Aviation Training Consulting, LLC
Docket: ASBCA 63634
Decision date: 2024-01-11

ARMED SERVICES BOARD OF CONTRACT APPEALS 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON GOVERNMENT’S 
MOTION TO DISMISS FOR LACK OF JURISDICTION 
 
 According to its complaint, appellant “operates, maintains, supports, and 
upgrades the Air Force’s training systems (or trainers) for B-52 bombers,” pursuant to 
its contract with the government.1  Among the relief that appellant seeks in this appeal 
is an equitable adjustment in the amount of $512,319.16, pursuant to Section 3610 of 
the Coronavirus Aid, Relief, and Economic Security (CARES) Act, Pub. L. No. 116-
136, 134 Stat. 281, to compensate appellant for its alleged “increased costs to keep its 
workforce in ready state during the COVID-19 pandemic.”2  The contracting officer 
denied appellant’s request for that relief.3  The government moves to dismiss 
appellant’s Section 3610 request “for failure to state a claim within the subject matter 
jurisdiction of the Board to decide and grant,” asserting that “[t]he Board does not 
have subject matter jurisdiction [] to make an award to [appellant] under Section 3610 
of the CARES Act.”4  We treat that request strictly as a motion to dismiss for lack of 
jurisdiction. 
 
1 Compl. at 1. 
2 Compl. at 1, 31 ¶¶ a, b. 
3 Notice of Appeal, ex. A. 
4 Mot. at 1. 
Appeal of - )  
 )  
Aviation Training Consulting, LLC ) ASBCA No. 63634 
 )  
Under Contract No. FA8621-16-C-6339 )  
   
APPEARANCES FOR THE APPELLANT: John M. Mattox II, Esq. 
Matthew T. Schoonover, Esq. 
Matthew P. Moriarty, Esq. 
Ian P. Patterson, Esq. 
Timothy Laughlin, Esq. 
  Schoonover & Moriarty LLC 
  Olathe, KS 
 
APPEARANCES FOR THE GOVERNMENT: Caryl A. Potter III, Esq. 
    Air Force Deputy Chief Trial Attorney 
 Aaron J. Weaver, Esq. 
Geoffrey Townsend, Esq. 
    Trial Attorneys 
     

2 
 
 In general, the Board possesses jurisdiction to entertain an appeal from a 
contracting officer’s final decision upon a “claim” that has been submitted according 
to the procedures delineated in the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-
7109.  See ECC Int’l Constructors, LLC v. Sec’y of Army, 79 F.4th 1364, 1377 (Fed. 
Cir. 2023).  Those requirements include that the claim be one “relating to a contract” 
with the government.  See 41 U.S.C. §§ 7102(a), 7103(a)(1).  The phrase “relating to a 
contract” is to be read broadly.  ABB Enter. Software, Inc., f/k/a Ventyx, ASBCA 
No. 60314, 16-1 BCA ¶ 36,425 at 177,573.  To be related to a contract, a claim must 
have some relationship to the terms or performance of the government contract.  Id. 
 
 Section 3610 of the CARES Act provides (emphasis added): 
 
Notwithstanding any other provision of law, and subject to 
the availability of appropriations, funds made available to 
an agency by this Act or any other Act may be used by 
such agency to modify the terms and conditions of a 
contract, or other agreement, without consideration, to 
reimburse at the minimum applicable contract billing rates 
not to exceed an average of 40 hours per week any paid 
leave, including sick leave, a contractor provides to keep 
its employees or subcontractors in a ready state, including 
to protect the life and safety of Government and contractor 
personnel, but in no event beyond September 30, 2020.  
Such authority shall apply only to a contractor whose 
employees or subcontractors cannot perform work on a site 
that has been approved by the Federal Government, 
including a federally-owned or leased facility or site, due 
to facility closures or other restrictions, and who cannot 
telework because their job duties cannot be performed 
remotely during the public health emergency declared on 
January 31, 2020 for COVID–19 . . . . 
  
 Section 3610 provides to an agency the discretion to modify the terms and 
conditions of a government contract to reimburse the contractor for paid leave, related 
to the COVID–19 public health emergency, that the contractor provided to certain 
employees or subcontractors.  Consequently, a claim presented to a contracting officer 
by a government contractor for Section 3610 relief is a claim “relating to a contract” 
within the meaning of the CDA.  Therefore, the Board possesses jurisdiction pursuant 
to the CDA to entertain an appeal from a decision by a contracting officer denying a 
Section 3610 claim.  Cf. Todd Constr., L.P. v. United States, 656 F.3d 1306, 1308 
(Fed. Cir. 2011) (finding Board jurisdiction; negative contract performance evaluation 
“related to” contract within the meaning of the CDA).   
 

3 
 
 The government analogizes Section 3601 to Public Law 85-804, which also 
provides agencies broad discretionary authority to modify contracts with the 
government, but whose legislative history demonstrates that Congress intended to 
exclude Public Law 85-804 from the operation of the CDA, see Todd Constr., 
656 F.3d at 1313 (discussing Paragon Energy Corp. v. United States, 645 F.2d 966 
(Ct. Cl. 1981), aff’d, 230 Ct. Cl. 884 (1982)), thus depriving the Board of jurisdiction 
to entertain appeals from government decisions upon requests for relief pursuant to 
Public Law 85-804.  See Am. Gen. Trading & Contracting, WLL, ASBCA No. 56758, 
12-1 BCA ¶ 34,905 at 171,638-39.  Here, we are shown no legislative history 
indicating that Congress similarly intended to exclude Section 3610 of the CARES Act 
from the operation of the CDA.  Consequently, we find jurisdiction to entertain 
appellant’s appeal from the contracting officer’s denial of appellant’s request for 
Section 3610 relief, specifically appellant’s contention that the government’s 
“withholding of Section 3610 funds from [appellant] was deliberate and motivated by 
arbitrary and abusive considerations.”
5  Accordingly, the government’s motion to 
dismiss appellant’s request for relief pursuant to Section 3610 of the CARES Act for 
lack of jurisdiction is denied. 
 
 Dated:  January 11, 2024 
 
 
 
 
 
 
 
 
 
 
 
 
TIMOTHY P. MCILMAIL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 MICHAEL N. O’CONNELL 
Administrative Judge 
Acting Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
 
5 Compl. at 31 ¶ 234. 


4 
 
 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. 63634, Appeal of Aviation 
Training Consulting, LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  January 11, 2024 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals