CiyaSoft Corporation
Docket: ASBCA 59519, ASBCA 59913
Decision date: 2017-04-06

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of -- ) 
) 
CiyaSoft Corporation ) 
) 
Under Contract No. W91B4L-10-P-1475 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 59519, 59913 
Mr. Hamid Daroui 
Corporation Officer 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
CPT William T. Wicks, JA 
Evan C. Williams, Esq. 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE WILSON 
ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT 
The government moved for summary judgment contending that CiyaSoft 
Corporation (CiyaSoft or appellant) cannot satisfy the elements required to 
establish that 
the Army breached the above-captioned contract. Appellant counters that there are 
genuine issues of material fact in dispute that preclude summary judgment. 
ST A TEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
1. On 19 August 2010, the Army entered into a contract with CiyaSoft for the 
purchase of 20 "Single User Bi-Directional English/Dari Software Licenses" with a 
one-year period of support and maintenance. This software was to be delivered to Kandahar 
Airfield, Afghanistan. The contract included FAR 52.212-4, CONTRACT TERMS AND 
CONDITIONS-COMMERCIAL ITEMS (JUN 201 O); and DFARS 252.212- 7001, CONTRACT 
TERMS AND CONDITIONS REQUIRED TO IMPLEMENT ST A TUTES OR EXECUTIVE ORDERS 
APPLICABLE TO DEFENSE ACQUISITIONS OF COMMERCIAL ITEMS (JUN 2010) clauses. 
(R4, tab 1) 
2. On 10 September 2010, appellant shipped to the contracting officer (CO), inter 
alia, 20 compact disc (CD) cases, 20 keyboard labels, help guides, license agreements, 
and 20 unique product identifications (IDs). The accompanying letter read as follows: 
The last four character[ s] of each product ID, which is 
unique, is provided separately along with license agreement 
inside each CD case and may be used instead of the full 

product ID when updating us with the names or initials of 
those activations that di<l: not go through registration after 
installation. CD/product ID assignment information should 
be mailed or emailed to CiyaSoft MT technical support (See 
the license agreement for more details.) 
(App. supp. R4 1, tab 2) 
3. On 9 October 2010, appellant submitted an invoice 
to the CO for payment (R4, 
tab 6). By letter dated 14 October 2010, the invoice was certified for payment, indicating 
that the goods for which payment was to be made were received and accepted by the 
government (R4, tab 7). 
4. The record shows that as early as December of 2010, appellant began noticing 
some duplicate registrations and requested that the government provide a list of names or 
initials of those users using the software (app. supp. R4, tab 9). The parties exchanged 
correspondence on this subject throughout the next two years and on 19 November 2013, 
appellant sent a letter to the government advising that there may have been violations of 
the software licenses delivered under the contract. Appellant stated: 
(R4, tab 9) 
The license clearly specifies the limits of the license which 
was a condition of the sale of the product to the Army. While 
our Company changed the software as an accommodation to 
the Army and to comply with contract requirements so that 
registration was not a requirement for activation, we did not 
waive the license requirement of single use[.] 
5. The government replied, by email dated 17 December 2013, informing 
appellant that it examined its systems and could not identify any systems using the 
software and considered the matter closed (R4, tab 11 at 2). There were several other 
exchanges between the parties (R4, tabs 12-14), culminating on 15 April 2014 with 
appellant filing a certified claim 2 with the CO (R4, tab 15). 
1 The Board designates appellant's submittal of documents with its complaint dated 
24 October 2014 and 17 March 2017 supplement collectively as appellant's Rule 4 
supplement. 
2 The 15 April 2014 claim certification contained in the Rule 4 file was not signed by 
appellant. However, in its notice of appeal, appellant provided a signed certification 
on 26 August 2014. The CO issued a final decision on the properly certified claim 
on 30 March 2015. Appellant filed a timely protective appeal, by letter dated 6 April 
2015, which was docketed as ASBCA No. 59913. (Bd. corr. file) 
2 

6. By decision dated 2 June 2014, the CO denied the claim (R4, tab 16). On 
26 August 2014, appellant filed an appeal with the Board, which was docketed as 
ASBCA No. 59519. 
DECISION 
The government contends that appellant cannot satisfy the elements required to 
establish that the Army breached the contract by causing unauthorized copies of its 
software to be made or the alleged failure to secure and protect appellant's software that 
was delivered under the contract. Specifically, the end user license agreements (EULAs) 
were not incorporated into the contract (explicitly, implicitly, or by installation by the end 
users). Further, any military or contractor personnel who willfully reproduced the 
software for their own profit may be potentially individually directly liable; but not the 
government. (Gov't mot. at 10-17) Finally, the government argues that the general 
reference to 20 software licenses (as well as Army regulations) did not create a duty of 
care, or a fiduciary duty, on behalf of the Army to safeguard appellant's software (gov't 
mot. at 20-25). Appellant counters, inter alia, that there is a factual dispute regarding 
whether the EULA was part of the contract ( app. reply at 4-15). 
Summary judgment is appropriate when there is no genuine issue of material fact 
and the movant is entitled to judgment as a matter of law. Proveris Scientific Corp. v. 
Innovasystems, Inc., 739 F.3d 1367, 1371 (Fed. Cir. 2014); Mingus Constructors, Inc. v. 
United States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987). A material fact is one that may 
affect the outcome of the decision. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 
248-49 
(1986). The moving party bears the burden of establishing the absence of any 
genuine issue of material fact, and all significant doubt over factual issues must be 
resolved in favor of the party opposing summary judgment. Celotex Corp. v. Catrett, 4 77 
U.S. 317, 322 (1986). We draw all justifiable inferences in favor of the nonmoving party. 
C!2, Inc., ASBCA Nos. 56257, 56337, 11-2 BCA ii 34,823 at 171,353. 
We have carefully considered the Army's allegations and the underlying contract 
in question but conclude that there are genuine issues of material fact that preclude 
summary judgment. Specifically, there is a genuine issue as to circumstances 
surrounding the existence of and details regarding use of the alleged software 
licenses/EULAs that were contracted for and delivered to the Army and discussed by the 
parties for two years (SOF ii 4 ). These issues are fact intensive and, based on the current 
record, are not ripe to be resolved by summary judgment. Cooley Constructors, Inc., 
ASBCA No. 57404, 11-2 BCA ii 34,855 at 171,457. 
3 

The motion is denied. 
Dated: 6 April 2017 
I concur 
MARK N. STEMPLER' I 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
CONCLUSION 
OWEN C. WILSON 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
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 Nos. 59519, 59913, Appeals of 
CiyaSoft Corporation, rendered in conformance with the Board's Charter. 
Dated: 
4 
JEFFREYD. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals