Delta Engineering, Inc.
Docket: ASBCA 58063
Decision date: 2014-03-18

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of-- ) 
) 
Delta Engineering, Inc. ) ASBCA No. 58063 
) 
Under Purchase Order No. 0000017897 ) 
Contract No. 000000-00-0-0000 (Implied-in-Fact) ) 
APPEARANCE FOR THE APPELLANT: Michael J. Trevelline, Esq. 
Law Office of Michael Trevelline 
Washington, DC 
APPEARANCES FOR THE AUTHORITY: Kathryn H.S. Pett, Esq. 
General Counsel 
Donald A. Laffert, Esq. 
Associate General Counsel 
Jeffrey Weinstein, Esq. 
Assistant General Counsel 
Washington Metropolitan Area 
Transit Authority 
Washington, DC 
OPINION BY ADMINISTRATIVE JUDGE PEACOCK ON 
THE AUTHORITY'S MOTION TO DISMISS 
Delta Engineering, Inc. (Delta or appellant) asserts that its interactions with the 
Washington Metropolitan Area Transit Authority (WMATA) gave rise to an 
implied-in-fact contract with WMATA. WMATA has moved to dismiss the appeal for 
lack of jurisdiction and also challenges certain relief requested by appellant. The motion 
is denied in part and granted in part for reasons detailed below. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
1. Delta is an engineering and manufacturing business that provides 
custom-engineered products ( compl. ~ 6). It is incorporated in the State of Maryland 
(compl. ~ 5). 
2. WMATA was created by an interstate compact entered into by the District of 
Columbia, the State of Maryland, and the Commonwealth of Virginia. See Watters v. 
Washington Metropolitan Area Transit Authority, 295 F.3d 36, 39 (D.C. Cir. 2002), cert. 
denied, 538 U.S. 922 (2003). Congress approved the compact in 1960. Pub. L. No. 
86-794, 7 4 Stat. 1031. The compact was amended and Congress, in 1966, consented to, 

adopted, and enacted for the District of Columbia the amendment which was titled the 
Washington Metropolitan Area Transit Authority Compact (Compact). Various parts of 
the Compact were later amended and approved by the signatories and Congress. See 
Pub. L. No. 89-774, 80 Stat. 1324; Watters, 295 F.3d at 39 n.3. WMATA operates a 
mass-transit system located in the Washington, DC metropolitan area (compl. ~ 4). 
3. Section 80 ofthe Compact is designated "Liability for Contracts and Torts." It 
provides as follows (80 Stat. 1350): 
The Authority shall be liable for its contracts and for 
its torts and those of its Directors, officers, employees and 
agents committed in the conduct of any proprietary function, 
in accordance with the law of the applicable Signatory 
(including rules on conflict of laws), but shall not be liable for 
any torts occurring in the performance of a governmental 
function. The exclusive remedy for such breach of contracts 
and torts for which the Authority shall be liable, as herein 
provided, shall be by suit against the Authority. Nothing 
contained in this Title shall be construed as a waiver by the 
District of Columbia, Maryland, Virginia and the counties 
and cities within the Zone of any immunity from suit. 
4. Delta has supplied minor products to WMA T A since 2001 ( compl. ~ 8). 
In 2007, WMATA initiated discussions with Delta about manufacturing a major, 
custom-engineered article - stock #R1823 7040 Rohr 1000 series Friction Ring (friction 
rings or rings) (compl. ~ 9). After reviewing technical specifications, Delta determined 
that it could engineer and locally cast the friction rings (compl. ~ 12). Knorr Brake 
Corporation (Knorr) was the original equipment manufacturer of the rings (compl. 
~~52-53). 
5. After appellant gave WMA TA a rough estimate and WMA TA made a more 
formal request, Delta provided a quote of $90,000 for development of 100 friction rings 
(compl. ~~ 13-16). On 11 June 2007, WMATA issued the captioned purchase order (PO) 
to Delta for 100 friction rings at $900 per ring (compl. ~ 17, ex. B). The purchase order 
is sometimes referenced hereinafter as the development contract. 
6. Delta asserts that during discussions in connection with and before issuance of 
the PO, WMATA promised that, if the rings were fully tested and found acceptable, 
appellant would be eligible to compete on future WMATA procurements of the friction 
rings.· Delta allegedly stated that it would only make the investments necessary to 
produce the rings if it were eligible to so compete and WMA T A allegedly agreed that 
Delta would be eligible and have that opportunity. Appellant refers to these 
commitments as the "Agreement." (Compl. ~~ 19-21) 
2 

7. Delta and WMA TA met on 4 March 2008 and agreed on production standards, 
tests to be performed, and a reduction in the order from 100 rings to 36 (compl. ~ 23). 
Michael DiPietro, appellant's president, attended for Delta (compl. ~ 25). Several 
executives, branch managers, engineering and procurement representatives attended for 
WMA T A ( compl. ~ 24 ). 
8. On 5 March 2008, WMATA employee, Ronald S. Johnson, prepared a 
memorandum with minutes ofthe 4 March 2008 meeting (compl. ~ 26, ex. C). The 
minutes stated: 
This memo is written to present meeting minutes with 
Michael DiPietro from Delta Engineering concerning brake 
discs. The meeting was held at the New Carrollton S&l 
facility on 03/04/08. Attendees included: Les Durrant, 
Gene Garzone, Dennis Early, Ivone Gopaul, Ed Totten, 
Michael Quander, Wallace Dent, Ron 
Johnson, and 
Michael DiPietro. 
Delta Engineering has been a supplier of many items to the 
Authority for several years and has always delivered a 
high-quality product. Due to dire needs of the Authority 
concerning the Knorr Friction Ring· for the Rohr 1000 Series 
Railcars, Procurement has contracted with Delta Engineering 
for an initial delivery of 100 friction rings. Delta Engineering 
has reversed engineered, provided drawings and mat~rial 
analysis of the current disc, and has contracted with 
foundries, primarily a foundry located in York, Pennsylvania, 
for the production of these discs. 
Since Delta Engineering does not have experience in the rail 
brake disc business, the attendees were concerned and 
stressed the need for dynamometer testing. It was proposed 
that Delta perform Finite Element Analysis (F AE) and 
dynamometer testing according to specifications provided by 
WMA TA. Delta is to provide a price that includes a ROM 
cost for the additional work. They will also provide an 
estimate as the amount of the cost they are to absorb and 
[how] much ofthe cost WMATA will cover .... 
A revised specification for brake discs will be provided to 
Delta Engineering and other companies who are interested in 
3 

supplying brake discs to the Authority. The specification will 
include FEA, dynamometer, and route profile specifications. 
Prior to production, the supplier must provide to the 
Authority a work schedule in order to determine realistic 
delivery dates. 
The material Delta Engineering suggests for this disc would 
be the same as the material used by Knorr. The attached 
e-mail indicates Delta's intent for conducting business with 
~TA. , 
Delta Engineering understands the need to deliver a quality 
part within a reasonable time period once an order has been 
placed and is prepared to fulfill their obligations. Delta will 
investigate FEA and dynamometer testing, a report will be 
sent to procurement. During the qualifying stage, a quote for 
multiple units will be provided to the Authority. 
Procurement has the responsibility to negotiate the terms of 
the contract with the suppliers. Conditions of the 
specifications must be met prior to Engineering evaluations of 
the discs for a one-year qualification test. 
(Compl., ex. C) 
9. The Johnson memorandum attached an undated email from Mr. DiPietro to 
~ T A which stated in part: 
I am writing you today to provide status on Delta 
Engineering's progress towards the supply of[the rings] .... 
Delta Engineering Inc. is performing a collaborative and self 
funded engineering/development effort to become a friction 
ring supplier. We have taken the existing rings, reverse 
engineered them using metallurgical evaluation, mechanical 
testing, chemical analysis and performed full dimensional 
inspections. We have used this information to develop a 
manufacturing routine that shall result in identical product. 
Delta Engineering has also worked with your engineering 
dept to understand their concerns and have positioned process 
inspections along the manufacturing route to ensure quality 
product. As we understand the program Delta Engineering 
Inc. is to supply a min of 36/100 of our manufactured parts 
4 

for the authority to test. Once these parts pass the testing and 
Delta Engineering is granted approval to supply these parts 
the balance of the order shall be honored. 
It is our intent to provide to the authority an annual volume of 
400+ friction rings; however it is understood that the 
authority may want more or less rings from us, at which time 
an "immediately-available" quantity, lead time for other 
quantities and price shall be negotiated. It is also our intent to 
work closely with the authority to develop alternatives to 
the existing design to include: material, shape, and 
"cross-compatible" solutions. 
Our progression towards the supply of the first 36 units has 
been slower than anticipated but we are making strides 
towards this end. In short these delays have pushed back the 
supply of parts from Q4-07 to Q 1-08. 
(Compl., ex. D) 
10. Appellant asserts that its email "makes it quite clear that Delta understood that 
it had been promised the opportunity to become a supplier if its friction rings were of an 
acceptable quality" ( compl. ~ 28). 
11. On 24 March 2008, appellant sent WMA T A a quote for 36 friction rings at 
$1,911.10 each for a total cost of $68,799.60. Delta stated, inter alia, that it would 
provide destructive dynamometer testing and part specific traceability to lot chemistry 
and microstructure, but not finite elemental analysis. With respect to pricing, the quote 
concluded: 
Delta Engineering Inc. has increased the unit price I disc 
on this order only to accommodate the above mentioned 
changes. $900 original price + $250 to account for the 
decrease in quantity+ $761.10 to 
cover the cost of 
performing dynamic testing of the friction rings ($27,400) = 
$1911.10 I disc[.] 
Delta Engineering Inc. has also invested $9,500 of design and 
engineering efforts into this project. Delta Engineering Inc. 
has purchased a custom foundry die for this project. Neither 
of these expenditures are to be recovered in the pricing 
quoted above. These expenses are to be considered Delta 
Engineering's cost-share. It is also important to note that our 
5 

pricing shall remain $900 with the exception of additional 
testing or expediting requirements that may result from this 
collaborative effort. 
(Compl. ~ 29, ex. E) 
12. WMA TA revised its 11 June 2007 PO on 24 March 2008 to take into account 
the 24 March 2008 Delta quote. The PO required appellant to deliver the 36 friction 
rings to a WMATA address in Landover, Maryland. WMATA's "Buyer" listed in the PO 
was Ivone Gopaul who attended the 4 March 
meeting. (Compl. ~ 29, ex. F) 
13. Delta avers that it manufactured the 36 friction rings, delivered them to 
WMA T A, and provided engineers to assist WMA T A in testing the rings. Appellant 
claims that its friction rings achieved superior performance. WMA T A allegedly stated 
that it was pleased with the rings, and indicated that Delta would "most likely win any 
future contracts" to supply the rings. (Compl. ~~ 30-34) 
14. WMATA issued an Invitation for Bid (IFB) relating to the friction rings in 
June 2010 (compl. ~ 35, ex. G). The original IFB sought bids for 500 friction rings in the 
base year and 500 friction rings for each of 4 option years (com pl. ~ 3 5, ex. G at 6-7). 
The description of the part for each year allowed bidders to supply either friction rings 
manufactured by Knorr or friction rings manufactured by Delta (com pl., ex. G at 6-7). 
The contract awarded pursuant to this solicitation is sometimes referenced hereinafter as 
the production contract. 
15. The Solicitation Instructions for the IFB included clause No.4, "PRIOR 
REPRESENTATIONS." This clause stated as follows: "The Authority assumes no 
responsibility for any understanding or representations concerning this solicitation made 
by any of its officers or agents prior to the issuance of the solicitation, the specifications, 
or related documents." (Compl., ex. Gat 8) 
16. The solicitation, as well as the development contract/purchase order, 
incorporated WMATA's General Provision "DISPUTES" clause which states: 
(a) Except as otherwise provided in this Contract, any 
dispute concerning a question of fact arising under or 
related to this Contract which is not disposed of by 
agreement shall be decided by the Contracting Officer, 
who shall reduce his/her decision to writing and mail or 
otherwise furnish a copy thereof to the Contractor. The 
decision of the Contracting Officer shall be final and 
conclusive unless, within thirty (30) calendar days from 
the date of receipt of such copy, the Contractor mails or 
6 

otherwise furnishes to the Contracting Officer a written 
notice of appeal addressed to the Authority Board of 
Directors. Such notice would indicate that an appeal is 
intended and should reference the decision and contract 
number. The decision of the Board of Directors or its 
duly authorized representative for the determination of 
such appeals shall be final and conclusive unless in 
proceedings initiated by either party for review of such 
decision in a court of competent jurisdiction, the court 
determines the decision to have been fraudulent, or 
capricious, or arbitrary, or so grossly erroneous as 
necessarily to imply bad faith, or is not supported by 
substantial evidence. In connection with any appeal 
proceeding under this clause, the Contractor, or the 
Authority, as the case may be, shall be afforded an 
opportunity to be heard and offer evidence in support of 
its appeal. Pending final decision of a dispute hereunder, 
the Contractor shall proceed diligently with the 
performance of the Contract and in accordance with the 
Contracting Officer's decision. The Armed Services 
Board of Contract Appeals is the authorized 
representative of the Board of Directors for final 
decisions on an appeal. 
(b) This DISPUTES clause does not preclude consideration 
of question [sic] of law in connection with decisions 
provided for in Section a. above. Nothing in the 
Contract, however, shall be construed as making final the 
decisions of the Board ofDirectors or its representative 
on a question oflaw. 
(Compl., ex. Gat GP-15 to GP-16; ex. B) 
17. Special Provision Clause 
37, "GOVERNING LAW," stated: "This contract 
shall be deemed to be an agreement under and shall be governed by the law of the 
District of Columbia, exclusive of its conflict of law principles, and the common law of 
the U.S. Federal contracts including precedents ofthe Federal Boards of Contract 
Appeals" ( compl., ex. G at SP-19). 
18. Delta avers that it "went through the trouble and expense of submitting a bid" 
based on promises that it would have that opportunity and on the IFB statement that its 
friction rings met WMATA's specifications (compl. ~~ 38-39). Appellant specifically 
noted that it was required to obtain a bid bond of$165,575. It obtained the bond by 
7 

providing a lien on real estate. The bank holding the bond will not release the bond 
because WMATA will not release Delta's bid guarantee letter which Delta views as 
evidence that WMA TA essentially admits it promised appellant the right to bid on 
solicitations. (Compl. '1['1[40-42) 
19. Appellant also notes that it took special efforts to comply with the IFB 
requirement that friction rings were required shortly after award and with a modification 
of the IFB (not in the record) to add a line item seeking 800 rings "with a clause requiring 
initial delivery as soon as possible." Delta was required to immediately proceed with the 
manufacture of 50 friction rings so they could be delivered in the first weeks of the 
contract. (Compl. '1['1[44-49) 
20. Delta allegedly submitted the lowest bid in response to the IFB in June 2010. 
It alleges that its profit for the base year and 4 option years would have been $827,875 
given the prices bid and 25 percent profit. (Compl. '1['1[50-51) Knorr also submitted a bid 
( compl. '11'11 52-53). 
21. Delta avers that it was initially told by WMA T A that it had lost the friction 
ring production contract. In a second conversation with WMA T A's procurement office, 
appellant alleges it was told that it had been awarded the contract. In a third 
conversation, WMA T A allegedly informed Delta that WMA T A would award a partial 
order "and that engineering was making provisions to place Delta discs alongside Knorr 
discs on its trains." Thereafter, WMATA indicated Knorr would be awarded the contract 
allegedly because of a mistake by WMA T A. WMA T A allegedly stated that its internal 
rules only allowed it to purchase equipment from an OEM, and Delta was never qualified 
to bid on the IFB. The rule was allegedly based on a policy mandate from the WMATA 
quality department that brake discs could only be purchased from an OEM, i.e., Knorr. 
(Compl. '11'11 54-59) 
22. Delta avers that WMATA did not offer any explanation for the policy change, 
whether the change had been discussed, if so, who had discussed it, when the change was 
made, or why it appeared to be made after Delta was the low bidder on the friction ring 
IFB. In appellant's view, these questions could have been answered if it had filed a bid 
protest. Delta alleges it did not do so because the WMA T A procurement manager 
advised that instead of pursuing a bid protest Delta should bid on the friction ring 
contract which would be up for renewal each year. Appellant asserts that it followed this 
"legal" advice to its detriment and in doing so missed out on profits that it might have 
earned under the contract. (Compl. '1['1[63-66) 
23. In November 2011, Delta submitted a claim regarding the friction rings matter 
to a WMA TA contracting officer. The contracting officer did not respond to the claim. 
(Compl. '1[1, ex. A) In February 2012, appellant filed a deemed denial appeal with the 
WMATA Board ofDirectors (compl. '1[2, ex. I). WMATA issued a letter essentially 
8 

denying Delta's appeal on 14 March 2012 based on arguments addressed in our decision 
below (compl. ~ 3, ex. K). 
24. By letter of30 March 2012, Delta filed an appeal from the WMATA denial 
with this Board. The appeal was docketed ASBCA No. 58063 on 4 April2012. 
25. Appellant's complaint includes eight causes of action. In Count I, Delta 
asserts breach of an implied-in-fact contract. Under the claimed implied-in-fact 
Agreement, Delta alleges it would be allowed to compete for disk brake contracts if it 
invested in the engineering and manufacturing of dies for the friction rings, participated 
in tests of the rings, and produced acceptable quality rings. Appellant alleges it did so 
because WMA T A represented that the agreement was presented to people who had 
authority to ratify it and they did so. Delta claims it incurred costs totaling $206,466.48 
to engineer, manufacture and test the rings. (Compl. ~~ 67-80) 
26. Count II of the complaint contends that the Agreement included a covenant of 
good faith and fair dealing that was breached by WMA T A resulting in damages of 
$206,466.48 (com pl. ~~ 81-85). 
27. Delta argues that various WMATA officials told them that it would be able to 
bid on future brake disk solicitations, that it would be in a good position to receive 
contracts. Delta asserts the statements were false, appellant detrimentally relied on them, 
and WMATA benefitted from Delta's reliance. As a result, in Count III Delta claims it is 
entitled to compensation of $206,466.48 and punitive damages of $1,000,000. (Compl. 
~~ 86-97) 
28. In Count IV, appellant characterizes the statements it says were made by 
WMA TA officials as negligent misrepresentations, and requests compensation of 
$206,466.48 and punitive damages of$1,000,000 (compl. ~~ 98-102). 
29. Count Vis labeled "Implied-in-Fact Unjust Enrichment." Delta contends that 
it provided valuable services in that WMATA was able to point to the price of the friction 
rings provided and obtain price reductions from Knorr. WMATA obtained and accepted 
the benefits and it would be inequitable to allow WMA T A to retain them. Appellant says 
it is entitled to at least $1,000,000. (Compl. ~~ 103-10) 
30. Appellant maintains, as to Count VI, that it made benefits available to 
WMA T 
A with the expectation that it would be allowed to compete for friction ring 
contracts under an "Implied-in-Fact Quantum Meruit" theory. Because Delta was not 
allowed to compete, it is entitled to damages of at least $1,000,000. (Com pl. ~~ 111-17) 
31. Count VII alleges breach of an implied-in-fact contract under which WMA TA 
was to provide legal advice to appellant. This is based on Delta's conversation with the 
9 

WMA T A procurement manager who stated that appellant should not file a bid protest but 
instead pursue future disk brake contracts. Delta said a bid protest would have been 
successful and it lost profits by accepting the procurement manager's legal advice. 
Appellant claims damages of$827,875. (Compl. ~~ 118-34) 
32. In Count VIII, appellant argues that WMATA's rejection of its friction ring 
bid was done in bad faith citing what it sees as conflicting rationales for the denial. Delta 
says it is entitled to compensation of$206,466.48 and punitive damages of$1,000,000. 
(Compl. ~~ 135-40) 
33. The Memorandum of Understanding Between the Armed Services Board of 
Contract Appeals and the Washington Metropolitan Area Transit Authority 
(Memorandum ofUnderstanding), dated 10 January 2001, as extended in October 2007, 
states in relevant part as follows: 
WHEREAS, both the Authority and the ASBCA are 
willing to continue the relationship whereby the ASBCA will 
adjudicate disputes under the WMA T 
A contracts. 
NOW THEREFORE, the Authority and the ASBCA 
have reached the following stipulations and agreements: 
1. The ASBCA shall provide a forum, together with 
all necessary services and facilities, for administrative 
resolution under Authority contracts containing a "Disputes" 
article for all appeals from final decisions of contracting 
officers issued under such contracts: 
DECISION 
WMA TA contends that we lack jurisdiction to decide this appeal and alternatively 
asserts that we lack authority to grant certain relief requested by Delta. 
Jurisdiction 
Appellant's claim is based in essential part on an alleged implied-in-fact contract 
between Delta and WMATA. WMATA's primary jurisdictional defense to these 
allegations is that any agreement contained no Disputes clause which is essential to the 
Board's authority to resolve WMATA disputes. The Board's agreement with WMATA 
confers authority to resolve appeals from the decisions of WMA T A contracting officers 
pursuant to the provisions ofthe Disputes clause ofWMATA contracts. Recently, we 
have detailed the history and evolution of the WMA T A Disputes clause and concluded 
that under the current clause the Board has jurisdiction to resolve breach claims "related 
10 

to" WMATA contracts. Cubic Transportation Systems, Inc., ASBCA No. 57770, 12-2 
BCA ~ 35,063 at 172,233-35. 
The issue now before us is whether the Board's agreement with WMA T A 
precludes consideration of implied-in-fact contract claims that do not expressly contain a 
"Disputes clause" because they are unwritten in whole or in part. WMATA's contentions 
are to be distinguished from government motions under the CDA that challenge our 
jurisdiction to resolve "implied-in-fact" contractual disputes. We have typically treated 
the latter as motions for failure to state a claim for which relief could be granted (see 
Engage Learning, Inc. v. Salazar, 660 F.3d 1346 (Fed. Cir. 2011)) or for summary 
judgment. As we stated in Ortiz Enterprises, Inc., ASBCA No. 52049, 01-1 BCA 
~ 31,155 at 153,894: 
To determine whether we have jurisdiction in a case of 
an alleged implied-in-fact contract, we in effect rule on the 
merits of the appeal as we would on a motion for summary 
judgment. See Reynolds Shipyard Corp., ASBCA No. 3 7281, 
90-1 BCA ~ 22,254 at 111,827; Choe-Kelly, Inc., ASBCA 
No. 43481, 92-2 BCA ~ 24,910 at 124,221 (where an 
implied-in-fact contract has been 
alleged, jurisdiction is 
intertwined with determining the merits of the allegation. 
The ASBCA has jurisdiction to entertain the appeal, at least 
to the point of establishing the existence of an implied 
contract. A Government motion to dismiss for lack of 
jurisdiction would cut off that claim in the same manner as a 
motion for summary judgment); Balboa Systems Co., Inc., 
ASBCA No. 39400, 91-2 BCA ~ 23,715 at 118,702 
(Government motion based on contention of no 
implied-in-fact contract, is more accurately one for summary 
judgment. .. ). 
In essence, the pleading of a valid implied-.in-fact contract is generally sufficient 
to support jurisdiction. Total Medical Mgmt., Inc. v. United States, 104 F.3d 1314, 1319 
(Fed. Cir.), cert. denied, 522 U.S. 857 (1997); see also Protecting the Homeland 
Innovations, LLC, ASBCA No. 58366, 13 BCA ~ 35,398 at 173, 667. Unlike our CDA 
jurisdiction, where we now routinely assume jurisdiction over both express and 
implied-in-fact contract disputes (41 U.S.C. § 7102(a)), our agreement with WMATA 
provides for jurisdiction based on the presence of a contract with a Disputes clause. 
WMA T A considers that jurisdiction is thus dependent on the presence of a formal, 
express contract. Taken to their logical conclusion, WMATA's contentions would 
deprive the Board of any jurisdiction over implied-in-fact contracts and authority to 
consider potentially actionable contractual communications by authorized WMA T A 
11 

officials unless they relate to an express written agreement that contains a Disputes 
clause. 
WMA T A's motion challenges primarily our jurisdiction to decide claims related 
to implied-in-fact contracts. Accordingly, this decision does not address the merits of 
appellant's assertions or discuss in detail the elements of proof required to establish that 
the parties entered into an implied-in-fact contract. Those elements of proof are: mutual 
intent to contract, unambiguous offer and acceptance, consideration and contracting 
authority on the part of the WMATA official(s) alleged to have entered into the 
agreement. E.g., City ofEl Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990), 
cert. denied, 501 U.S. 1230 (1991). Appellant has the burden of proving that we have 
subject matter jurisdiction. Corporate Systems Resources, Inc., ASBCA No. 58398, ·13 
BCA ~ 35,367 at 173,553; see also Rahil Exports, ASBCA No. 56832, 10-1 BCA 
~ 34,355; RGW Communications, Inc. d/b/a Watson Cable Co., ASBCA Nos. 54495, 
54557, 05-2 BCA ~ 32,972. 
WMATA's waiver of sovereign immunity "for its contracts" in Section 80 ofthe 
WMA TA Compact has been interpreted implicitly by the courts to apply to alleged 
breach of"implied-in-fact" contracts. See, e.g., Fulcrum Int'l, Inc. v. Prince George 
Center L Inc. & WMATA, 2011 U.S. Dist. LEXIS 104266 (D. Md. Sept. 15, 2011); 
Monument Realty LLC v. WMATA, 535 F. Supp. 2d 60, 70-72 (D.D.C. 2008). The 
question before us is whether our MOU with WMA TA and our consensual jurisdiction 
prescribed therein encompasses such "implied-in-fact" contract claims. The problematic, 
complicating distinction is that the MOU requires the presence of a Disputes clause 
according to WMA T A. For the reasons stated hereinafter and to the extent that the 
gravamen of appellant's averments relates to an implied-in-fact contract, we have 
jurisdiction to determine whether such a contract was entered into by the parties and 
resolve disputes related thereto. Although we agree with WMA T A that the clause is a 
prerequisite to our jurisdiction, we consider that the clause is mandatory and required to 
be incorporated into the contract alleged here if proven. Alternatively, we consider that 
the claimed implied terms are sufficiently "related to" the development 
contract purchase 
order which did expressly set forth the Disputes clause. 
First, if the implied contract is established, that contract must contain a Disputes 
clause in compliance with WMATA acquisition procedures. Section 2102.1 of the 
WMATA Procurement Manual (2004) requires that "all contracts [for supplies and 
services] entered into on behalfofthe Authority in an amount in excess of$10,000 ... shall 
include a disputes clause." Application of this mandatory requirement is not restricted to 
express contracts and we see no reason not to apply the requirement to "implied-in-fact" 
contracts where the elements of such contracts are established. Prior to the CDA when 
our jurisdiction was also dependent on a Disputes clause, we similarly concluded in Vitro 
Corp. of America, ASBCA No. 14448, 72-1 BCA ~ 9287 at 43,026-27: 
12 

[I]t is often said that the Board is without authority to grant 
relief under a contract implied in fact or an express offer 
supported by an implied acceptance because, it is assumed, 
such contracts may not contain the standard Disputes clause. 
This is an impermissible jump in logic, as cases may and do 
arise in which we are called upon to determine whether as a 
matter of fact and law a course of cqnduct resulted in an 
express or implied contract incorporating the standard 
Disputes clause .... 
... [T]he Board has inherent authority to determine the 
existence or nonexistence of a contract whenever such a 
determination is a necessary predicate to the resolution of a 
dispute alleged to arise under the terms of either an express or 
implied contract that allegedly provides an appropriate 
administrative remedy. 
Alternatively, we consider that the gravamen of the dispute may properly be 
considered to "relate to" the purchase order. Here the purchase order expressly sets forth 
the Disputes clause. The implied-in-fact agreement may be viewed as implied ancillary 
terms and conditions of that purchase order. 
WMATA does not contend that the existence of the express purchase order, 
intended to prequalify appellant as an approved source for the rings, precludes the 
existence of an implied contract. Cf Atlas Corp. v. United States, 895 F.2d 745, 754-55 
(Fed. Cir.), cert. denied, 498 U.S. 811 (1990) (certain claimed stabilization costs were 
related to the express contract costs that were included in the contract price; therefore, 
there could be no implied agreement to pay costs over and above those prices). WMA T 
A 
makes no argument that any implied agreement was encompassed by, or involved the 
same subject matter as, the express purchase order. Here, the alleged ancillary 
arrangement was 
"related to" the purchase order as delineated by the parties' negotiations 
which were structured and focused on the pricing and details of the prequalification 
requirements. However, both parties were aware that development costs had been carved 
out of the purchase order negotiations based on the alleged unwritten understanding. 
Appellant expressly excluded such costs in pricing the purchase order, allegedly on 
assurances from WMA T A that, if its friction rings proved satisfactory, Delta would be 
eligible to compete on subsequent friction ring procurements and its offers would be 
fairly considered in good faith by WMA T A. Here, the alleged agreement was severed 
from, and not within, the agreed scope of the purchase order. Cf Trauma Service Group 
v. United States, 104 F.3d 1321 (Fed. Cir. 1997) (alleged implied term of express contract 
regarding x-ray technician services was covered by and within the scope of, the express 
contract; facts otherwise failed to establish the existence of the implied-in-fact contract 
relating to the services). 
13 

The authority ofthe WMATA officials allegedly making the representations to 
appellant is simply one of the elements for determination by the Board in assessing 
whether an implied-in-fact agreement was formed. See, e.g., Digicon Corp., ASBCA 
No. 36907, 89-3 BCA ~ 21,966 (Authority issues, including ratification, go to the merits 
of the claim not our jurisdiction to entertain the appeal.). Cf Monument Realty, 535 
F. Supp. 2d at 70-72. 
Here, the production contract solicitation's "PRIOR REPRESENTATIONS" 
clause also does not insulate WMATA from liability. If proven (including mutual intent 
and assent), the communications between the parties established an implied-in-fact 
contract that could not be unilaterally abrogated by a clause in a solicitation issued more 
than a year after that contract was formed. In context, communications emanating from 
WMA T A during negotiations contemporaneous with issuance and amendment of the 
purchase order were not merely "representations" within the meaning and intent of the 
later production contract solicitation clause. Moreover, in this case the essence of the 
alleged agreement appears corroborated by WMA T A's express incorporation of the 
alternative Delta specification/design for the rings into the production contract 
solicitation and schedule. 
Additional Jurisdictional Issues and Authority to Grant Relief Requested 
To the extent that we conclude that WMATA and appellant entered into an 
implied-in-fact agreement, the relief and remedies available will depend on the precise 
nature and scope of that agreement and any breach. As stated above, we do not address 
the merits of the parties' contentions in this decision. The parties' arguments regarding 
potential relief and remedies are therefore, in significant part, premature. We decline to 
address them at this early stage in the litigation pending further development of the 
record. 
Nevertheless, we agree with WMATA that it is immune from liability for punitive 
damages. See, e.g., WMATA v. Quik Serve Foods, Inc., 402 F. Supp. 2d 198, 203 (D.D.C. 
2005); Wainwright v. WMATA, 958 F. Supp. 6, 9-10 (D.D.C. 1997). We further concur 
with WMA T 
A that it has not waived its sovereign immunity from liability for interest 
and therefore interest is not recoverable by appellant in this appeal. Cubic 
Transportation Systems, 12-2 BCA ~ 35,063 at 172,235; Breda Transportation, Inc., 
ENG BCA No. 6239, 98-2 BCA ~ 30,027; Kingston Constructors, Inc. v. WMATA, 860 
F. Supp. 886 (D.D.C. 1994); Muhtesem Co., ASBCA No. 57538, 12-1 BCA ~ 34,946. 
Accordingly, we grant WMATA's motion to strike portions of the complaint seeking 
punitive damages and interest because we lack authority to grant the requested relief. 
We are also without jurisdiction to resolve appellant's allegations in Counts VII 
and VIII that it was given incorrect legal advice (ostensibly from a non-lawyer) not to 
14 

protest award of the production contract. Those counts in essence seek to equitably estop 
WMA T A from disavowing that alleged misadvice. Whether the misadvice or 
"malpractice" allegations are categorized as a tort or a species of contract, we are without 
jurisdiction. The allegations do not relate to or arise out of the implied contract in 
dispute. The alleged "legal malpractice" is unrelated in time and substance to the 
operative facts involved in the alleged implied-in-fact contract in this appeal. It is not an 
acquisition by WMA T A for services, supplies, or construction covered by its 
Procurement Procedures Manual. It incorporates no Disputes clause and none would be 
required by the Manual for the alleged "contract." To the extent the allegations have 
"contractual" significance, we would have no jurisdiction over the subject matter of such 
a non-procurement contract. More fundamentally, we can envision no circumstances in 
this case where the WMA T A official had authority to give legal advice to the contractor 
that could form the subject matter of a binding contractual commitment. We also 
consider that appellant could not reasonably have relied on that gratuitous advice. 
WMATA further contends that any implied-in-fact agreement simply afforded 
appellant the "opportunity to bid" on subsequent procurement rings. Therefore, 
WMA T 
A contends that appellant should have filed a bid protest if it considers that it was 
denied that 
"opportunity." Because protests ofWMATA source selection decisions must 
be brought in a court of competent jurisdiction, WMA T A concludes that the breach of 
any implied agreement is not properly reviewable by, or within the post-award "disputes" 
jurisdiction of, the Board. 
We agree with WMATA that we do not have "protest" jurisdiction as such. Cf 
Coastal Corp. v. United States, 713 F.2d 728 (Fed. Cir. 1983). Here, however, appellant 
alleges that there was a pre-existing implied agreement that it would be eligible and given 
the opportunity to compete that predated submission of its production contract proposal. 
Appellant contends that it relied on the alleged government promise that it would be 
eligible to compete upon satisfactory completion of the prequalification purchase order 
and testing requirements. Appellant's claims are based on the specific WMATA 
agreement not on a general WMATA obligation to consider bids fairly. Express 
provisions have required that multiple award contractors be provided a "fair opportunity" 
to be considered for orders and provide for a CDA remedy where contractors are 
improperly excluded from eligibility to compete. HMRTech2, LLC, ASBCA No. 56829, 
10-1 BCA ~ 34,397; PAW & Associates, LLC, ASBCA No. 58534, 13 BCA ~ 35,462 at 
173,906-07. If agreement on the pertinent terms is established in this case by the 
evidence with sufficient definiteness and specificity, we see no reason to accord different 
treatment to implied contracts. Cf Monument Realty, 535 F. Supp. 2d at 68-72 (detailing 
cases finding preliminary agreements and agreements to negotiate to be enforceable 
where sufficiently definite and a clear intent to be bound was demonstrated). Regardless 
of whether Delta could have protested alleged WMATA improprieties in the evaluation 
and source selection process in another forum, a protest was not appellant's exclusive 
remedy and did not preclude Delta from pursuing breach of contract relief. 
15 

We also do not interpret appellant's allegations as limited solely to being afforded 
the "opportunity" to bid. If proven, the implied agreement encompassed Delta's 
eligibility and right to compete on an equal basis with Knorr and a concomitant WMA T A 
obligation to abide by its duty of good faith and fair dealing during the acquisition 
process. Indeed, the duty of good faith is embedd~d as an essential precept of 
WMATA's procurement policy and expressly incorporated into the July 2013 WMATA 
Procurement Procedures Manual at§ 2-2 which states, "These procedures require that all 
parties involved in the negotiation, performance, or administration of Authority contracts 
act in good faith." Cf Free & Ben, Inc., ASBCA No. 56129, 09-1 BCA ~ 34,127 at 
168,742 ("Implicit in every contract are the duties of good faith and fair dealing between 
the parties.") (and cases cited). We have jurisdiction to decide whether WMATA 
satisfied these alleged rights and duties, even though they may require us to consider 
matters related to the adequacy of competition, the provisions of the solicitation, 
evaluation ofthe competing offers and/or WMATA's source selection determination. In 
determining our jurisdiction over these allegations, we need not address whether the 
alleged conduct, if proved, amounted to "bad faith" on the part of WMA TA or whether a 
breach of the duty of good faith and fair dealing necessarily requires a finding of "bad 
faith." 
WMATA also labels appellant's contentions as tantamount to misrepresentation 
and fraud over which the Board lacks jurisdiction. We do not view the claim as alleging 
that WMA T 
A officials engaged in criminal or fraudulent conduct. It simply alleges that 
they entered into the implied agreement. Whether. the WMATA representatives' 
statements and conduct allegedly relied on by appellant also constituted fraud (or 
fraudulent misrepresentation) is beyond our jurisdiction as WMATA asserts. However, 
we are empowered to address appellant's allegations concerning the contractual 
consequences of the various communications in dispute. Cf The Federal Group, Inc. v. 
United States, 67 Fed. Cl. 87, 102 (2005). 
Appellant claims that the communications resulted in an implied-in-fact 
agreement. The gravamen of the claim does not seek relief based on an implied-in-law 
contract. Nevertheless, in Counts V and VI appellant seeks relief for "Implied-in-Fact 
Unjust Enrichment" and "Implied-in-Fact Quantum Meruit," respectively. It is well 
settled that we have no jurisdiction over contracts implied-in-law. E.g., Altanmia 
Commercial Marketing Co., ASBCA No. 55393, 09-1 BCA ~ 34,095. There is no basis 
to extend our jurisdiction to such contracts in the case of WMA T A. WMA T A has not 
waived its sovereign immunity from suits based on a contracts implied-in-law. See, e.g., 
Martin v. WMATA, 273 F. Supp. 2d 114, 119 (D.D.C. 2003); Greenbelt Ventures, LLC v. 
WMATA, No. AW-10-00157, 2010 WL 3469957 (D. Md. 2010), on recon., 2011 WL 
2175209 (D. Md. 2011) aff'd, 481 F. App'x 833 (4th Cir. 2012); Protecting the Homeland 
Innovations, 13 BCA ~ 35,398 at 173,666-67; cf Merritt v. United States, 267 U.S. 338, 
340-41 (1925) (discussing the absence of such a waiver in the Tucker Act); United States 
16 

v. Mitchell, 463 U.S. 206 (1983); Russell Corp. v. United States, 537 F.2d 474 (Ct. Cl. 
1976). The bases and rationale for recovery under an implied-in-fact agreement are 
distinct from recovery based on quantum meruit and unjust enrichment pursuant to an 
equitable implied-in-law contract. E.g., Algonac Manufacturing Co. v. United States, 192 
Ct. Cl. 649,673-77 (1970) (discussing in detail the distinctions between implied-in-fact 
and implied-in-law contracts); RGW Communications, 05-2 BCA, 32,972; The Public 
Warehousing Co., ASBCA No. 56022, 11-2 BCA, 34,788. To the extent that appellant 
seeks relief pursuant to an implied-in-law contract, we agree with WMATA that we lack 
jurisdiction. Accordingly, we grant WMA T A's motion to strike provisions in appellant's 
complaint that are based on recovery pursuant to such a contract. 
CONCLUSION 
We conclude that we have jurisdiction over appellant's claims relating to the 
alleged implied-in-fact contract associated with the development of the friction rings and 
deny WMATA's motion to the extent indicated above. We grant WMATA's motion to 
the extent that appellant seeks interest and punitive damages. We also grant WMATA's 
motion to dismiss for lack of jurisdiction Delta's claims arising out ofthe alleged legal 
misadvice. 
Dated: 18 March 2014 
I 
concur 
~~ 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
17 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting 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. 58063, Appeal of Delta 
Engineering, Inc., rendered in conformance with the Board's Charter. 
Dated: 
18 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals