Man & Machine, Inc.
Docket: ASBCA 58355, ASBCA 59008
Decision date: 2015-12-14

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of --
Man & Machine , Inc. 
Under Contract No. 000000-00-0-0000 
APPEARANCE FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 61608 
Mr. Clifton Broumand 
President 
Laurel C. Gillespie , Esq. 
Chief Trial Attorney 
Ian F. Rothfuss , Esq. 
James A. Douglas , Esq. 
Trial Attorneys 
Defense Health Agency 
Falls Church , VA 
OPINION BY ADMINISTRATIVE JUDGE SHACKLE FORD ON THE 
GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION AND 
FAILURE TO STATE A CLAIM 
The government moves to dismiss this appeal for lack of jurisdiction, arguing 
that no contract existed between the parties , or, in the alternative , that appellant failed 
to state a claim upon which relief can be granted. Appellant opposes the motion. The 
Board grants the motion and dismisses the appeal for lack of jurisdiction. 
STATEMENT OF FACTS (SOF) FOR PURPOS ES OF THE MOTION 
1. In 2015 , a nurse consultant for the Infection Preve ntion and Control Service 
at Walter Reed National IVIilitary Medicai Center (hereinafter WRNMMC) requested 
the WRNMMC information technology (IT) department conduct market research to 
determine if it could find a company with a common access card (CAC) enabled 
keyboard that could be easily sanitized and disinfected (gov 't mot. , ex. G-1 at 1 ). 
2. In response to the request , the WRNMMC chief information officer (CIO) 
assigned Mr. Marshall Bailey , an information technology contractor, to identify 
potential vendors of such CAC-enabled keyboards (gov 't mot., exs. G-1 at 1, G-3 at 1). 
3. Mr. Bailey identified Man & Machine , Inc., (hereinafter appellant or MMI) 
as a potential vendor for such products , since MMI designed and manufactured 
keyboards , mice, and other computer accessories (gov 't mot., ex. G-3 at 1-2). 

4. Mr. Bailey requested information about MMI 's waterproof keyboards , mice, 
and accessories to test and evaluate (gov 't mot. , ex. 3 at 1 ). In response to the request 
from the government , MMI sent test products to WRNMMC on or about December 14, 
2015 (app. resp ., exs. A-1 to -3). 
5. Over the course of the next year, MMI and WRNMMC communicated 
regarding the products pro vided. The parties discussed potential modifications and 
Mr. Baile y' s inabilit y to obtain fundin g for purchase of any produ cts. (R4 , tabs 1 (b ), 
l (c); app. resp. , exs . A-3 , -4, -8) 
6. In an email dated Janua ry 16, 2017, MMI reque sted WRNMMC return the 
products , stating "[we] would like to get our products back so we can show them to 
other people. If not, then no problem. " (R4 , tab 1 (b) at DHA-R4-9) 
7. On or about November 7, 2017, WRNMMC recei ved two invoices from 
MMI dated October 23, 2017 (gov 't mot. , ex. G-3 at 3). The first invoice number 
328291 , totaled $118 ,773.00 for miscellaneous product development costs (R4, tab l(a) 
at DHA-R4-2) . The second invoice number 328290, totaled $1 ,744.18 for the various 
keyboards and mice sent to WRNMMC (R4 , tab l(a) at DHA-R4-3-4). 
8. In addition to the invoices , WRNMMC recei ved an und ated letter , indicating 
it was included with the invoices. The letter stated that MMI "agreed to provide and 
understood that [WRNMMC] are not committing to the purchase of any product. " 
Even so, MMI alleged in the letter that WRNMMC constructivel y accepted the 
products and was required to pay for them . (R4 , tab 1) 
9. In November 2017 , WRNMMC attempted to return the equipment provided 
by MMI (gov' t mot. , ex. G-2 at 2). MMI refused to accept the products , alleging that 
WRNMMC did not follow the "process " MMI required for return shipment. Additionall y, 
MMI assumed that the products were not properl y decontaminated before return , although 
it is unclear if this was ever investigated or discussed amongst the parties. (App. resp. at 3) 
10. By correspondence dated December 20, 2017 , MMI forwarded the letter , 
invoices , and attachments to the head of the Defense Health Agen cy (DHA) contracting 
activity. The correspondence specifically states "[t]his is not under formal contract as 
we didn 't know one was required. " (R4, tab 2) 
11. The contracting officer sent a letter to MMI on December 21 , 201 7, 
indicating DHA would not respond to the package submitted by MMI because it was 
not a properly certified claim (R4, tab 3). MMI responded by correspondence dated 
December 22, 2017 , certifying its claim (R4 , tab 4). 
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12. The contracting officer issued a final decision denying appellant's claim by 
letter dated February 7 , 2018 (R4 , tab 5). MMI timely filed its notice of appeal with the 
Board on April 23, 2018. 
DECISION 
The government contends that the Board lacks jurisdiction over this appeal 
because no contract , express or implied , existed. Alternati vely, the government argues 
that even if the Board were to find jurisdiction over the appeal , MMI failed to state a 
claim upon which relief can be granted because the facts contained in appellant ' s 
complaint fail to allege the existence of a contract. MMI opposes the motion , arguing 
that it has made a non-fri volous assertion of an implied contract between the parties. 
MMI also argues that there has been a conversion of its property and efforts , allowing 
for recovery. 
"Appellant , as the proponent of the Board ' s jurisdiction , bears the burden of 
establishing jurisdiction by a preponderance of the evidence ." CCIE & Co. , ASBCA 
Nos. 58355 , 59008 , 14-1 BCA ,r 35,700 at 174,816 (internal citations omitted). "The 
facts supporting jurisdiction are subject to our fact-finding upon a review of the 
record." Id. 
While the existence of a contract is essential to establish jurisdiction , an appellant 
"need only allege the existence of a contract to establish the Board ' s jurisdiction under 
the CDA. " American General Trading & Contracting, WLL, ASBCA No. 56758 , 12-1 
BCA ,r 34,905 at 171,640 (quoting Engage Learning , Inc. v. Salazar, 660 F.3d 1346, 
1353 (Fed. Cir. 2011)). The appellant "need not prove that either an express or 
implied-in-fact contract exists. Whether such a contract was formed and breached goes 
to the merits of the appeal. " Tele-Consultants , Inc., ASBCA No. 58129 , 13-1 BCA ,r 
35,234 at 172,994 (internal citations omitted). "However , appellant must be able to 
make a non-frivolous allegation that a contract existed between it and the government. " 
Interaction Research Inst., Inc., ASBCA No. 61505 , 18-1 BCA ,r 37,196 at 180,080 
(citing Leviathan Corporation, ASBCA No. 58659 , 16-1 BCA ,r 36,372 at 177,294). To 
make a non-frivolous assertion of the existence of a contract , "an appellant must present 
at least some plausible evidence of a contract to satisfy both the 'preponderance of the 
evidence' standard and the 'non-frivolous ' allegation standard." Safeco Ins. Co. of Am. , 
ASBCA No. 60952 , 17-1 BCA ,r 36,819 at 179,450. 
The parties agree no express contract exists (SOF ,r 8). Thus , we must determine 
if the factual allegations amount to a "non-frivolous " allegation of an implied-in-fact 
contract. "An implied-in-fact contract has all the requirements of an express contract 
except that the evidence of the meeting of the minds differs. " Safeco, 17-1 BCA ,r 
36,819 at 179,450 (citing Hanlin v. United States, 316 F.3d 1325, 1328 (Fed. Cir. 
2003)). As such, in order to estab lish the possibility of an implied-in-fact contract , an 
appe llant should analyze its allegations of the existence of a contract with an eye 
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towards the following: ( 1) mutuality of intent ; (2) consideration; (3) lack of ambiguity 
in offer and acceptance; and ( 4) the existence of a government representative whose 
conduct is relied upon who had actual authority to bind the government in a contract. 
Safeco, 17-1 BCA ,r 36,819 at 179,450 (quoting Todd Pacific Shipyards Corp., ASBCA 
No. 55126 , 08-2 BCA ,r 33,891 at 167,755). 
In Safeco, the Board looked to other decisions involving similar jurisdictional 
motions in order to analyze when an allegation amounted to "non-frivolous " stating : 
In Tech Projects, LLC , ASBCA No. 58789 , 15-1 BCA ,r 
35,940, we denied a motion to dismiss for lack of jurisdiction 
because the contracting officer 's final decision agreed that 
there was an implied-in-fact contract. Id. at 175,661. In 
Black Tiger Co., ASBCA No. 59819 , 16-1 BCA ,r 36,423, 
we denied a government motion to dismiss for lack of 
jurisdiction because the "notice of appeal included (1) a 
contract number ; (2) an SF 1449 that identified appellant on 
the first page of the contract as the contractor ; and (3) a 
document appellant asserted was an invoice for the equipment 
provided under the contract. " Id. at 177,570. In Leviathan 
Corp., 16-1 BCA ,r 36,372, we denied a motion to dismiss for 
lack of jurisdiction because of a contract modification that 
offered settlement "on behalf of the U.S. Government " and 
included a release of claims. Id. at 177,294. We concluded 
that in each of these cases appellant had made a 
"non-frivolous " allegation that a contract existed between it 
and the government. However , in each case there were facts 
that indicated a contract existed. We do not see any 
similarities between these cases and the facts alleged by 
Safeco . Some of the problems we have are that the COE was 
not a party to the escrow agreement [ ... ] and reliance by 
subcontractors iikewise does not indicate an intent to enter 
into a contract. The facts itemized above do not relate in any 
way to any of the elements of an implied-in-fact contract , i.e., 
mutuality of intent to contract , lack of ambiguity in offer and 
acceptance , consideration, and that the government 
representative whose conduct is relied upon had actual 
authority to bind the government in contract. Safeco has not 
made a "non-frivolous " allegation that an implied-in-fact 
contract existed between it and the COE. 
Id. at 179, 450-51. 
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Although MMI alleges there is an implied contract between the parties , like the 
appellant in Safeco, it does nothing more to support this assertion . Instead, appellant 
focuses on the fact that it provided pricing , terms and conditions to WRNMMC , and 
that WRNMMC did not return the products (SOF 115, 6; see also app. resp. at 6). The 
facts presented by appellant do not relate to the elements of an implied-in-fact contract. 
Appellant admits there was no mutual intent for the parties to enter into a contract. In 
fact, appellant admits that it knew the government was under no obligation to purchase 
any of the products it voluntarily sent for evaluation. (SOF 118, 10) Additionall y, at 
no point during the exchanges between appellant and WRNMMC was a person with 
authority to bind the government involved. In fact, the majority, if not all substantive 
conversations about the product took place with Mr. Bailey, a contractor himself (SOF 
1 2). As such, we conclude that appellant has not made a "non-frivolous" assertion of 
an implied-in-fact contract between itself and the government. 
Further , while the Board understands appellant 's position that WRNMMC is 
responsible for damages under a theory of conversion , "[t]he Board lacks jurisdiction to 
entertain a claim based upon tortious conduct which is independent of a contract 
between the government and a prime contractor. " Qatar Int '! Trading Co. , ASBCA 
No. 55533, 08-1 BCA 133 ,829 at 167,428 (citing L&M Thomas Concrete Co., ASBCA 
Nos. 49198, 49615, 98-1BCA129 ,560 at 146,538). Here, because appellant failed to 
make a non-frivolous assertion about the existence of a contract, the Board does not 
have jurisdiction over any claims for tortious conduct, as such claims could not arise 
from a related contractual obligation. 
CONCLUSION 
The Board lacks jurisdiction over Man & Machine , Inc.' s appeal. The 
government 's motion is granted and the appeal is dismissed for lack of jurisdiction. 
Dated : July 26, 2019 
(Signatures continued) 
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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 
I concur 
/1 .·~ CRAif:t. CLARKE 
Administrative Judge 
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. 61608, Appeal of Man & 
Machine, Inc., rendered in conformance with the Board 's Charter. · 
Dated: 
6 . 
PAULLA K. GATES-LEWIS 
Recorder , Armed Services 
Board of Contract Appeals