ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of-- ) 
) 
Protecting the Homeland Innovations, LLC ) 
) 
Under Contract No. FQ-12187 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE AUTHORITY: 
ASBCA No. 58366 
Peter F. Carr II, Esq. 
Eckert 
Seamans Cherin & Mellott, LLC 
Boston, MA 
Kathryn Pett, Esq. 
General Counsel 
Bruce P. Heppen, Esq. 
Deputy General Counsel 
Donald A. Laffert, Esq. 
Associate General Counsel 
Washington Metropolitan Area 
Transit Authority 
OPINION BY ADMINISTRATIVE JUDGE HARTMAN 
ON RESPONDENT'S MOTIONS TO DISMISS AND TO QUASH 
Respondent, the Washington Metropolitan Area Transit Authority (WMA T A), 
moves to dismiss Counts III ("Quantum Meruit/Unjust Enrichment") and IV 
("Promissory Estoppel") of the complaint filed by appellant, Protecting the Homeland 
Innovations, LLC (PHI). WMA TA asserts we lack jurisdiction to entertain those counts 
because they seek recovery, respectively, based upon theories of unjust enrichment and 
promissory estoppel when it is immune from "quasi-contractual claims." (Motion to 
Dismiss at 1-2) PHI contends Count III is based upon a 
theory of "implied contract," 
WMA T 
A has waived its sovereign immunity with respect to its "contracts," and we 
therefore possess jurisdiction to entertain Count III. PHI, however, has not 
filed any 
response to WMATA's motion to dismiss Count IV. (Appellant's Opposition to 
Respondent's Motion to Dismiss Count Ill ofthe Complaint at 1-4) 
WMA T A also moves to quash a request for admissions served by PHI. WMA T 
A 
contends: that this appeal is governed by the "ASBCA's Rules for cases not under the 
Contracts Disputes Act" (CDA), approved 15 July 1963, and revised 1 May 1969, and 
1 September 1973; those rules require a party to apply to the Board for permission to 
serve a request for admission of specified facts; and such applications shall be reviewed 
and approved only to the extent and on such terms as the Board in its discretion considers 
to be consistent with the objective of securing just and inexpensive determination of 
appeals without unnecessary delay (Reply to Appellant's Opposition to WMATA's 

Motion to Quash at 1-2). PHI responds it fails to understand how an unpublished 
Memorandum ofUnderstanding between the Board and WMATA controls and precludes 
conduct of routine discovery when (a) the Board has published rules of procedure 
addressing discovery consistent with modem trial practice, (b) a recent Board decision 
held there was no distinction between WMA T A and CDA contract claims, and (c) its 
request for admissions will assist in narrowing the issues in dispute, thereby facilitating 
prompt resolution ofthe appeal (Appellant's Sur-Reply to WMATA's Opposition to 
Motion to Quash at 1-2). 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTIONS 
WMATA is an interstate compact agency, and an agency and instrumentality of 
the District of Columbia, State ofMaryland, and Commonwealth of Virginia (Complaint 
(Compl.) ,-r 2, Answer ,-r 2). WMA TA operates public transit systems that provide local 
and regional transit service to the Washington, DC metropolitan area (Compl. ,-r 5, 
Answer ,-r 5). 
On 7 May 2012, WMATA issued Request for Proposal No. RFP-FQ-12187/RK 
(RFP) to provide "Terrorism Recognition Training" services for the Metro Transit Police 
Department's sworn personnel (Compl. ,-r 9, Answer ,-r 9). Two days later, on 9 May 2012, 
PHI submitted a proposal in response to the RFP in the amount of$1,117,500, which 
included a fee or profit of$432,914, and WMATA awarded service Contract No. FQ-
12187 to PHI on 23 May 2012 (Compl. ,-r,-r 17, 18, 19, 27, Answer,-r,-r 17, 18, 19, 27). 
PHI commenced performance under the contract and taught its first class to 
WMATA personnel on 29 May 2012. PHI provided additional training to WMATA, 
submitted invoices for all training provided, and was paid approximately $514,973 by 
WMA T A. PHI provided all services WMA T A requested by the 30 June 2012 deadline 
and granted WMA T A a license to use its proprietary training program materials and 
techniques, fully completing its scope of work under the contract. (Compl. ,-r,-r 38, 39, 40, 
42, 43, 
44, 61, Answer ,-r,-r 38, 39, 40, 42, 43, 44) 
On 28 July 2012, after conducting an audit, WMATA informed PHI that 
WMA T A's auditors had prepared a report stating that the total price to be paid to PHI 
should be $514,973, an amount more than $600,000 less than the sum PHI set forth in its 
proposal (Compl. ,-r,-r 17, 18, 19, 52, Answer,-r,-r 17, 18, 19, 52). On 3 August 2012, PHI 
submitted a certified claim to WMATA's contracting officer (CO), contending WMATA 
"breached the Contract by failing or refusing to pay PHI the agreed upon firm fixed price 
Contract amount due and owing, despite PHI's full and complete performance under the 
Contract" (Compl. ,-r,-r 55, 60, Answer ,-r 55). 
On 24 October 2012, PHI filed a notice of appeal with this Board based on lack of 
issuance of a CO's decision on its claim (Com pl. ,-r,-r 57, 58, Answer ,-r 57). About one 
month later, PHI filed a five-count complaint with this Board. Count III of the complaint 
2 

asserted "PHI rendered valuable services and licensed valuable proprietary intellectual 
property to WMATA," 
"expected to be paid for its services and property," WMATA 
retained the benefit of the services and property rendered without full payment to PHI, 
WMATA thus was "unjustly enriched" to the detriment ofPHI, and PHI is entitled to 
"payment from WMA T 
A for the benefits PHI bestowed upon WMA T 
A and for which 
WMATA retained without payment to PHI." (Compl. ~~ 72-78) Count IV ofPHI's 
complaint asserted "WMA TA promised to pay PHI $1,117,500 to induce PHI to render 
valuable services to and for the benefit of WMA T A," PHI reasonably relied upon that 
promise to its detriment, and "WMA TA is estopped from refusing to comply with the 
promise to pay PHI" (Compl. ~~ 79-85). 
DECISION 
I. Motion to Dismiss 
The Constitution, U.S. CONST. art. I, § 8, cl. 17, grants Congress the power "[t]o 
exercise exclusive Legislation in all Cases whatsoever, over [the District of Columbia]." 
Pursuant to that power, in 1966, Congress "adopted and enacted" the WMA T 
A Compact, 
Pub. L. No. 89-774, 80 Stat. 1324 (1966), and as required by U.S. CONST. art. I,§ 10, 
cl. 3 ("[n]o State shall, without the Consent of Congress ... enter into any Agreement or 
Compact with another State"), consented to the State of Maryland and Commonwealth of 
Virginia entering into the Compact. The Compact created WMA T A to operate a mass 
transit system in the District, Northern Virginia and two Maryland counties to deal with 
the alleviation of present and future traffic congestion in the Washington, DC 
metropolitan area. See Pub. L. No. 89-774, 80 Stat. 1324; Dant v. District of Columbia, 
829 F.2d 69, 71 (D.C. Cir. 1987); Morris v. WMATA, 781 F.2d 218,219 (D.C. Cir. 1986). 
As sovereign, the United States enjoys immunity from suit without its consent and 
the terms of its consent to be sued in any court define that court's jurisdiction to entertain 
the suit. Hercules, Inc. v. United States, 516 U.S. 417, 421 (1996); United States v. 
Testan, 424 U.S. 392, 399 (1976). Congress may also endow a government agency or 
instrumentality with governmental immunity from suit. E.g., Morris, 781 F.2d at 222. 
Maryland and Virginia both possess immunity from suit pursuant to the eleventh 
amendment of the Constitution 1 and can confer that immunity upon instrumentalities of 
1 While the eleventh amendment, U.S. CONST. amend. XI ("[t]he judicial power of the United 
States shall not be construed to extend to any suit in law or equity, commenced or 
prosecuted against one of the United States by Citizens of another State, or by Citizens 
or Subjects of any Foreign State"), expressly refers only to suits against a state by 
citizens of another state, the Supreme Court "has consistently held that an 
unconsenting State is immune from suits brought in federal courts by her own citizens 
as well as by citizens of another State." Edelman v. Jordan, 415 U.S. 651,662-63 
(1974). 
3 

the state. Id. at 220; Lizzi v. WMATA, 255 F.3d 128, 132 (4th Cir. 2001), cert. denied, 
534 U.S. 1081 (2002). In executing the WMATA Compact, the signatories each 
conferred their respective sovereign immunity upon WMATA. Lizzi, 255 F.3d at 132; 
Dant, 829 F.2d at 74; Morris, 781 F.2d at 219; see Hess v. Port Auth. Trans-Hudson 
Corp., 513 U.S. 30, 49-50 (1994). In section 80 of the Compact, 80 Stat. 1350, they 
consented only to suits against WMATA "for its contracts and for its torts ... committed in 
the conduct of any proprietary function, in accordance with the law of the applicable 
signatory." Lizzi, 255 F.3d at 133; Morris, 781 F.2d at 220-22. 
The Supreme Court has held repeatedly that a sovereign's waiver of immunity of 
suits founded on "contract" does not extend to claims founded on contracts "implied in 
law." E.g., Hercules, Inc., 516 U.S. at 423; United States v. Mitchell, 463 U.S. 206,218 
(1983); Merritt v. United States, 267 U.S. 338, 341 (1925). As Chief Justice Rehnquist 
explained in Hercules: 
The distinction between "implied in fact" and "implied in 
law," and the consequent limitation, is well established .... An 
agreement implied in fact is "founded upon a meeting of minds, 
which, although not embodied in an express contract, is inferred, 
as a fact, from conduct of the parties showing, in the light of the 
surrounding circumstances, their tacit understanding." By 
contrast, an agreement 
implied in law is a "fiction of law" where 
"a promise is imputed to perform a legal duty, as to repay money 
obtained by fraud or duress." 
ld. at 423-24 (Citations omitted). 
In Count IV of the complaint, PHI asserts WMA T A promised PHI "$1, 117,500 to 
induce [it] to render valuable services to and for the benefit ofWMATA," PHI relied 
reasonably on the promise made and rendered valuable services, WMA T 
A has failed to 
pay PHI the sum promised, and "WMA TA is estopped from refusing to comply with the 
promise to pay PHI" (Compl. ~~ 80-85). PHI therefore is relying on promissory estoppel 
to create its right of recovery. See Algonac Mfg. Co. v. United States, 428 F.2d 1241, 
1256 (Ct. Cl. 1970); Biagioli v. United States, 2 Cl. Ct. 304, 307-08 (1983). Obligations 
based upon promissory estoppel are founded on contracts implied in law and WMATA's 
sovereign immunity has not been waived with respect to contracts "implied in law." See 
Hercules, 516 U.S. at 423; Lizzi, 255 F.3d at 133; Morris, 781 F.2d at 220-22. We grant 
WMATA's motion to dismiss Count IV ofthe complaint for lack of jurisdiction. 
In Count III of the complaint, PHI asserts it "rendered valuable services and 
licensed valuable proprietary intellectual property to WMA T 
A arising under or related to 
the Contract" it was awarded by WMATA, "WMATA retained the benefit ofthe services 
and property rendered by PHI without full payment to PHI," and PHI is entitled to full 
payment from WMATA (Compl. ~~ 73, 76, 78). While PHI asserts WMATA was 
4 

"unjustly enriched" by retention of the benefit of the services and property PHI rendered 
(Com pl. ~ 77), it cites a "contract" with WMA TA as the basis for its claim of recovery 
(Compl. ~~ 27, 72, 73). "[T]he law is clear that, [for us] to have jurisdiction, a valid 
contract must only be pleaded, not ultimately proven." Total Medical Mgmt., Inc. v. 
United States, 104 F.3d 1314, 1319 (Fed. Cir. 1997), cert. denied, 522 U.S. 857 (1997); 
accord Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1353 (Fed. Cir. 2011); Lewis v. 
United States, 70 F.3d 597, 602 (Fed. Cir. 1995); Gould, Inc. v. United States, 67 F.3d 
925, 929-30 (Fed. Cir. 1995). Thus, on its face, complaint Count III is founded on an 
express or implied in fact contract over which WMATA's sovereign immunity has been 
waived. See, e.g., Lizzi, 255 F.3d at 133; Total Medical Mgmt., 104 F.3d at 1319; Morris, 
781 F .2d at 220-22. 
While WMA T 
A asserts in its Reply to PHI's Opposition to WMA T A's Motion to 
Dismiss (WMATA Reply) that it paid the value ofthe services rendered ($514,973.31) 
and PHI's claim is seeking "excessive profit of$414,559 on direct costs of$702,941," 
PHI 
has made a non-frivolous assertion of a contract to perform services. WMA T A does 
not dispute that it solicited proposals to perform, and awarded a contract to PHI, for the 
services PHI rendered. (Compl. ~~ 9, 17, 27, Answer~~ 9, 17, 27) Its contentions that 
PHI's alleged contract is not for a "fixed-price" and PHI has been paid for services it 
rendered (WMATA Reply at 1; Answer~~ 18, 25, 28, 34, 35, 41, 52) are a challenge to 
the ''truth" of the allegations that a "fixed-price" contract was entered into for a sum 
greater than paid, rather than to the "sufficiency" of the allegation of a "contract." See, 
e.g., Dongbuk R&U Eng'g Co., Ltd., ASBCA No. 58300, slip op. at 8 (13 August 2013); 
Tele-Consultants, Inc., ASBCA No. 58129, 13 BCA ~ 35,234 at 172,993. We may not 
resolve a challenge such as WMATA's under a motion to dismiss for lack of jurisdiction. 
Rather, we must do so under a motion for failure to "state a claim [on] which relief [can] 
be granted." E.g., Total Medical Mgmt., 104 F.3d at 1319. Resolution ofthe latter 
requires we "assume jurisdiction" to decide whether the complaint contains allegations 
that, if proven, would be sufficient to entitle a party to relief, as well as to "determine 
issues of fact arising in the controversy." See Gould, Inc., 67 F.3d at 929-30; Spruill v. 
MSPB, 978 F.2d 679,688 (Fed. Cir. 1992); Do-Well Mach. Shop, Inc. v. United States, 
870 F.2d 637, 639-40 (Fed. Cir. 1989). 
In KiSKA Constr. Corp.-USA & Kajima Eng'g & Constr., Inc., J V., ASBCA 
Nos. 54163, 54614, 09-1 BCA ~ 34,089, aff'd, 736 F. Supp. 2d 171, 186 (D.D.C. 2010), 
aff'd, 443 F. App'x 561 (D.C. Cir. 2011), WMATA contended this Board lacked 
jurisdiction to entertain a claim by a contractor seeking payment of the full amount due 
under a contract. This Board held otherwise. /d. at 168,562; cf Cubic Transportation 
Systems, Inc., ASBCA No. 57770, 12-2 BCA ~ 35,063 at 172,234. We adhere to prior 
precedent and deny WMA T A's motion to dismiss Count III for lack of jurisdiction. 
5 

II. Motion to Quash 
While this Board possesses authority to resolve most appeals before it pursuant to 
statutory authority, see 41 U.S.C. § 7105(e)(l)(A) (Contract Disputes Act), it possesses 
authority to resolve appeals involving WMA T A contracts only pursuant to the terms of 
those contracts and a January 2001 Memorandum of Understanding Between the Armed 
Services Board of Contract Appeals and the Washington Metropolitan Area Transit 
Authority and an October 2007 Extension of Memorandum. See Cubic Transp., 12-2 
BCA ~ 35,063 at 172,234; KiSKA Constr., 09-1 BCA ~ 34,089 at 168,562; see also 
KiSKA Constr. Corp., 736 F. Supp. 2d at 183-84; Breda Transp., Inc. v. WMATA, 164 
F. Supp. 2d 677,680 (D. Md. 2001) (scope of ASBCA'sjurisdiction is "essentially a 
question of contract interpretation"). As the Supreme Court explained in United States v. 
Utah Constr. & Mining Co., 384 U.S. 394, 404 n.6 (1966), parties are free to contract for 
dispute resolution procedures and are bound to exhaust such procedures unless 
"inadequate or unavailable." Accord United States v. Grace & Sons, Inc., 384 U.S. 424, 
430 (1966). Generally, the Disputes Clause set forth in a WMATA contract provides a 
contractor must submit its claims to a CO who, on request, issues a written Final 
Decision, that CO decision is reviewable by WMATA's Board of Directors or its 
authorized representative (currently the Armed Services Board of Contract Appeals), and 
the representative's decision (if adopted by WMATA's Board ofDirectors) is final and 
binding on the parties unless under section 81 ofthe WMATA Compact 2 a court applying 
the review standard set forth in the Clause, which essentially is the standard of review 
contained in the Wunderlich Act, Pub. L. No. 83-356, 68 Stat. 81 (1954), which was 
repealed as part of the recodification of Title 41, Pub. L. No. 111-3 50, 124 Stat. 3677, 
3859 (4 Jan. 2011), finds that decision to be fraudulent or not supported by substantial 
evidence. Seal & Co., Inc. v. A.S. McGaughan Co., 907 F.2d 450,452 (4th Cir. 1990); 
Granite-Groves v. WMATA, 845 F.2d 330, 333 (D.C. Cir. 1988); KiSKA Constr., 736 
F. Supp. 2d at 183-84; Breda Transp., 164 F. Supp. 2d at 680 & n.3; Expressway Constr., 
Inc. v. WMATA, 676 F. Supp. 16, 18 (D.D.C. 1987). 
The Memorandum of Understanding between this Board and WMATA provides in 
relevant part: 
WHEREAS, beginning in 1971, the Corps of Engineers 
Board of Contract Appeals (ENG BCA), pursuant to a series of 
agreements, and resolution of the Authority's Board of Directors, 
served as the Board of Contract Appeals for appeals under the 
"Disputes" articles of WMA T A contracts; and 
2Section 81 ofthe WMATA Compact, 80 Stat. 1350, states: The United States District 
Courts shall have original jurisdiction, concurrent with the Courts of Maryland and 
Virginia, of all actions brought by or against [WMA T A] and to enforce subpoenas 
issued under [this compact]. Any such action initiated in a State Court shall be 
removable to the appropriate United States District Court. 
6 

WHEREAS, on July 12,2000, the ENG BCA was merged 
into the ASBCA; and 
WHEREAS, both the Authority and the ASBCA are 
willing to continue the relationship 
whereby the ASBCA will 
adjudicate disputes under 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. 
2. The ASBCA shall use its best efforts to resolve all 
appeals under Authority contracts within the time limits stipulated 
in its rules. 
3. Unless otherwise agreed by all parties and the ASBCA, 
proceedings involving appeals under Authority contracts shall be 
conducted in the Washington metropolitan area in conformance 
with the ASBCA' s rules for cases not under the Contracts 
Disputes Act, approved July 15, 1963, revised May 1, 1969, and 
September 1, 1973, as they may hereafter be amended by the 
ASBCA. 
4. Opinions rendered by the ASBCA involving appeals 
under Authority contracts shall be accepted by the Authority as 
final and conclusive unless in an action in a court of competent 
jurisdiction, the court determines the opinion to have been 
fraudulent, or capricious, or arbitrary, or so grossly erroneous as 
necessarily to imply bad faith, or not supported by substantial 
evidence, or erroneous as a matter of law. 
Rule 15 of the ASBCA' s rules for cases not under the Contracts Disputes Act, last 
amended 1 September 1973, provides in pertinent part: 
Interrogatories to Parties; Inspection of Documents; 
Admission of Facts- Under appropriate circumstances, but not as 
a matter of course, the Board will entertain applications for 
permission to serve written interrogatories upon the opposing 
7 

party, applications for an order to produce and permit the 
inspection of designated documents, and applications for 
permission to serve upon the opposing party a request for the 
admission of specified facts. Such applications shall be reviewed 
and approved only to the extent and upon such terms as the Board 
in its discretion considers to be consistent with the objective of 
securing just and inexpensive determination of appeals without 
unnecessary delay, and essential to the proper pursuit of that 
objective in the particular case. 
Since this Board possesses authority to resolve WMA T A appeals pursuant to the 
terms ofWMATA contracts and the 2001 WMATA Memorandum ofUnderstanding 
with this Board, which states, unless otherwise agreed, proceedings involving appeals 
under WMA T A contracts shall be conducted in conformance with the ASBCA' s rules for 
cases not under the Contracts Disputes Act, approved July 1963 and last amended 
September 1973, the rules for cases not under the CDA presently govern this and other 
WMA T A appeals before the Board. While PHI suggests our decision in Cubic Transp., 
12-2 BCA ,-r 35,063, held that a distinction no longer exists between CDA and WMATA 
appeals, our holding in that appeal in not as broad as PHI suggests. In Cubic, we merely 
held that WMATA's revision ofits disputes article to include the words "or related to" 
incorporated into its contracts language 
similar to that utilized in the CDA to provide 
authority for us to resolve "breach" of contract claims in CDA appeals and similarly 
authorized us to resolve contract breach claims in WMA T A appeals. !d. at 172,234. As 
we do here, we relied in Cubic upon the terms of the parties' contract, not the CDA, to 
determine our authority. In fact, we expressly stated in Cubic that our ruling "does not 
mean that the CDA applies to WMATA's contracts." !d. Accordingly, current appeals 
under WMA T A contracts shall be conducted in conformance with the ASBCA' s rules for 
cases not under the CDA. 
In its request for admissions served previously, PHI asked WMA T 
A to make 22 
admissions concerning its RFP, PHI's proposal, WMATA's "contract" with PHI, PHI's 
completion ofWMATA contract work, WMATA's Office oflnspector General audit and 
the basis for WMA T A asserting that there was a 1 0% maximum limit on contract profit. 
All of the requests set forth are relevant to whether PHI was paid in full in accordance 
with its WMA T A contract. At this juncture, we have one party (PHI) contending that it 
possessed a "fixed-price" contract it fully performed without complete payment and 
another (WMA TA) contending PHI did not possess such a contract. We do not know the 
basis for either party's assertions because all that currently is before us is a complaint, 
answer and motion to dismiss two counts for lack of jurisdiction. If WMA T A has a legal 
basis to move to dismiss the appeal for failure to state a claim or for summary judgment 
that will show there is no reason to address the issues for which discovery is sought, it is 
free to file such a motion and seek an order limiting or suspending discovery. Since it 
has not done so to date, there is no basis for us to conclude that the admissions PHI seeks 
will not further a just and inexpensive determination of the appeal without unnecessary 
8 

delay. We treat PHI's filings in opposition to WMATA's motion to quash as an 
"application" for service of the admissions under the non-CDA rules, grant such 
application, and order WMA T A to respond to PHI's requests on or before 15 October 
2013. 
CONCLUSION 
WMATA's motion to dismiss for lack of jurisdiction is granted in part. Count IV 
ofthe appeal is dismissed for lack of jurisdiction. The remainder ofWMATA's motion 
to dismiss for lack of jurisdiction is denied. 
WMATA's motion to quash is granted in part. WMATA's motion is correct that 
discovery here is governed by the ASBCA's rules for appeals not filed under the CDA, a 
party must obtain approval of an application to serve requests for admission under those 
rules, no such approval had been obtained by PHI to date, and therefore WMA T A had no 
obligation to respond to the requests PHI served to date. We, however, treat PHI's filings 
in response to WMATA's motion to quash as an application to serve its request for 22 
admissions served previously and grant the application. WMATA's response to PHI's 
admission requests shall be due on or before 15 October 2013. 
Dated: 26 August 2013 
I concur 
~¢#~ MARK N. STEMPLER ' 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
9 
I~J-;1~ 
TERRENCE S. HARTMAN 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
Administrative 
Acting Vice 
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. 58366, Appeal ofProtecting 
the Homeland Innovations, LLC, rendered in conformance with the Board's Charter. 
Dated: 
10 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals