiction to entertain the government's claim. 
In this appeal, there is no allegation that the government's claim was 
procedurally defective. Instead, appellant seeks a 
ruling on the contractor's capacity to 
be sued, a matter requiring an evidentiary and factual evaluation of the contractor's 
corporate existence as well as its status under applicable law. This evaluation 
necessary relies on matters outside the pleadings as well as on evidence of principles 
of foreign law. 
In determining questions of foreign law, we follow Board Rule 6(c) which, in 
turn, reflects Federal Rule of Civil Procedure (FED. R. CIV. P.) 44.1. Gesellschaft Fuer 
Fertigungstechnik u. Maschinenbau AG, ASBCA No. 24816, 81-1 BCA ii 14,924 
at 73,847. Under FED. R. C1v. P. 44.1 and Board Rule 6(c), determinations of foreign 
law are treated as questions oflaw. We may consider any relevant material or source, 
including 
testimony, whether or not submitted by a party or admissible under the 
Federal Rules of Evidence. The rule provides a considerable degree of discretion in 
determining the appropriate method for ascertaining what the foreign law is, whether it 
be by independent research or reliance on the parties. See Twohy v. First National 
Bank of Chicago, 758 F.2d 1185, 1191-95 (7th Cir. 1985). In this appeal, appellant's 
expert opinion regarding German law simply does not address the issues necessary to 
determine whether BOS possessed the capacity to be sued at the time the contracting 
officer issued her decision. Therefore, we reach the same conclusion as we did in our 
earlier opinion. 
II. The Board Properly Held that the Record is Insufficient to Resolve 
Whether BOS Possessed the Capacity to be Sued 
In its motion to dismiss, appellant focuses its entire argument on the status of 
BOS GmbH's corporate existence, under German law, at the time of the contracting 
officer's final decision (app. mot. at 4-6). This focus ignores the fact that BOS GmbH 
is a German corporate entity formed by a joint venture between SKE International 
3 

GmbH, a German entity, and Bums & Roe Services Corp., an American entity (app. 
mot. at 2). 
The Board possesses the discretion to evaluate its own jurisdiction at any time 
by examining and interpreting the joint venture agreement between joint venture 
partners. In Sarang-Nat'l Joint Venture, we rejected an argument that the Board's 
jurisdiction was limited to interpreting contracts with the government, holding that the 
Board may evaluate its own jurisdiction at any time by interpreting a joint venture 
agreement. ASBCA No. 54992, 06-1BCA~33,232 (citing Marshall N. Dana 
Constr., Inc. v. United States, 229 Ct. Cl. 862, 865 (1982); Rosinka Joint Venture, 
ASBCA No. 48143, 97-1BCA~28,653 (interpretingjoint venture agreement to 
authorize the general director of a multinational joint venture to initiate legal 
proceedings); American Export Group Int'/ Servs., lnc./Zublin Delaware, Inc., A Joint 
Venture, ASBCA No. 42616, 93-1BCA~25,373 (interpreting joint venture agreement 
to permit managing partner to conduct business on behalf of the joint venture without 
the authorization of the other partner)). 
As the Federal Circuit explained in Sade/mi Joint Venture v. Dalton, a joint 
venture is a "partnership created for a limited purpose." 5 F.3d 510, 513 (Fed. Cir. 
1993) (citing Lentz v. United States, 346 F.2d 570, 575, 171 Ct. Cl. 537 (1965)). As 
such, it is governed by the law applicable to partnerships, rather than corporations. 
Pine Prods. Corp. v. United States, 945 F.2d 1555, 1560 (Fed. Cir. 1991) (holding that 
general principles of partnership law are applicable to joint ventures); see also 
American Export Group, 93-1BCA~25,373 (holding that nature of a joint venture is 
similar to a traditional partnership). 
In this appeal, the salient question is not whether BOS GmbH lacked the 
capacity to be sued after 17 October 2014, but whether either joint venture partner 
remained liable for the debts and obligations of the joint venture following the 
dissolution of the corporate joint venture entity. See Pine Prods., 945 F.2d at 1560 
(holding that under general partnership law, a partner is jointly and severally liable for 
obligations and debts of the partnership). 
Indeed, BOS' s status as a joint venture raises a host of questions, none of which 
can be answered on the record before us. First, is there a written joint venture 
agreement setting forth the relative rights and responsibilities of the two joint venture 
partners? If so, what does it provide regarding each partner's obligation to contribute 
money back into the company to pay a government claim? 
Appellant asserts, without support, that BOS's members had no obligation 
under BOS's governing documents to contribute money back into the company to pay 
a government claim, had the claim been asserted prior to BOS's dissolution (app. mot. 
at 7). Notably, appellant has not produced any of the joint venture's governing 
documents, making it impossible for the Board or the government to evaluate the truth 
4 

of this assertion. Moreover, reviewing the joint venture agreement, if one exists, could 
shed light on whether the partnership between SKE and Bums & Roe survived the 
dissolution of BOS, the corporate entity created by the joint venture. 
Finally, even if we were to treat appellant's motion as a motion to dismiss and 
accept as true appellant's allegations and its expert's opinion on German law, we 
would reach the same conclusion - that the record before us is insufficient to 
determine whether BOS possessed the capacity to be sued at the time the contracting 
officer issued her final decision. 
Finally, discovery also is appropriate to determine whether BOS breached the 
duty of good faith and fair dealing before it dissolved, by failing to inform the 
government of its intentions and by depriving the government of its audit rights under 
the contract. 
For these reasons, we deny appellant's motion for reconsideration. 
Dated: 27 February 2017 
I concur 
~R'11t 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
5 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
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 Nos. 59829, 59907, Appeals of 
Edward Hayes, as Liquidator of Base Operation Services GmbH, rendered in 
conformance with the Board's Charter. 
Dated: 
6 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals