Vox Optima, LLC
Docket: ASBCA 62644
Decision date: 2020-12-15

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeal of - )  
 )  
Vox Optima, LLC ) ASBCA No.  62644 
 )   
Under Contract No. N00178-19-D-8818 )  
    
APPEARANCE FOR THE APPELLANT: Darrell M. Allen, Esq. 
    General Manager 
 
APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. 
    Navy Chief Trial Attorney 
 Matthew B. Hawkins, Esq. 
    Trial Attorney 
 
OPINION BY ADMINISTRATIVE JUDGE SHACKLEFORD 
PURSUANT TO BOARD RULE 12.21 
 
Before us is the Navy’s (government) Motion to Dismiss for Lack of Subject 
Matter Jurisdiction.  Vox Optima, LLC (appellant) opposes the motion.  As set forth 
more particularly below, we grant the motion and dismiss the appeal. 
 
In its motion, the government has set forth what it terms a Statement of 
Undisputed Facts.  In its reply opposing the motion, appellant does not dispute those 
facts.  Accordingly, we deem the following facts to be stipulated and, thus, undisputed.  
The facts have been modified for clarity and for conformance with the Board’s 
standard citation conventions. 
 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
 
1.  Appellant is an awardee of an indefinite-delivery indefinite-quantity (IDIQ) 
contract (known as the SeaPort-NxG contract) from the Navy under Contract 
No. N00178-19-D-8818 (Contract 8818), effective January 2, 2019 (R4, tab 1 at 1, 8). 
 
2.  Contract 8818 includes a maximum pass through rate of 8% on 
subcontractors (R4, tab 1 at 7). 
 
3.  Section C.8 of Contract 8818 describes the task order process, including in 
sub-section C.8.1., that in accordance with Federal Acquisition Regulation 16.505(b), 
                                              
1 A decision under Rule 12.2 shall have no value as precedent, and in the absence of 
fraud, shall be final and conclusive and may not be appealed or set aside. 

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“the Task Order Contracting Officer will give all awardees a ‘fair opportunity’ to be 
considered for each order in excess of $3,500.”  Sub-section C.8.2, discussing 
evaluation, indicates “[t]he ordering activity issuing the solicitation will evaluate 
responses against selection criteria contained in the proposed [task order].”  (R4, tab 1 
at 12-13) 
 
4.  On March 6, 2019, the Navy solicited responses or proposals from interested 
small businesses holding a SeaPort-NxG contract under task order Solicitation 
No. N00178-19-R-3502 (Solicitation 3502) (R4, tab 2 at 1-2). 
 
5.  Solicitation 3502 was amended three times and had a closing date and time 
of 10:00 am on April 24, 2019 (R4, tabs 2-5). 
 
6.  Section L.3 of Solicitation 3502 advised that “[o]fferors whose mandatory 
requirements clearly show that the Offeror does not stand a reasonable chance of 
award, will not be invited to make an Oral Presentation” (R4, tab 5 at 58). 
 
7.  Section L.8 of Solicitation 3502 indicated two mandatory requirements:  
Requirement 1 – Facility Security Clearance; and Requirement 2 – Personnel Security 
Clearance (R4, tab 5 at 63). 
 
8.  Section M.6 of Solicitation 3502 indicated offerors would be evaluated, 
among other factors, under Factor 1:  Portfolio (Oral) and Factor 2:  Technical 
Understanding/Capability/Approach (Oral) (R4, tab 5 at 81-82). 
 
9.  Appellant timely submitted a response or proposal under Solicitation 3502 
(R4, tab 6). 
 
10.  Following solicitation closing and receipt of appellant’s proposal, the Navy 
issued an invitation via e-mail to appellant on May 1, 2019, to provide an oral 
presentation to the Navy.  The oral presentation was scheduled for May 15, 2019, in 
Dahlgren, Virginia.  (R4, tab 7) 
 
11.  Appellant traveled from New Mexico to Virginia and made the 
presentation to the Navy on May 15, 2019 (app. supp. R4, tab 3). 
 
12.  On December 2, 2019, the task order contracting officer notified appellant 
via e-mail that it had submitted a materially non-compliant proposal and its proposal was 
unacceptable and ineligible for award.  The basis for the notification was appellant’s 
inclusion in its proposal of a pass through rate exceeding 8%, which exceeded the 
maximum pass through rate in appellant’s SeaPort-NxG contract.  (R4, tab 10 at 2) 
 

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13.  As part of the notice to appellant of ineligibility for award, on December 2, 
2019, the task order contracting officer indicated appellant would not be permitted an 
opportunity to revise its proposal (R4, tab 10 at 3). 
 
14.  Appellant responded to the notice of ineligibility via multiple e-mails the 
same day, asking to correct the pass through rate and submitting a corrected cost 
summary (R4, tabs 11-12). 
 
15.  Appellant then e-mailed another Navy employee on December 3, 2019, 
asking that employee to intervene on its behalf with the task order contracting officer 
to revisit the decision on ineligibility (R4, tab 13). 
 
16.  The task order contracting officer responded to appellant via e-mail on 
December 3, 2019, indicating the Navy would not consider the corrected cost 
summary format or a revision to appellant’s proposal (R4, tab 14). 
 
17.  On December 4, 2019, appellant sent an e-mail to the task order contracting 
officer requesting a phone call and asking that the buying activity’s ombudsman join 
in the call (R4, tab 15).  The task order contracting officer sent a reply via e-mail on 
December 5, 2019, indicating no further debriefing would be provided and reinforcing 
the decision on ineligibility of appellant’s proposal for award (R4, tab 16). 
 
18.  The same day, appellant provided a reply by e-mail, indicating it was not 
requesting a debriefing and requesting contact information for both the buying activity 
ombudsman and the SeaPort-NxG ombudsman (R4, tab 17). 
 
19.  A series of additional exchanges by e-mail then occurred between 
appellant, the buying activity ombudsman, and the SeaPort-NxG ombudsman.  Both 
ombudsmen replied to appellant that they considered the task order contracting 
officer’s decision on ineligibility to be made in accordance with the terms of the 
solicitation.  (R4, tabs 18-20) 
 
20.  Following the response from both ombudsmen, appellant filed its first 
appeal with the Board on December 17, 2019, which we docketed as ASBCA 
No. 62313 (R4, tab 21). 
 
21.  On April 8, 2020, the Navy awarded the task order from Solicitation 3502 
to StraCon Services Group, LLC, providing notice of the award by e-mail to appellant 
(R4, tab 22). 
 
22.  Following the Board’s dismissal of appellant’s first appeal (ASBCA 
No. 62313) on June 2, 2020, due to a failure to file a claim with the contracting officer, 
Vox Optima, LLC, ASBCA No. 62313, 20-1 BCA ¶ 37,625, appellant submitted a 

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claim to the task order contracting officer on June 17, 2020.  The claim requested 
reimbursement for costs incurred by appellant for its proposal under Solicitation 3502, 
consisting of salary and other costs for a key employee designated in the proposal, 
travel costs to attend the oral presentation, and costs to prepare a portfolio for the oral 
presentation.  (R4, tab 24) 
 
23.  On August 11, 2020, the task order contracting officer denied the claim, 
finding appellant was provided fair opportunity and that the decision on ineligibility 
was proper under the terms and conditions of both appellant’s SeaPort-NxG contract 
and the task order solicitation (R4, tab 27). 
 
CONTENTIONS OF THE PARTIES 
 
Count I – Breach of Opportunity to Compete Clause 
 
In Count I of its complaint, appellant contends that the decision to eliminate Vox 
Optima from consideration for Solicitation 3502 was arbitrary and capricious and 
violated the fair opportunity to compete clause in Contract 8818, causing it to suffer 
damages of over $50,000 (compl. at 2-32).  In its motion to dismiss, the government 
argues that appellant was provided a fair opportunity to compete under the SeaPort-NxG 
contract by participating in the task order solicitation and by submitting an offer.  
Furthermore, the government stated that  
 
[a]ppellant’s disagreement otherwise with the task order 
contracting officer’s evaluation of its proposal is akin to a 
bid protest challenge by a disappointed offeror, which does 
not state a claim within the CDA.  Appeal of Chugach 
Federal Solutions, Inc., ASBCA No. 61320, 2019-1 BCA 
¶ 37380, 2019 ASBCA Lexis 189 at 12-13 (citing Coastal 
Corp. v. United States, 713 F2d 728, 370 (Fed. Cir. 1983) 
(holding that an implied contract to treat bids honestly and 
fairly is not a contract covered by the CDA)).  See also 
Amaratek, ASBCA No. 60503, 2016-1 BCA ¶ 36,491 
at 177,831-32. 
 
(Gov’t mot. at 4) 
 
In its response to the Motion to Dismiss, appellant states that while the government 
argues that the contracting officer’s decision to exclude appellant from the task order 
was akin to a bid protest, which does not state a claim under the Contract Disputes Act 
                                              
2 Appellant did not number the pages of its complaint.  As such, any reference to page 
numbers refers to the PDF page number.  

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(CDA), said argument disregards the fact that appellant is the holder of the prime 
(IDIQ Contract 8818) which gave it a promise of a fair opportunity to be considered 
for each order in excess of $3,500.  (App. resp. at 2) 
 
Count II – Breach of Contract by Detrimental Reliance 
 
Count II of appellant’s complaint alleges that when the agency invited it to 
participate in oral presentations in support of its proposal it made an enforceable 
promise that Vox Optima would remain in consideration for the task order on the basis 
of the proposal previously submitted.  Thus, Vox Optima relied on this promise to its 
detriment by incurring additional costs in the form of salary, travel, and printing costs. 
Despite this “promise” that Vox Optima would remain in consideration, it was 
eliminated from consideration solely because of the spreadsheet discrepancy in Vox 
Optima’s proposal.  (Compl. at 3-4) 
 
In its Motion to Dismiss the government states: 
 
Appellant also argues that the Navy’s conduct in inviting 
Appellant to participate in an oral presentation was an 
enforceable promise that Appellant would remain in 
consideration for award of the task order.  This promise is 
not expressly stated in Appellant’s SeaPort-NxG contract 
or in the task order solicitation, nor can it be reasonably 
inferred as a promise from any term or condition in 
Appellant’s SeaPort-NxG contract or the task order 
solicitation. 
 
(Gov’t mot. at 4) 
 
Appellant counters in its response to the motion, in part, as follows: 
 
The Appellant’s proposal under solicitation N00178-19-R-
3502 erroneously included a pass-through rate of 8.15%, 
and this was known to the Navy when it received the 
Appellant’s proposal.  However, the Navy invited the 
Appellant to make an oral presentation anyway.  The Navy 
later disqualified Appellant’s proposal because it was 
“materially non-compliant” and “its proposal was 
unacceptable and ineligible for award[.]”[]  The basis for 
the disqualification was Appellant’s inclusion in its 
proposal of a pass through rate exceeding 8%, which 
exceeded the maximum pass through rate in Appellant’s 
SeaPort-NxG contract. . . . Since this was the reason for 

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disqualification, the Navy should not have invited the 
Appellant to make an oral presentation . . . because 
“[O]fferors whose mandatory requirements clearly show 
that the Offereor does not stand a reasonable chance of 
award, will not be invited to make an oral presentation.” 
 
(App. resp. at 3)  Appellant concludes that the CO’s invitation to make an oral 
presentation and appellant’s reliance thereon caused it to incur additional costs and 
“constitutes a contract formed on the doctrine of detrimental reliance” (id. at 3-4). 
 
DECISION 
 
Having considered the contentions of the parties and the stipulated facts, we 
dismiss the claim for proposal costs based upon the breach of fair opportunity to 
compete clause in the IDIQ contract for lack of jurisdiction, as it amounts to a bid 
protest for which we do not have jurisdiction.  See, e.g. Coastal Corp. v. United States, 
713 F.2d 728, 730 (Fed. Cir. 1983).  With respect to the claim that appellant is entitled 
to proposal costs due to a breach of contract based upon detrimental reliance, we 
likewise dismiss that claim for lack of jurisdiction. 
 
Breach of Fair Opportunity to Compete Clause 
 
Appellant complains that by inviting appellant to make an oral presentation and 
incur costs, when in fact appellant had made a mistake in its proposal which would 
have disqualified it for award of the procurement, the government breached the fair 
opportunity to compete clause in the IDIQ contract.  In support of that view, appellant 
cites Community Consulting International, ASBCA No. 53489, 02-2 BCA ¶ 31,940 
and two other Board decisions for the proposition that “[t]he Federal Acquisition and 
Streamlining Act’s (FASA) bid protest bar does not preclude a claim for breach of 
contract damages for lack of a fair opportunity to compete.”  However, appellant was 
not excluded from the procurement, it was invited to submit a proposal and it was 
invited to make an oral presentation so it was given fair opportunity to compete.  
Appellant made a mistake in its proposal, and whether the government noticed that 
mistake before or after it invited appellant to make a presentation and incur additional 
costs does not change the fact that appellant was given a fair opportunity to compete.  
Thus, Community Consulting does not apply. 
 
The costs appellant seeks are bid/proposal costs incurred in an effort to obtain a 
contract, which never came into existence.  Section 7102 of the Contract Disputes Act 
(41 U. S.C §7101-7109) states that the CDA applies to any express or implied contract 
made by an executive agency for the procurement of property; the procurement of 
services; the procurement of construction, alteration, repair, or maintenance of real 
property; or the disposal of personal property.  Thus, a contract must exist for CDA 

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jurisdiction to attach.  Engage Learning, Inc. v Salazar, 660 F.3d 1346, 1353 (Fed. Cir. 
2011).  No contract was ever made with Vox Optima for the work sought in 
Solicitation No. N00178-19-R-3502, and thus there is no contract under which it could 
file a claim.  Its only avenue for relief would be through a protest of the procurement, 
a class of cases for which we lack jurisdiction. 
 
Breach of Contract by Detrimental Reliance 
 
As to appellant’s second argument, breach of contract by detrimental reliance, it 
is unclear which contract appellant believes was breached.  It could not have been the 
IDIQ contract nor could it have been the contract resulting from the procurement 
complained of because appellant was not awarded that contract.  Nor is a contract 
based upon the conduct of the parties, a contract for the procurement of goods, or 
services or construction, or disposal of property. 
 
Tellingly, appellant cites no cases from the Courts or this Board or any other 
Board to support its view of the law.  The only case cited is a quote from Paragon 
Energy Corp. v. United States, 645 F.2d 966, 975 (Ct. Cl. 1981), wherein the Court 
stated: 
 
Congress could not have expressed itself more clearly to 
the effect that all contractor claims based upon a valid 
contractual theory fall within the procuring agencies' 
jurisdiction under the Contract Disputes Act.  This was 
essential to Congress' design that all contract disputes be 
resolved according to the same set of procedures, 
beginning with the decision of the contracting officer. 
 
Appellant uses the Paragon citation for the general proposition that “this Board clearly 
has jurisdiction to adjudicate this claim” (app. resp. at 4).  The context of this quote 
however is a claim under Public Law 85-804 and for reformation and the Court was 
not considering whether a contract subject to the CDA existed, the court found that 
one clearly did in that case as it found the claim for reformation to be pursuant to the 
CDA and the claim under Public Law 85-804 was not. 
  

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CONCLUSION 
 
Based upon the foregoing, appellant’s claim is dismissed for lack of 
jurisdiction. 
 
Dated:  December 15, 2020 
 
 
 
RICHARD SHACKLEFORD 
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. 62644, Appeal of Vox 
Optima, LLC, rendered in conformance with the Board’s Charter. 
 
Dated:  December 15, 2020 
 
 
  
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals