Siemens Government Technologies, Inc.
Docket: ASBCA 62806
Decision date: 2021-09-15

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE GOVERNMENT’S 
MOTION TO DISMISS FOR LACK OF JURISDICTION 
 
 Appellant, Siemens Government Technologies, Inc. (SGT), requests $2,889,715 in 
what it says are breach of contract damages, alleging both a written contract and a 
contract implied-in-fact with the U.S. Army Corps of Engineers (compl. at 3 ¶ 4, 13 ¶ 55, 
14).  The Army Corps of Engineers moves to dismiss the appeal for lack of jurisdiction, 
saying it never had a contract with SGT (gov’t mot. at 6).   
 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
  
 Among SGT’s allegations are the following: 
 
The United States Army Engineering and Support Center 
(“CEHNC”) solicited an indefinite-delivery, indefinite-
quantity (“IDIQ”) Energy Savings Performance Contract 
(“ESPC”) to improve the energy efficiency of the United 
States Air Force’s Spangdahlem Air Base (SAB) located in 
Rheinland-Pfalz, Germany.  CEHNC selected Siemens 
Government Technologies, Inc. (“SGT”) to produce plans for 
the ESPC project at SAB, to audit SAB’s energy efficiencies, 
Appeal of - )  
 )  
Siemens Government Technologies, Inc. ) ASBCA No. 62806 
 )  
Under Contract Nos. DE-AM36-09GO29041  
                                  NOO No. W912DY-15-R-ES17 
) 
) 
 
 
APPEARANCES FOR THE APPELLANT: Andy Liu, Esq.  
Robert S. Nichols, Esq.  
Sam Van Kopp, Esq.  
Haaleh Katouzian, Esq. 
    Nichols Liu LLP 
    Washington, DC  
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
  Engineer Chief Trial Attorney 
  Karen L. King Vanek, Esq.  
   Engineer Trial Attorney  
    U.S. Army Engineer District, Huntsville  

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and to assess whether selected Energy Conservation Measures 
(“ECMs”) would constitute a viable ESPC at SAB.  Over the 
course of four years, SGT did this work at the United States 
Government’s (“Government’s”) direction, incurring 
$2,889,715 in costs in the process. 
 
Construction projects at NATO facilities in Germany may be 
subject to an administrative agreement known as 
Auftragsbautengrundsatze 1975 (“ABG-75”), a component of 
the Status of Forces Agreement that allows NATO troops to 
operate on German soil.  Under Article 30 of ABG-75, the 
Government is responsible for coordinating U.S. construction 
activity with the German government.  Thus, CEHNC was 
responsible for determining, in consultation with the 
German government, whether ABG-75 applied to this ESPC 
contract. 
 
. . . 
 
However, in this case, the U.S. government 1) failed to timely 
inform SGT that ABG-75 would apply to this ESPC contract; 
2) failed to timely decide that it would not request a waiver of 
ABG-75, as authorized under the agreement; and 
3) unreasonably decided not to request a waiver of ABG- 
75.  
 
. . . 
 
SGT now seeks to recover the value of the developmental 
work it performed for the Government’s benefit and at their 
direction.  The $2,889,715 in costs claimed by SGT are a 
direct result of the Government’s breach of the covenant of 
good faith and fair dealing, its failure to cooperate and share 
superior knowledge regarding ABG-75, and the quantum 
meruit benefiting the Government. 
 
(Compl. at 1-2) (emphases added) 
 
 The contracting officer’s final decision from which SGT appeals states: 
 
This decision is in reference to the contract awarded to 
Siemens Government Technologies, Inc. (Siemens) by the 
Department of Energy (DOE) for Energy Savings 

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Performance Contracts, No. DE-AM 36-09GO29041. 
Siemens is one of the energy contractors within the DOE set 
of Multiple Award Task Order Contracts for ESPC work. 
Siemens was down-selected under the Notice of Opportunity 
No. W912DY-15-R-ES17 issued on 14 October 2015 to the 
DOE MATOC holders to develop a preliminary assessment 
(PA) and an investment grade audit (IGA) for Spangdalhem 
AFB in Germany.  Siemens was selected as the Energy 
Savings Contractor (ESCO) under that NOO.  No task order 
was awarded to Siemens at the end of that process. 
 
(R4, tab 3 at 14) 
 
DECISION 
 
 Pursuant to 41 U.S.C. § 7105(e)(1)(A) (emphasis added), the Board “has 
jurisdiction to decide any appeal from a decision of a contracting officer of the 
Department of Defense, the Department of the Army, the Department of the Navy, the 
Department of the Air Force, or the National Aeronautics and Space Administration 
relative to a contract made by that department or agency.”  Jurisdiction under this 
provision requires no more than a non-frivolous allegation of a contract with the 
government.  Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1353 (Fed. Cir. 2011).  
Thus, to establish Board jurisdiction under this provision, an appellant need only allege 
the existence of a contract.  Elizabeth Constr. Co., ASBCA No. 60723, 17-1 BCA 
¶ 36,839 at 179,519.  This bar is low.  Premysler v. United States, 135 Fed. Cl. 657, 660 
(2018).  
 
 Based upon the record material quoted above, we conclude that SGT has set forth 
a non-frivolous allegation of a contract with the government, triggering our jurisdiction 
under 41 U.S.C. § 7105(e)(1)(A).  Cf. Elizabeth Constr. Co., 17-1 BCA ¶ 36,839 
at 179,519. (granting motion to dismiss for lack of jurisdiction; appellant “[did] not allege 
that a contract existed between it and the government”)”; Tele-Consultants, Inc., ASBCA 
No. 58129, 13 BCA ¶ 35,234 at 172,994 (“Given [appellant’s] contention here that it did 
indeed directly enter into an implied-in-fact contract with the government respecting the 
services at issue, we conclude we possess jurisdiction over this claim”).  Whether SGT 
had a contract with the Corps of Engineers is a merits question for another day.  See 
Engage Learning, 660 F.3d at 1355. 
  

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CONCLUSION 
 
 The government’s motion to dismiss for lack of jurisdiction is denied. 
 
 Dated:  September 15, 2021 
 
 
 
 
 
 
 
 
 
 
 
TIMOTHY P. MCILMAIL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
RICHARD SHACKELFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 MARK A. MELNICK 
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. 62806, Appeal of Siemens 
Government Technologies, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  September 16, 2021   
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals