Tech Projects, LLC
Docket: ASBCA 58789
Decision date: 2015-03-26

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of --
Tech Projects, LLC 
Under RFP Nos. W9124Q-08-T-0003 
W9124Q-08-R-0004 
APPEARANCE FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 58789 
Joseph E. Schmitz, Esq. 
Schmitz & Socarras LLP 
McLean, VA 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
CPT Evan C. Williams, JA 
Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE YOUNGER 
ON 
THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION 
Appellant Tech Projects, LLC (Tech Projects), a participant in the Small 
Business Set-Aside Program, seeks 
to recover costs incurred in connection with two 
requirements issued by the White Sands Missile Range, New Mexico (White Sands or 
Army). The first requirement was to design and install a virtual fence, and the second 
was to operate 
and maintain target control services. The government subsequently 
withdrew one requirement and cancelled the other. The government now moves to 
dismiss, arguing that we lack jurisdiction because no contracts were awarded. Tech 
Projects opposes, chiefly arguing that it has made the requisite non-frivolous allegation 
of jurisdiction. We deny the motion. 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
A. Virtual Fence Requirement 
1. By letter to White Sands dated 12 May 2008, a lead business development 
specialist in the Small Business Administration (SBA), pursuant to section 8(a) of the 
Small Business Act, 15 U.S.C. § 637(a), accepted a requirement for design and 
installation of a virtual fence on behalf of Tech Projects (gov't mot., ex. G-1 ). 
2. In his letter to White Sands, the specialist stated that SBA's "preliminary 
analysis indicates that this requirement is suitable for 8(a) contracting, and that TECH 

PROJECTS, LLC has the requisite capabilities to ... perform the work" (gov't mot., 
ex. G-1). 
3. By letter to SBA dated 8 September 2008, White Sands advised of its 
decision "to withdraw the Virtual Fence requirement from Tech Projects" based upon 
"difficulties in getting detailed information from the contractor in a timely manner" 
(gov't mot., ex. G-2 at 1 ). 
B. Target Control Services Requirement 
4. By letter to White Sands dated 23 May 2008, a lead business development 
specialist at SBA, pursuant to section 8(a), accepted a requirement for the operation, 
maintenance, and other support of Target Control Services on behalf of Tech Projects 
(gov't mot., ex. G-3). 
5. By email dated 26 September 2008 to SBA, the contracting officer advised 
that the requirement "has been cancelled in its entirety and will be performed in-house 
by government personnel" (gov't mot., ex. G-4 ). 
C. Claim and Appeal 
6. By letter to the contracting officer dated 10 December 2008, Tech Projects 
submitted a certified claim aggregating $185,346.40 for both the Virtual Fence and the 
Target Control System requirements (R4, tab 27). 
7. Following multiple difficulties in auditing the claim, as well as an initial 
decision in 2009, and a reconsideration request in 2011, the contracting officer 
rendered his final decision by date of 22 March 2013. The contracting officer 
determined that Tech Projects was entitled to reimbursement for a portion of its initial 
claim and denied a supplemental claim in its entirety. (R4, tab 50 at 10) In his 
decision, the contracting officer also asserted that "[t]he government is in agreement 
with Tech Projects that there is an implied contract when SBA acceptance occurs" (id. 
at 3). The contracting officer further stated that "[i]t is understood that there was never 
a formal written contract but the SBA Acceptance Letter and actions by the 
government could be reasonably perceived by Tech Projects (or any other 8 (a) 
contractor) to constitute an implied contract" (id. at 4). 
8. By letter to the Recorder dated 20 June 2013, Tech Projects brought this 
appeal. In its notice of appeal, which is in the nature of a complaint, Tech Projects 
alleges that the contracting officer "properly recognized that there was a contract in 
fact" regarding the Target Control System requirement (Notice of Appeal at 2). Tech 
Projects further asserted that it disputed the contracting officer's assertion that "there 
was no contract for the Virtual Fence requirement" and asked the Board to 
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"acknowledge that there were two contracts and that[,] in each case, the Contracting 
Officer's actions amounted to a termination for the convenience of the Government" 
(id. at 2). 
DECISION 
A. Contentions of the Parties 
In moving to dismiss, the Army first contends that we lack jurisdiction because 
the two requirements were withdrawn before contract award (gov't mot. at 3-4). The 
Army also urges that Tech Projects fails to allege sufficient facts to establish an 
implied-in-fact contract (id. at 4-5). Finally, the Army asserts that we lack jurisdiction 
over implied-in-law contracts (id. at 5-6). 
In opposing the Army's motion, Tech Projects asserts that it does not claim 
jurisdiction "based on either an express contract or an implied-in-law contract" 
(Memorandum of Law in Opposition to Government's Motion to Dismiss for Lack of 
Jurisdiction (app. opp'n) at 1). Tech Projects then argues that the contracting officer's 
determination that "there is an implied contract when SBA 
acceptance occurs" (see 
statement 7) is conclusive (app. opp'n at 2-5). 
After filing its opposition to the government's motion, Tech Projects filed both 
a supplemental response and a sur-reply. In both, Tech Projects asserted that the 
record supports "two implied-in-fact contracts (if not two express contracts)" 
(Supplemental Response to the Government's Motion to Dismiss for Lack of 
Jurisdiction (app. supp. resp.) at 1-2; Sur-Reply to Government's Reply to 
Supplemental Response to Government's Motion to Dismiss for Lack of Jurisdiction 
(app. sur-reply) at 7). Tech Projects also says that it "need only prove that either an 
express or an implied-in-fact contract exists" to establish jurisdiction (app. sur-reply 
at 6). We address these contentions below. 
B. Implied-In-Fact Contract 
We deny the Army's motion to dismiss. We conclude that Tech Projects has 
made a non-frivolous allegation that it had implied-in-fact contracts with the 
government. Under 41 U.S.C. § 7102(a), our Contract Disputes Act jurisdiction is 
limited to appeals involving "express or implied contracts for the procurement of 
services and property and for the disposal of personal property." Coastal Corp. v. 
United States, 713 F.2d 728, 730 (Fed. Cir. 1983). In Engage Learning, Inc. v. 
Salazar, 660 F.3d 1346 (Fed. Cir. 2011) the court recited its prior interpretation of a 
comparable provision in the Tucker Act, 28 U.S.C. § 149l(a)(l), which it read to 
"require[] no more than a non-frivolous allegation of a contract with the government." 
Engage, 660 F.3d at 1353. The court further explained that "a plaintiff need only 
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allege the existence of a contract to establish the Board's jurisdiction under the 
[Contract Disputes Act] 'relative to' an express or implied contract with an executive 
agency." Id. 
We followed Engage Learning in American General Trading & Contracting, 
WLL, ASBCA No. 56758, 12-1 BCA ~ 34,905, and in Tele-Consultants, Inc., ASBCA 
No. 58129, 13 BCA ~ 35,234. In American General, we rejected the government's 
argument that the contractor "must prove the existence of an implied-in-fact contract 
for the Board to exercise jurisdiction" over a breach claim. Instead, we quoted Engage 
to reemphasize that "a claimant 'need only allege the existence of a contract to 
establish the Board's jurisdiction." American General, 12-1BCA~34,905 at 171,640 
(quoting Engage Learning, 660 F.3d at 1353). Similarly, in Tele-Consultants, 
13 BCA ~ 35,234 at 172,994, we denied a motion to dismiss for lack of jurisdiction in 
which the government argued that the record contained no evidence of an 
implied-in-fact contract. We explained that "[g]iven [the contractor's] contention here 
that it did indeed directly enter into an implied-in-fact contract with the government..., 
we conclude we possess jurisdiction over this claim." 
The record here supports a similar conclusion. We reject the Army's argument 
that the appeal must be dismissed because Tech Projects "does not allege adequate 
facts to show that an implied-in-fact contract was ever formed" (gov't mot. at 5). To 
the contrary, Tech Projects has advanced more than a "non-frivolous allegation," 
Engage, 660 F .3d at 1353. The record contains the contracting officer's decision, in 
which he stated that "[t]he government is in agreement with Tech Projects that there is 
an implied contract when SBA acceptance occurs" and then declared that "the SBA 
Acceptance Letter and actions by the government could be reasonably perceived 
by 
Tech Projects (or any other 8 (a) contractor) to constitute an implied contract" 
(statement 7). Relying upon the contracting officer's decision, Tech Projects has 
alleged that he "properly recognized that there was a contract in fact" regarding the 
Target Control System requirement," and Tech Projects prayer for a 
determination 
"that there were two contracts and that[,] in each case, 
the Contracting Officer's 
actions amounted to a termination for the convenience of the Government" 
(statement 8), cannot be dismissed as frivolous. Given their grounding, they must be 
regarded as non-frivolous and sufficient to defeat the jurisdictional challenge posed by 
the present motion. 
We stress that we here decide only the issue of whether we have jurisdiction 
over Tech Projects' appeals. Our cases do not support converting 
a motion to dismiss 
for lack of jurisdiction to one for summary judgment. Tele-Consultants, 13 BCA 
~ 35,234 at 172,994; American General, 12-1 BCA ~ 34,905 at 171,640; Aries Marine 
Corp., ASBCA No. 37826, 90-1 BCA ~ 22,484 at 112,846-47. 
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We accordingly defer ruling whether contracts were formed regarding the two 
requirements to a merits proceeding, whether on a motion for summary judgment or 
after a hearing. 
CONCLUSION 
The government's motion to dismiss is denied. 
Dated: 26 March 2015 
I concur 
~~~ 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
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. 58789, Appeal of Tech 
Projects, LLC, rendered in conformance with the Board's Charter. 
Dated: 
5 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals 
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