ABB Enterprise Software, Inc., f/k/a Ventyx
Docket: ASBCA 60314
Decision date: 2016-06-29

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
ABB Enterprise Software, Inc., f/k/a Ventyx) 
) 
Under Contract No. NOOl 74-05-C-0038 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 60314 
Jeanne A. Anderson, Esq. 
Washington, DC 
Ronald J. Borro, Esq. 
Navy Chief Trial Attorney 
Henry Karp, Esq. 
Senior Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE PROUTY ON THE 
GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION 
Through the pending motion to dismiss in this case, we are presented with a 
question regarding the scope of our jurisdiction pursuant to the Contract Disputes Act, 
41 U.S.C. §§ 7101-7109 (CDA), to wit: what constitutes a dispute "arising under or 
related to" a CDA contract. Here, the dispute is centered upon whether the government 
violated a certain software license agreement that it obtained through a CDA contract. 
Reading the definition of "related to" broadly, as we are instructed by binding precedent, 
we hold that we possess subject matter jurisdiction to consider this appeal. 
JURISDICTIONAL FACTS 
For purposes of this motion, the pertinent facts are relatively few and undisputed. 1 
The contracts apparently at issue - Nos. NOOl 74-04-M-0272 (contract 272) and 
NOOl 74-05-C-0038 (contract 038)2 - were between the United States Navy (Navy) and 
1 As will be discussed later in this opinion, despite the government initially characterizing 
this motion as being brought pursuant to FED. R. CIV. P. 12(b)(6) (which, technically, 
does not apply to proceedings before the Board) (see gov't mot. at 8), it is actually 
better characterized as analogous to a 12(b)(l) motion because it is a challenge to our 
jurisdiction. The Board may consider evidence outside of the pleadings in a 
jurisdictional motion. See Landv. Dollar, 330 U.S. 731, 735 n.4 (1947). 
2 Appellant only filed a claim upon contract 03 8, and its complaint only refers to a 
breach of contract 038, although it unhelpfully captions its appeal as one involving 
both contracts. Because we do not possess jurisdiction over claims not first 
submitted to the contracting officer, see Reflectone, Inc. v. Dalton, 60 F.3d 1572, 
1575 (Fed. Cir. 1995) (en bane), we construe this appeal to only apply to the claim 

appellant's predecessor, Tech-Assist, Inc. (Tech-Assist) (gov't mot., UF ~~ 1, 9).3 The two 
contracts were executed on 29 September 2004 and 21 September 2005, respectively (id.). 
They were similar, with the purpose of each contract being to obtain from Tech-Assist a 
number of Electronic Shift Operations Management Systems (eSOMS) clearance and 
database software modules (id.). The contracts also expressly required Tech-Assist to 
provide to the Navy licenses to use the software (R4, tab 1 at 3-5, 15, tab 3 at 24).4 
The contracts utilized the standard Federal Acquisition Regulation (FAR) clause 
for the purchase of commercial items (here, the software), FAR 52.212-4, CONTRACT 
TERMS AND CONDITIONS-COMMERCIAL ITEMS (OCT 2003) (R4, tab 1 at 5-9, tab 3 at 
28-31). Contract 038 (but not contract 272) also included a Navy-generated addendum to 
this 
clause, which is specific for the acquisition of software. The addendum was labelled 
clause HQ C-2-0011, COMPUTER SOFTWARE AND/OR COMPUTER DATABASE(S) 
DELIVERED TO AND/OR RECEIVED FROM THE GOVERNMENT (NA VSEA) (Nov 1996). 
(R4, tab 3 at 32-33) Paragraph (c) of this addendum included a provision requiring that 
any licenses be "perpetual" or "nearly perpetual" (R4, tab 3 at 33). Paragraph (d) of the 
addendum prohibited the use of copy protection devices or systems on the software 
delivered under the contract, but noted that "[t]his does not prohibit license agreements 
from specifying the maximum amount of copies that can be made" (id.). 
On 5 October 2005, the Navy executed a license agreement (previously signed by 
Tech-Assist) for 268 copies of the eSOMS software (R4, tab 4 at 42, 50). This license 
agreement did not explicitly reference either contract, nor was it incorporated 
into either of 
the two contracts (gov't mot., UF ~~ 18, 22). Nevertheless, there is ample evidence in the 
record, including the contracting officer's final decision that is appealed in this case, that 
the license agreement was made to effect the purchase of software set forth in contract 038 
and, perhaps, other Navy contracts with Tech-Assist (see R4, tab 9 at 59 (according to a 
government official, "[a ]s part of [contract 03 8] the Government entered into a Master 
Software License Agreement"), tab 20 at 172-73). 
In 2011, Tech-Assist's successor-in-interest, Ventyx, Inc. (Ventyx), contacted the 
Navy to complain that the Navy had utilized multiple copies of the eSOMS software in 
some locations in alleged violation of the license agreement (R4, tab 7). On 19 January 
2012, the Navy responded to further correspondence from Ventyx by sending it a letter 
denying that it was in violation of the license agreement, but stating that any disputes 
would need to be resolved under the CDA (R4, tab 9). Extensive back and forth between 
the parties ensued (see R4, tabs 10-16), culminating in a 28 June 2013 letter from a Navy 
attorney to Ventyx's general counsel, suggesting that Ventyx file a CDA claim if it 
submitted upon contract 038 to the 
contracting officer. We express no opinion 
here regarding the implications, if any, of this limitation. 
3 "UF" refers to an "undisputed fact" set forth in the government's motion to dismiss, 
which we cite freely since we are ruling against the government here. 
4 Rule 4 page citations are to the consecutively-numbered pages. 
2 

wished to pursue the matter further (R4, tab 17 at 141). On 6 February 2015, Ventyx, in 
fact, filed a claim on contract 038 with the contracting officer pursuant to the CDA (R4, 
tab 17 at 90). The contracting officer denied the claim on 14 August 2015, basing her 
decision on the notion that the dispute over the license agreement was not a CDA dispute 
(R4, tab 20 at 173-74). ABB Enterprise Software, Inc. (the new name for Ventyx) filed a 
timely appeal to the Board on 6 November 2015. 
DISCUSSION 
In this motion to dismiss, the Navy argues that, because the software license 
agreement5 did not reference either of the contracts and was not incorporated into either 
contract, it did not "aris[e] under 
or relat[e] to" either contract as required for us to 
possess jurisdiction (gov't br. at 8-14). To support its argument the Navy argues that the 
"arise or relate to" language6 is of more limited scope than a plain reading of its words 
would suggest, encompassing only direct breaches of a contract (id. at 8-10), and also 
argues that there is no "nexus" between the license agreement and the contracts as is 
supposedly required by the law (id. at 10-12). The first argument is not consistent with 
binding precedent; the second is belied 
by the uncontroverted facts. 
I. The Board Possesses Jurisdiction to Consider Issues with Some Relationship 
to the Terms or Performance of a Government Contract 
The CDA confers jurisdiction upon the Board to consider appeals of decisions 
made by contracting officers "relative to a contract." 41 U.S.C. § 7105(e)(l)(A). Put 
another way, whether we possess jurisdiction over an appeal depends upon, "whether 
appellant's claim relates to a 
contract of the type covered by the CDA." Ben M White 
Co., ASBCA No. 39444, 90-3 BCA i-123,115 at 116,045. 
Similar language is used in the FAR's definition of"claim," which references 
a 
demand seeking relief "arising under or relating to the contract." See Todd 
Construction, L.P. v. United States, 656 F.3d 1306, 1311 (Fed. Cir. 2011) (quoting 
48 C.F .R. § 2.101 ). The scope of the "relating to" language in the definition of "claim" is 
dispositive to the motion before us. In Todd Construction, the Federal Circuit instructed 
that this phrase is to be read "broadly" in the context of CDA jurisdiction. 656 F .3d at 
1312. In one case quoted with approval by the Todd Construction court, the Federal 
Circuit stated that, "[i]n general, 'related to' means one thing has some ... connection to 
another thing." Todd Construction, 656 F.3d at 1312 (quoting Tyco Healthcare Group LP 
v. Ethicon Endo-Surgery, 587 F.3d 1375, 1378 (Fed. Cir. 2009)). Put yet another way, to 
be related to a contract, a claim "must have some relationship to the terms or performance 
5 Neither party has alleged that the license agreement is a CDA contract, and we need not 
decide that here. 
6 Although the CDA contains somewhat similar language, as discussed further below, 
the "arise or relate to" construction comes not from the CDA, but from the 
FAR-mandated disputes clause, FAR 52.212-4(d). 
3 

of [the] government contract." Todd Construction, 656 F.3d at 1312 (quoting Applied 
Companies v. United States, 144 F.3d 1470, 1478 (Fed. Cir. 1998)). 
The Navy urges us to adopt a more constrained reading of the "arise or relate to" 
language, constructing "arise under" as involving matters that are embraced by the 
contract's "disputes" clause, and "relating to" meaning those disputes that are a straight 
breach of the contract (see gov't br. at 9-10). This, the Navy argues, is based upon the 
history of the CDA which was intended to end a previous bifurcation of the types of 
contract disputes that went to the Boards of Contract Appeals and the Federal courts 
respectively (id.). But this more limited construction of "relating to" is supported by no law 
and is contrary to the Federal Circuit's holdings in Applied Companies and 
Todd Construction, which we discussed above. Accordingly, we reject the Navy's proposed 
construction of the CDA, which would limit our jurisdiction to only those claims involving 
breaches of the terms of the contract or matters encompassed in the disputes clause. 
II. The License Agreement was Related to the Performance of Contract 038 
Having disposed of the Navy's overly-limited definition of "related to," it is easy 
enough to dismiss the Navy's suggestion that, since the license agreement was not 
incorporated into the contract by reference, there was no breach of contract and thus no 
CDAjurisdiction over this matter (gov't br. at 10-11): no such breach is necessary for our 
jurisdiction, as discussed above. Similarly, the Navy's argument that jurisdiction is lacking 
because the law supposedly requires a "nexus" between the contract and the license 
agreement (id.), is not particularly persuasive because the Navy cites no law requiring such 
a "nexus," though, as discussed below, there is a clear nexus (as we interpret that word) 
connecting the contract and the license agreement. 
The facts, plainly recognized by the Navy contracting officer and other officials,7 and 
which the Navy's motion never confronts, demonstrate clearly that the execution of the 
license agreement was part and parcel with the performance of the contract. The contract 
was for the acquisition of the software along with an associated license agreement. Indeed, 
the terms of the contract specified limitations on the license agreement and prohibited copy 
protection devices on the software, while recognizing that a license agreement could limit the 
number of such duplicates. Thus, the license agreement - which was necessary for the 
conveyance of the software to the Navy that was the entire point of contract 03 8 - was 
required by the contract and related to the performance of that contract. Put yet another way, 
the two documents were certainly "connected." See Todd Construction, 656 F.3d at 1312 
7 We agree with the Navy that neither the contracting officer nor any other government 
official, may confer jurisdiction to the Board when there is none (see gov't br. 12). 
See, e.g., Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (subject matter 
jurisdiction may never be forfeited or waived). Nevertheless, these officials may 
certainly admit facts that have a bearing upon jurisdiction. The relevant fact here 
is that there is some evidence the license agreement at issue was entered into as 
part of the performance of contract 038. 
4 

(quoting Tyco Healthcare, 587 F.3d at 1375). Accordingly, the evidence before us supports 
a finding that the dispute over the license agreement is "related to" contract 038, and we 
possess jurisdiction to consider this appeal. 
CONCLUSION 
For the reasons set forth above, we deny the government's motion to dismiss. 
Dated: 29 June 2016 
I concur 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
K --
' , 
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. 60314, Appeal of ABB 
Enterprise Software, Inc., f/k/a Ventyx, rendered in conformance with the Board's 
Charter. 
Dated: 
5 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals