Intellicheck, Inc.
Docket: ASBCA 61709
Decision date: 2021-06-24

 
ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeal of -- ) 
 ) 
Intellicheck, Inc. ) 
 ) 
   ) 
 
 
APPEARANCE FOR THE APPELLANT: William A. Shook, Esq. 
  The Law Offices of William A. Shook PLLC 
  Washington, DC 
  
APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. 
  Navy Chief Trial Attorney 
Toya M. McLendon, Esq. 
  Trial Attorney 
 
OPINION BY ADMINISTRATIVE JUDGE PAUL  
ON THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT 
 
 Pending before the Board are cross-motions for summary judgment.  The dispute 
involves an alleged implied-in-fact contract between the parties.  Intellicheck, Inc. 
(Intellicheck or appellant) served as a subcontractor on a Navy task order.  Following 
completion of the task order, Intellicheck asserts that it formed an implied-in-fact 
contract with the Navy to store and maintain certain property used in the task order until 
provided disposal instructions.  Because we conclude that Intellicheck failed to establish 
the existence of an implied-in-fact contract, we grant summary judgment in favor of the 
Navy.   
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 
  
 1.  On May 31, 2005, the Navy awarded a multiple award contract vehicle to The 
Analysis Group, LLC (TAG) under Contract No. N00178-05-D-4617 (R4, tab 1 at 1, 8).  
On September 9, 2011, the Navy awarded TAG Task Order FD01 under the contract (R4, 
tab 2 at 57).  TAG is a wholly-owned subsidiary of The KEYW Corporation (KEYW) 
(R4, tab 8a at 116).  On September 9, 2011, KEYW entered into a subcontract with 
Intellicheck.  The agreement provided that Intellicheck would perform as a subcontractor 
to TAG on Task Order FD01.  (R4, tab 8c at 152) 
 
ASBCA No.   61709 
Under Contract No.  000000-00-0-0000 

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 2.  Intellicheck previously served as the primary contractor on Navy Contract 
No. N00167-06-C-0005.  This initial contract was for the development of a Floating Area 
Network Littoral Sensor Grid (FAN LSG).  The FAN LSG was composed of a series of 
floating sensorized buoys developed for over-water wireless networking capabilities for 
ship to ship connectivity.  (R4, tab 2 at 59; gov’t mot. at 2; app. mot. at 2)   
 
 3.  Task Order FD01 was awarded to TAG “teaming with Intellicheck . . . as a 
subcontractor” (R4, tab 8a at 116).  It was for engineering and technical support, focusing 
on system integration, testing, demonstration and certification/qualification of the FAN 
LSG system (R4, tab 2 at 59).  It also stated that the “LSG system developed/fabricated is 
Government property and the disposition of the LSG system will be provided by the 
Navy upon completion of [the] task order” (R4, tab 2 at 61).  The task order was 
completed on September 6, 2012, six months ahead of the period of performance end date 
(R4, tab 2 at 66, tab 8a at 118).   
 
 4.  From October 2012 to September 2013 there were a series of emails between 
the Navy, the Defense Contract Management Agency (DCMA), KEYW/TAG, and 
Intellicheck regarding property management procedures and disposal of the FAN LSG 
buoys (see R4, tabs 3-7).  Despite this communication, the property remained in 
Intellicheck’s possession.   
 
 5.  In August 2013, TAG submitted to the Navy an invoice for services and costs 
incurred by Intellicheck.  The invoice included Intellicheck’s storage costs at that point in 
time.  The government paid the invoice.  (Compl. ¶ 10; answer ¶ 10) 
  
 6.  On September 23, 2013, TAG filed a certified claim for incurred additional 
labor costs (R4, tab 8a at 116).  The contracting officer (CO) denied TAG’s claim on 
December 19, 2013 (R4, tab 8a).  On March 17, 2014, TAG appealed the denial of its 
claim (R4, tab 8).  The Board docketed the appeal as ASBCA No. 59221.  On August 22, 
2014, TAG and the Navy executed a release and settlement of all claims.  (R4, tabs 9, 11 
at 229)  The release stated that “this Settlement Agreement also covers any and all costs 
of any kind to which Intellicheck Mobilisa or any other subcontractors or entity may be 
entitled to for any work related to the claim, whether known or unknown, as set forth in 
ASBCA No. 59221” (R4, tab 9 at 225).   
 
 7.  On April 21, 2015, Intellicheck’s Chief Financial Officer (CFO) contacted the 
Navy via email to inform them that Intellicheck was still in possession of property under 
the aforementioned contracts.  The email stated, “We continue to store [N]avy property 
relating to two Navy contracts for the Buoy system; a Navy direct contract [N00167-06-
C-0005], as well as our subcontract with KeyW [N00178-05-D-4617-FD01].  Would you 
please advise what you would like us to do with this property?”  (R4, tab 12 at 253) 
 

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 8.  After a series of emails between the Navy, DCMA, KEYW/TAG, and 
Intellicheck, the government provided final disposal instructions for the property in 
Intellicheck’s possession.  On December 28, 2015, Intellicheck released the last of the 
property in its possession.  (R4, tabs 12-14, 15C-F) 
 
 9.  On September 6, 2016, Intellicheck submitted a certified claim to the 
contracting officer in the amount of $129,181.03.  Intellicheck’s claim was for the “costs 
associated with the storage, maintenance and disposal of the Navy systems.”  It stated 
that “the Navy systems include very large marine buoys that had to be stored in rented 
space and required ongoing maintenance.”  (R4, tab 15 at 258-59)  The claimed storage 
costs dated back to August 22, 2014 (R4, tab 15G at 274), which was the date that the 
Navy and TAG executed their settlement agreement in ASBCA No. 59221.  The claim 
also included “additional labor and consulting costs in order to comply with the 
Government [disposal] direction.”  Finally, the claim asserted that these costs stemmed 
from an implied-in-fact contract between Intellicheck and the Navy.  (R4, tab 15 at 258)   
  
 10.  On June 25, 2018, the CO denied Intellicheck’s claim.  The CO’s final 
decision (COFD) concluded that Intellicheck’s claim was precluded by the settlement 
agreement between TAG and the Navy; that Intellicheck, as a subcontractor on Task 
Order FD01, did not have standing to bring a claim under the contract; and that 
Intellicheck failed to establish the existence of an implied-in-fact contract with the Navy.  
(R4, tab 19) 
 
 11.  On July 18, 2018, Intellicheck appealed the denial of its claim, which the 
Board docketed as ASBCA No. 61709.   
 
DECISION 
 
 The parties initially elected to have this appeal processed by submission without a 
hearing pursuant to Board Rule 11.  However, when their individual Rule 11 opening 
briefs were due, the parties filed cross-motions for summary judgement.  The parties also 
filed individual responses in opposition to the opposing parties’ motion for summary 
judgment.   
 
I.  Standard of Review  
 
 The standards of review and burdens of proof of a motion for summary judgment 
and a decision on the merits under Board Rule 11 vary substantially.  Reed Int’l, Inc., 
ASBCA No. 61451 et al., 20-1 BCA ¶ 37,587 at 182,513 (citing DG21, LLC, ASBCA 
No. 57980, 15-1 BCA ¶ 36,016 at 175,909 n.1).  We evaluate cross-motions for summary 
judgment under the well-settled standard:  “Summary judgment is properly granted only 
where there is no genuine issue of material fact and the movant is entitled to judgment as 
a matter of law.  The moving party bears the burden of establishing the absence of any 

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genuine issue of material fact and all significant doubt over factual issues must be 
resolved in favor of the party opposing summary judgment.”  Mingus Constructors, Inc. 
v. United States, 812F.2d 1387, 1390 (Fed. Cir. 1987) (citations omitted).  A material fact 
is one that may affect the outcome of the decision.  Anderson v. Liberty Lobby, Inc., 477 
U.S. 242, 248 (1986).  “To ward off summary judgment, the non-moving party must do 
more than make mere allegations; it must assert facts sufficient to show a dispute of 
material fact.”  New Iraq Ahd Co., ASBCA No. 59304, 15-1 BCA ¶ 35,849 at 175,291 
(citing Mingus, 812 F.2d at 1390-91).   
 
II.  Appellant’s Motion for Summary Judgment  
 
 Appellant argues that it had an implied-in-fact contract with the government to 
maintain and store government property pending receipt of disposal instructions.  It 
argues that the prior settlement agreement between the Navy and TAG does not preclude 
its claim because the settlement agreement related only to the request to realign funds and 
did not address storage costs.  Finally, appellant maintains that its implied-in-fact contract 
is not precluded by an express contract because the express contract is between the Navy 
and TAG, not Intellicheck.   
 
III.  The Government’s Cross-Motion for Summary Judgment  
 
 First, the government asserts that appellant does not have privity of contract with 
the government to bring its claim.  Next, it argues that there was no implied-in-fact 
contract with appellant and that, even if there was an implied-in-fact contract, it was 
precluded by an express contract between the Navy and TAG.  Finally, the government 
argues that the claim is precluded by the settlement agreement. 
 
IV.  Implied-in-fact Contracts  
 
 The material facts are not in dispute, making this appeal ripe for decision on 
summary judgment.  The principal legal dispute is whether there was an implied-in-fact 
contract between the parties for the storage, maintenance, and disposal of the property 
used in Task Order FD01.  Because we find that the parties did not have an implied-in-
fact contract, we grant summary judgment in favor of the Navy.   
 
 An implied-in-fact contract is “founded upon a meeting of the minds, which, 
although not embodied in an express contract, is inferred, as a fact, from conduct of the 
parties showing, in the light of the surrounding circumstances, their tacit understanding.”  
City of Cincinnati v. United States, 153, F.3d 1375, 1377 (Fed. Cir. 1998) (quoting 
Baltimore & Ohio R.R. Co. v. United States, 261 U.S. 592, 597 (1923)).  The elements of 
an implied-in-fact contract are the same as for an express contract.  Hanlin v. United 
States, 316 F.3d 1325, 1328 (Fed. Cir. 2003).  It requires proof of “(1) mutuality of 
intent, (2) consideration, (3) an unambiguous offer and acceptance, and (4) ‘actual 

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authority’ on the part of the government’s representative to bind the government in 
contract.”  Id.   
 
 Appellant’s motion identifies two offers and acceptance forming the alleged 
implied-in-fact contract.  We will address both in turn.  First, appellant argues that the 
Navy initially offered through TAG the use of government property for performance of 
Task Order FD01.  Appellant maintains that it accepted the offer expecting to receive 
disposal instructions upon completion of the task order.  (App. mot. at 9)  This initial 
offer and acceptance identified by appellant cannot be reasonably viewed as forming an 
implied-in-fact contract between the Navy and Intellicheck.  Rather, the offer identified 
by appellant was part of the express contract – Task Order FD01 – between the Navy and 
TAG.  While the task order was awarded to TAG “teaming with Intellicheck . . . as a 
subcontractor” (SOF ¶ 3), the parties in privity of contract were the Navy and TAG, not 
Intellicheck.  Notably, the task order did state that upon competition the Navy would 
provide disposal instructions for the government property (SOF ¶ 3).  However, this was 
a term of the express contract between the Navy and TAG.  Appellant would have us 
believe that by entering into a contract with TAG, the Navy was also entering into an 
implied-in-fact contract with TAG’s subcontractor.  We disagree.   
 
 Next, appellant argues that after the task order was completed, appellant “by its 
actions, offered to continue to maintain and store the Navy-owned equipment consistent 
with general Government requirements pending receipt of Government disposal 
instructions.”  Appellant argues that after the task order was closed, “the Navy, through 
its actions of not providing timely disposal instructions, accepted [appellant’s] offer to 
continue to properly maintain and store the Navy-owned equipment pending final 
Government disposal instructions.”  (App. mot. at 9-10)   
 
 Again, we do not agree.  An implied-in-fact contract must include mutuality of 
intent, and an unambiguous offer and acceptance.  In order to establish mutuality of 
intent, appellant must show, by objective evidence, the existence of an offer and 
acceptance.  Guardian Safety & Supply LLC d/b/a Enviro Safety Products, ASBCA 
No. 61932, 19-1 BCA ¶ 37,333 at 181,561 (citing Anderson v. United States, 344 F.3d 
1343, 1353 (Fed. Cir. 2003)).  Once an offer is made, “acceptance of the offer [must] be 
manifested by conduct that indicates assent to the proposed bargain.”  Guardian Safety & 
Supply, 19-1 BCA ¶37,333 at 181,561 (quoting Northrop Grumman Sys. Corp. Space 
Sys. Div., ASBCA No. 54774, 10-2 BCA ¶ 34,517 at 170,237). 
 
 Appellant’s argument rests on the idea that the parties’ apparent inaction created a 
new contract, separate and apart from the Navy’s contract with TAG.  The task order was 
completed on September 6, 2012 (SOF ¶ 3).  Thereafter, from October 2012 to 
September 2013, there was some email exchange between the Navy, DCMA, 
KEYW/TAG, and Intellicheck regarding property management procedures (SOF ¶ 4).  It 
is not clear why the property was not disposed of at that time.  Instead, the parties’ focus 

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appears to have shifted to the claim filed by TAG.  An affidavit from appellant’s CFO, 
submitted as an exhibit to its motion, states that from September 2013 to August 2014, 
appellant focused on supporting TAG’s claim against the Navy (app. mot., ex. A-1 at 2 
¶ 13).  TAG’s claim was settled on August 22, 2014 (SOF ¶ 6).  Thereafter, from 
September 2014 to April 2015, appellant focused on a leadership change to a new Chief 
Executive Officer (app. mot., ex. A-1 at 2 ¶ 15).  It was in April 2015 that appellant 
contacted the Navy again about the property still in its possession (SOF ¶ 7).  Appellant 
has not identified any communication with the Navy that could serve as the basis of the 
alleged implied-in-fact contract.  Rather, after the settlement agreement with TAG was 
finalized and the task order was closed out, the Navy and Intellicheck continued to 
maintain the same status quo with respect to the property that there was under the task 
order.  Appellant argues that apparent inaction on the part of the Navy to provide final 
disposal instructions created an implied-in-fact contract between the parties.  Under these 
circumstances, we fail to see how the conduct of the parties could establish a new 
contract.   
 
 Appellant notes that in August 2013, Navy contracting officials approved and 
authorized the payment of appellant’s storage costs up to that point in time (SOF ¶ 5).  
Appellant argues that this establishes that the Navy’s contracting officials knew that 
appellant remained in possession of the equipment, knew that its storage costs were 
ongoing, and that there were no disposal instructions provided until December 2015 (app. 
mot. at 10-11).  To appellant’s credit, this does appear to establish that Navy officials 
knew appellant was in possession of this equipment and incurring storage costs.  We 
could also infer that by paying the invoice in August 2013, the Navy believed the storage 
costs were legitimate.  However, crucially for purposes of our analysis, these costs were 
paid pursuant to the task order that the Navy had with TAG.  The costs were not paid as 
part of an implied-in-fact contract.  Paying the invoiced storage costs under the task order 
does not mean that the Navy was tacitly agreeing to enter into a separate implied-in-fact 
contract with appellant.   
 
 Furthermore, appellant initially seeking and actually being paid for its storage 
costs via an invoice submitted under the task order shows that appellant believed these 
costs fell within the realm of the task order, and not a separate implied-in-fact contract.  
The questions relating to the ongoing storage costs and disposal of the property should 
have been addressed before executing the August 2014 settlement agreement and before 
the task order was closed out.   
 
 Having determined that appellant failed to establish the existence of an implied-in-
fact contract, we need not consider the scope of the settlement agreement between the 
Navy and TAG and whether these costs can be brought as a sponsored claim under the 
task order.   
 

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CONCLUSION 
 
 For the reasons stated above, appellant’s motion for summary judgment is denied.  
The government’s cross-motion for summary judgment is granted and the appeal is 
denied.   
 
 Dated:  June 24, 2021 
 
 
 
 
 
 
 
 
 
MICHAEL T. PAUL 
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. 61709, Appeal of 
Intellicheck, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated: June 24, 2021 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals