AECOM Technical Services, Inc.
Docket: ASBCA 62800
Decision date: 2021-12-06

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE GOVERNMENT’S 
MOTION TO DISMISS FOR LACK OF JURISDICTION 
 
 Appellant, AECOM Technical Services, Inc., requests $681,469.70, alleging both 
a written contract and a contract implied-in-fact with the U.S. Army Corps of Engineers 
(compl. at 1 ¶ 2, 7-8).  The government moves to dismiss the appeal for lack of 
jurisdiction,1 saying it never had a contract with AECOM, and that the Board does not 
possess jurisdiction to entertain AECOM’s wrongful conversion claim (gov’t mot. at 1, 9, 
12). 
 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
   
 On May 8, 2015, the government awarded Contract No. W912DY-15-D-0040 to 
AECOM (gov’t mot., attach. 4 at 34).  The contract states that “[t]he objective of this 
acquisition is for the design, construction, and operation of energy savings projects to 
help meet mandated energy savings goals established in the Energy Policy Act of 1992,” 
and that the government “is awarding multiple Indefinite Delivery/Indefinite Quantity 
                                              
1 In conjunction with its jurisdictional motion, the government moved to dismiss portions 
of the appeal for failure to state a claim upon which relief may be granted, which 
motion will be addressed separately. 
Appeal of - )  
 )  
AECOM Technical Services, Inc. ) ASBCA No. 62800 
 )  
Under Contract No. W912DY-15-R-ESP7 )  
   
APPEARANCES FOR THE APPELLANT: Manju Gupta, Esq. 
William D. Edwards, Esq. 
Jonathan R. King, Esq. 
  Ulmer & Berne LLP 
    Cleveland, OH  
     
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Karen L. King Vanek, Esq. 
Margaret P. Simmons, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, Huntsville 

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(ID/IQ) type contracts to both large and small businesses” (id. at 35 §§ A.1, A.2).  The 
contract provides: 
 
Multiple Award Task Order Contract (MATOC) 
Capacity: The estimated programmatic capacity for the 
MATOC is $1.5 Billion.  The total capacity will be shared 
among all awardees in the MATOC pool, both large and 
small businesses. 
 
(Id. ¶ A.3)  On July 13, 2015, the government issued a “Request for Proposal (RFP), 
W912DY-15-R-ESP7, Buckley AFB, CO” to “All Energy Savings Performance 
Contracting (ESPC) III MATOC Contractors” that states: 
 
In accordance with paragraph H.2 of the CEHNC ESPC III 
Base Contract, “Procedures for Awarding Task Orders,” your 
firm is invited to submit a proposal for the efforts contained 
in Attachment 1, Performance Work Statement (PWS), for an 
Energy Savings Performance Contracting (ESPC) project 
anticipated at Buckley AFB, CO. 
 
(Gov’t mot., attach. 1 at 1)  On September 30, 2015, the government issued to AECOM 
“Solicitation W912DY-15-R-ESP7, Energy Savings Performance Contract (ESPC), 
Buckley AFB, CO,” informing AECOM that it “ha[d] been selected as the Energy 
Savings Performance Contractor for the new ESPC Buckley AFB project” (gov’t mot., 
attach. 6 at 196 (emphasis added)), and authorized AECOM “to proceed with Preliminary 
Assessment (PA) development and submission for the new ESPC project at USAF 
Buckley AFB” (gov’t mot., attach. 7 at 197).  The government further informed AECOM 
that “[y]our company shall perform the PA in accordance with Sections C.5.3 and C.5.4 
of the base IDIQ” (id.). 
 
 On February 17, 2016, the government “authorize[d] AECOM to proceed with the 
IGA/Feasibility Study, Design, and Price Proposal submission to include detailed cost 
and pricing data, for the Energy Conservation Measures (ECM) [] for the ESPC project at 
Buckley AFB, Denver, CO” (gov’t mot., attach. 8 at 198).  On March 24, 2016, the 
government “authorize[d] AECOM to proceed with the IGA/Feasibility Study, Design, 
and Price Proposal submission to include detailed cost and pricing data” for additional 
ECMs (gov’t mot., attach. 9 at 202).  On November 22, 2016, the government informed 
AECOM that it “ha[d] decided to not pursue this ESPC project, and has no plans to 
exercise its option to obtain ownership of any submitted documentation pertinent to this 
project issued in the NTP dated 17 Feb, 2016 for the ESPC project at Buckley AFB, 
Denver, CO” (gov’t mot., attach. 10 at 204). 
 
  

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On August 26, 2020, AECOM presented to the contracting officer a certified claim 
“for recovery of $681,469.70 in costs AECOM has incurred in connection with the work 
performed to develop and design the Project” (gov’t mot., attach. 5 at 156).  On 
December 3, 2020, the contracting officer denied AECOM’s claim (gov’t mot., attach. 16 
at 239).  The contracting officer stated: 
 
Per Section C Para 5.5 of AECOM’s Base Contract 
numbered W912DY-15-D-0400, . . . “the Government will not 
be subject to any costs associated with the feasibility study 
unless the Government exercises its option to obtain 
ownership of the submitted documentation.   
 
(Id. at 240 (emphasis added)) 
 
 In its notice of appeal to the Board, AECOM states (emphasis added): 
 
AECOM Technical Services, Inc. (“AECOM”), by and 
through counsel, hereby appeals the decision of contracting 
officer, Adam R. Sunstrom, dated December 3, 2020, a copy 
of which is attached as Exhibit A.  The contracting officer 
denied AECOM’s claim under Energy Savings Performance 
Contract No. W912DY-15-R-ESP7 with Huntsville Center, 
U.S. Army Corps of Engineers (“CEHNC”) (the “Contract”). 
 
(Gov’t mot., attach. 17 at 241) (emphasis added))  And in its complaint, AECOM alleges 
the following: 
 
Since 2008, AECOM has been a prequalified energy services 
contractor (“ESCO”) for CEHNC for energy savings 
performance contracts (“ESPCs”) under indefinite delivery/ 
indefinite quantity multiple award task order contracts 
(“MATOC”) No. W912DY-15-D-0040.  The MATOC is 
currently in its third contract iteration (“MATOC III”). 
 
On July 13, 2015, [the government] sought a proposal from 
AECOM and other MATOC III holders via Request for 
Proposal (“RFP”) No. W912DY-15-R-ESP7 for the 
development and implementation of energy conservation 
projects at Buckley Air Force Base, Colorado (the 
“Project”). 
 
 . . . . 
 

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After nearly 14 months of work on the Project, including 
multiple changes to the scope of the Project made with 
CEHNC’s constant assurance of an impending TO [Task 
Order] award, and less than one (1) month before the 
scheduled TO award date, CEHNC sent AECOM a letter on 
November 22, 2016, cancelling the Project. 
 
 . . . . 
 
Appellant’s claims, which were submitted to the [contracting 
officer] in AECOM’s certified claim [include] . . . AECOM is 
entitled to the fair market value of services provided to the 
government under an implied-in-fact contract. 
 
(Gov’t mot., attach. 18 at 245-46 ¶¶ 3-4, 246 ¶ 9, 248 ¶ 19) (emphases added)) 
  
DECISION 
 
 The government says that we lack jurisdiction to entertain the appeal because, it 
says, it never had a contract with AECOM (gov’t mot. at 8, 11).2  Pursuant to the 
Contract Disputes Act, 41 U.S.C. § 7105(e)(1)(A) (emphasis added), the Board “has 
jurisdiction to decide any appeal from a decision of a contracting officer of the 
Department of Defense, the Department of the Army, the Department of the Navy, the 
Department of the Air Force, or the National Aeronautics and Space Administration 
relative to a contract made by that department or agency.”  Jurisdiction under this 
provision requires no more than a non-frivolous allegation of a contract with the 
government.  Siemens Gov’t Techs., Inc., ASBCA No. 62806, 2021 WL 4395475 
(Sept. 15, 2021).  Thus, to establish Board jurisdiction under this provision, an appellant 
need only allege the existence of a contract.  Id.  This bar is low.  Id. 
 
 Based upon the record material set forth above, we conclude that AECOM has set 
forth a non-frivolous allegation of a contract with the government, whether that contract 
be “Base Contract No. W912DY-15-D-0400,” “Energy Savings Performance Contract 
                                              
2 The government purports to cite an ASBCA decision it refers to as “Vox Optima, LLC, 
ASBCA No. 62644, 2020-1 B.C.A (CCH) ¶ 37625,” for the proposition that 
AECOM “is not a ‘contractor’ . . . but rather a disappointed bidder” (gov’t mot. 
at 9).  However, our opinion at 20-1 BCA ¶ 37,625, which was issued in ASBCA 
No. 62313 (not ASBCA No. 62644)62, does not address that point; that point is 
addressed at Vox Optima, LLC, ASBCA No. 62644, 21-1 BCA ¶ 37,766 
at 183,320, which is a Rule 12.2 opinion that the government does not cite, and 
that has no value as precedent. 

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No. W912DY-15-R-ESP7,” or a contract with the government implied in fact, triggering 
our jurisdiction under 41 U.S.C. § 7105(e)(1)(A).  Cf. Siemens, 2021 WL 4395475 (citing 
cases and finding jurisdiction where appellant sought costs of producing plans for an 
Energy Savings Performance Contract project).  Whether AECOM had a contract with 
the government is a merits question for another day.  Id. 
 
 With respect to AECOM’s wrongful conversion claim, we possess jurisdiction to 
entertain claims of tortious breach of contract as opposed to independent torts.   
Qatar Int’l Trading Co., ASBCA No. 55533, 08-1 BCA ¶ 33,829 at 167,428.  In its 
complaint, AECOM alleges, citing Base Contract W912DY-15-D-0040, that the 
government “breached the contract when it violated the implied duty of good faith and 
fair dealing and MATOC III, Section C.26.4, by converting AECOM’s ECM designs and 
work product for its own use” (compl. at 1 ¶ 3, 7 ¶ 35 (emphasis added)).  And in 
response to the government’s motion, AECOM states that “the Government tortiously 
breached its contract with AECOM when it violated Section C.26.4 by converting 
AECOM’s ECM designs and work product for its own use” (app. resp. at 25 (emphasis 
added)).  Section C.26.4 of Base Contract W912DY-15-D-0040, Option to Obtain 
Ownership to Submitted Documentation and Concepts, provides: 
 
The Government shall have the option to obtain ownership of 
all surveys, feasibility studies, designs, and proposals 
submitted to the KO, including the content and technical 
approach presented.  If after the ESCO has performed 
feasibility study, designs, proposals, and/or site surveys the 
Government chooses to pursue a project by means other 
than this contract, the Government may exercise its option to 
obtain ownership of all surveys, proposals, and designs 
submitted to the KO, including the content and technical 
approach presented, for the individual ECM in question.   
The ESCO shall receive appropriate consideration for the 
ESCO effort on the particular ECM (i.e., recovery of study 
and design costs as estimated and submitted to the KO via the 
site survey report and the feasibility study report plus 
the cost to perform the site survey plus an appropriate mark-
up. . . .  If the ESCO and Government are unable to agree on 
price and terms for execution work efforts and the 
Government utilizes another ESCO, the Government should 
only pay those costs that are fair and reasonable for the work 
performed. 
 
(R4, tab 6 at 129 (emphasis added))  That is a claim of tortious breach of contract as 
opposed to an independent tort, and is, therefore, a claim that we possess jurisdiction to 
entertain.  Compare Brooke Enters., ASBCA No. 53993, 04-2 BCA ¶ 32,785 at 162,146, 

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162,151 (entertaining, without discussion of jurisdiction, contractor’s claim that the 
government wrongfully converted 12 storage containers; contract provided that 
contractor’s property could be sold to satisfy contactor indebtedness to military 
exchange); Home Entm’t, Inc., ASBCA No. 50791, 99-1 BCA ¶ 30,147 at 149,137 
(finding jurisdiction to entertain claim for damage to contractor property where military 
exchange allegedly “fail[ed] to perform its duty to repair and maintain the premises in 
accordance with ¶ 2(a) of the contract, causing damage to [contractor’s] property”); 
Travelers Indem. Co. v. United States, 16 Cl. Ct. 142, 151 (1988) (finding jurisdiction 
where claim of wrongful conversion of contract proceeds was “dependent upon a contract 
with the government”) with Qatar Int’l, 08-1 BCA ¶ 33,829 at 167,429 (finding no 
jurisdiction where “[t]he Army’s action in recovering the bulldozer after the driver died 
and placing the bulldozer in storage was a policing and security action,” and “distinctly 
separate and independent of the contract”). 
 
CONCLUSION 
 
 The government’s motion to dismiss for lack of jurisdiction is denied. 
 
 Dated:  December 6, 2021 
 
 
 
 
 
 
 
 
 
 
TIMOTHY P. MCILMAIL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 OWEN C. WILSON 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
 

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 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. 62800, Appeal of AECOM 
Technical Services, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  December 7, 2021  
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals