ARMED SERVICES BOARD OF CONTRACT APPEALS 
OPINION BY ADMINISTRATIVE JUDGE WILSON  
ON THE GOVERNMENT’S MOTION TO DISMISS FOR LACK OF 
JUSRISDICTION AND APPELLANT’S MOTION FOR SUMMARY JUDGMENT  
 
 This appeal involves a contract for the renovation of Building 615, Army Band 
Hall at Joint Base Fort Sam Houston in San Antonio, Texas.  The United States Army 
Corps of Engineers (USACE) moves to dismiss the appeal for lack of jurisdiction on 
the grounds that the appellant, Frontline Support Solutions, LLC (Frontline), is a 
subcontractor and thus lacks privity of contract with USACE.  Frontline opposes the 
motion and cross-moves for summary judgment, asserting that USACE’s alleged 
failure to terminate its contract with the prime contractor despite documented evidence 
of fraud and USACE’s continued payments to the prime contractor violated numerous 
Federal Acquisition Regulation (FAR) provisions and directly harmed Frontline.  For 
the reasons discussed below, we grant the government’s motion.
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1 Frontline also filed several subsequent motions, including a request for 
reconsideration of the Board’s March 11, 2025 Order to accept USACE’s 
sur-reply brief.  In light of the decision in this appeal, all other motions have 
been rendered moot. 
Appeal of - )  
 )  
Frontline Support Solutions, LLC ) ASBCA No. 64022 
 )  
Under Contract No. W9126G-19-C-0163 )  
   
APPEARANCE FOR THE APPELLANT: Mr. Bronson Lerma 
    President 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Lisa M. Haywood, Esq. 
Elliott A. Stanley, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, Fort Worth 
     

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STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 
 
1. In August 2019, USACE issued Solicitation No. W9126G-19-B-3286 for the 
renovation of Building 615, Army Band Hall at Joint Base Fort Sam Houston in San 
Antonio, Texas (R4, tab 1 at 1).2 
 
2. The solicitation provided that a “Bid Bond is required [in accordance with] 
IAW FAR 52.228-1.  Additionally, the winning contractor will be required to provide 
Insurance and Performance & Payment Bonds IAW FAR 52.228-5 & 52.228-15, 
respectively.”  (R4, tab 1 at 6, tab 9 at 3) 
 
3. On September 30, 2019, USACE awarded design-build Contract No. W9126G-
19-C-0163 (Contract) to ATC-Davila, Ltd. Company (ATC-D) for the renovation of 
Building 615 with an initial price of $6,975,281.50 (R4, tab 10 at 6-7).  The Contract 
incorporated by reference the Disputes Clause found at FAR 52.233-1 (MAY 2014), 
which addresses only “contractor” submission of claims to the contracting officer 
(CO) (id. at 18).  The Contract did not contain any provision allowing subcontractors 
to submit claims directly to the CO.  Additionally, neither the Contract as awarded, nor 
any subsequent modifications, authorized ATC-D to act as an agent of USACE while 
working on the Building 615 project. 
 
4. On October 10, 2019, ATC-D secured a $6,975,281.50 performance bond and a 
$6,975,281.50 payment bond with Berkley Insurance Company (Berkley or surety) 
(R4, tab 27 at 6-9). 
 
5. On September 19, 2022, ATC-D entered into a $700,000 subcontractor 
agreement (Subcontract) with Frontline to perform demolition work for the 
Building 615 project.  ATC-D and Frontline were the only parties to this agreement.  
(R4, tab 71 at 1)  The Subcontract included the following language: 
 
Article 18: Changes, Claims and Delays 
. . . .18.5 Delays 
 
 . . . . 
 
(C)  Subcontractor shall present to Contractor any permitted claim for 
extension of time, extra work, delay or disruption, or breach of contract, 
together with full documentation, within sufficient time for Contractor to 
evaluate and determine whether to assert such a claim against [USACE] . . 
 
2 All references to specific page numbers in the government’s Rule 4 file are to the 
Bates-labeled pagination.  Any prefixes and leading zeroes have been removed. 

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. Subcontractor agrees to be bound to Contractor to the same extent 
Contractor is bound to [USACE] in the final determination relating to such 
claim, whether administrative, judicial, or otherwise, and whether or not 
Subcontractor is a party to such proceeding.  Contractor shall not be 
obligated to appeal from any such determination. 
 
(R4, tab 71 at 9)  Thus, pursuant to the Subcontract, Frontline was not authorized to 
seek payment of any sort directly from USACE. 
 
6. In addition, Article 30 of the Subcontract provides:   
The relationship of Subcontractor to Contractor is that of 
an Independent Contractor.  Nothing in this Agreement 
shall be deemed or construed to create any fiduciary or 
special relationship between the parties.  This Agreement 
shall not be deemed or construed to create any sort or kind 
of partnership, agency, or joint venture relationship 
between the parties.   
 
(R4, tab 71 at 11) 
The record contains no evidence that the Subcontract was incorporated into the 
Contract between ATC-D and USACE. 
 
7. On March 15, 2023, Frontline submitted a surety claim to Berkley (R4, tab 36). 
 
8. Berkely paid Frontline $190,998.43 in compensation for payments ATC-D 
allegedly owed to Frontline.  However, Frontline alleged that a sum of $481,380 
remained unpaid.  (R4, tab 70 at 2) 
 
9. On June 5, 2024, USACE entered into a takeover agreement with Berkley 
regarding the Contract (gov’t reply, ex. 1). 
 
10.  On June 21, 2024, the CO terminated the Contract for default based upon 
ATC-D’s “failure to progress resulting in unsatisfactory execution of the construction 
in accordance with the terms and conditions of [the] contract” (R4, tab 24). 
 
11.  On November 8, 2024, Frontline submitted a certified claim directly to the CO 
seeking $481,380 for unpaid work (R4, tab 70). 
 
12.  By email dated December 3, 2024, the CO informed Frontline that its claim 
was improper under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, due to 
lack of privity of contract between Frontline and USACE, and advised Frontline that 

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“your dispute is between you and ATC-Davila and their bonding agent” (R4, tab 90 
at 1). 
 
13.  That same day, Frontline filed a notice of appeal with the Board (R4, tab 91).  
The record contains no evidence that ATC-D sponsored the appeal.  The grounds for 
appeal were listed as follows:  (1.) Non-Payment for Completed Work – Frontline 
completed all work under its subcontract, which was verified and approved by USACE 
representatives; (2.) Government Knowledge of Fraud and Criminal Investigation – 
FAR clauses provide clear guidance to protect subcontractors when prime contractor 
engages in fraud, etc.; (3.) Failure to Exercise Oversight and Mitigate Risk – CO was 
aware of ATC-D’s financial instability prior to and during the project but failed to 
protect subcontractor from risk of non-payment; and (4) Violation of FAR and Public 
Policy – by continuing to allow ATC-D to manage the project despite knowledge of 
fraud and criminal investigations, the CO violated FAR requirements and public policy 
to ensure accountability and stewardship of taxpayer funds.  Frontline did not allege 
that it held a contract with USACE or the federal government. 
 
14.  On December 5, 2024, the Board docketed Frontline’s appeal as ASBCA 
No. 64022.  Frontline filed its complaint in the aforementioned appeal on 
December 18, 2024, wherein it lists itself as “Appellant: Frontline Support Solutions, 
LLC, a Texas-based subcontractor (emphasis added).” 
 
DECISION 
 
The Parties’ Contentions 
 
 USACE requests dismissal of this appeal for lack of jurisdiction on the grounds 
that Frontline has failed to establish privity of contract with USACE and does not 
qualify as a “contractor” within the meaning of the CDA (gov’t mot. at 3-9; gov’t 
reply at 6-11).  Frontline contends that due to alleged fraud and insolvency on the part 
of the prime contractor, ATC-D, this case presents “such extraordinary circumstances” 
warranting an exception to the CDA’s privity of contract requirement (app. mot. 
at 2-4).  Additionally, Frontline seeks summary judgment on the grounds that USACE 
violated numerous FAR provisions by continuing to make payments to ATC-D after 
being notified of unpaid subcontractor claims (app. mot. at 5-6).  USACE counters that 
there are material facts in dispute regarding ATC-D’s alleged bankruptcy, criminal 
investigations, and fraud (gov’t reply at 11-14). 
 
Standard of Review 
 
 The Board’s jurisdiction over an appeal of a CDA claim is derived from 
41 U.S.C. § 7105(e)(1)(B), which confers “jurisdiction to decide any appeal from a 
decision of a contracting officer ... relative to a contract made by that agency.”  Under 

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41 U.S.C. § 7103(a)(1)-(2), the contracting officer’s decision that gives rise to a Board 
appeal must be with respect to a claim by a “contractor.”  The term “contractor” is 
expressly defined in 41 U.S.C. § 7101(7) as “a party to a Federal Government contract 
other than the Federal Government.”  Accordingly, “the CDA does not permit appeals 
by anyone who is not a party to a Government contract.”  Winter v. FloorPro, Inc., 
570 F.3d 1367, 1371 (Fed. Cir. 2009) (internal quotation marks omitted); see also id. 
at 1370 (“[T]he provisions of the CDA apply only to ‘contractors,’ i.e., ‘part[ies] to a 
Government contract other than the Government.’ ”) (quoting 41 U.S.C. § 601(4)). 
 
 However, “a plaintiff need only allege” – that is, it need not prove – “the 
existence of a contract” to which it is a party “to establish the Board’s jurisdiction 
under the CDA ‘relative to’ an express or implied contract with an executive agency.”  
Avue Techs. Corp. 96 F.4th 1340, 1344 (Fed. Cir. 2024) citing Engage Learning, Inc. 
v. Salazar, 660 F.3d 1346, 1353 (Fed. Cir. 2011) (emphasis added).  Thus, a party 
needs to “allege, non-frivolously, that it has a contract (express or implied) with the 
federal government.”  “That is, the party must allege, in substance, that there was a 
‘mutual intent to contract including an offer, an acceptance and consideration’ and that 
‘the Government representative who entered or ratified the agreement had actual 
authority to bind the United States.’”  Id. at 1345, Note 3 citing Trauma Serv. Grp. 
v. United States, 104 F.3d 1321,1325 (Fed. Cir. 1997). 
 
The Board Lacks Jurisdiction Because Frontline Neither Alleges Nor Maintains That 
It Has a Contract With USACE 
 
 The facts in this appeal are rather straightforward.  USACE awarded the prime 
Contract to ATC-D, not Frontline (SOF ¶ 3).  Frontline performed work for the project 
pursuant to its Subcontract with ATC-D, not through a direct contract with USACE.  
Most importantly, the USACE Contract did not incorporate the terms and conditions 
of the Subcontract.  Frontline did not allege in either the Notice of Appeal, its 
Complaint, or in its response to the government’s motion that it is a contractor for 
purposes of the CDA (SOF ¶¶ 13-14).  We conclude that Frontline is a subcontractor 
under the ATC-D prime Contract with USACE, and as a subcontractor, Frontline does 
not qualify as a “contractor” within the meaning of the CDA.  41 U.S.C. § 7101(7).  
No privity of contract exists between Frontline and USACE.  (See Johnson Controls, 
713 F.2d 1541 (Fed. Cir. 1983))   
 
 Frontline does not dispute that it lacks privity of contract with USACE, or that 
it is a subcontractor.  Instead, it argues that exceptions to the privity requirement “may 
apply in extraordinary cases” when the government’s “actions or inactions directly 
harm subcontractors or when equitable principles necessitate intervention” (app. mot. 
at 2, 4).  Specifically, Frontline avers that ATC-D’s alleged fraud and insolvency along 
with USACE’s continued payments to ATC-D despite knowledge of ATC-D’s alleged 
fraud amount to “such extraordinary circumstances” warranting an exception to the 

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CDA’s privity of contract requirement.  Thus, Frontline contends that the facts in the 
instant matter are distinguishable and “materially different” from those in Johnson 
Controls because “the court addressed a subcontractor’s direct appeal without any 
allegations of fraud, termination for default, or bankruptcy.  (Id.)  USACE counters 
that Frontline proposes a new category of standing through which a subcontractor may 
sue the government that is unsupported by legal precedent (gov’t reply at 7-9).   
 
 In support of its argument, Frontline cites Erickson Air Crane Co. v. United 
States, 731 F.2d 810 (Fed. Cir. 1984), for the proposition that “the court recognized 
that exceptions to the privity requirement could apply in extraordinary circumstances, 
particularly when the government’s actions directly impacted subcontractors” (app. 
mot. at 4).  However, the Federal Circuit did not state, even in dicta, the proposition 
suggested by Frontline.  In Erickson, the prime contractor sponsored claims of its 
subcontractors and the Federal Circuit, in what it termed a “mistake,” directed the 
clerk to accept briefs on behalf of the subcontractors in their own name.  731 F.2d 
at 813.  Recognizing the error of its ways, the court of appeals issued the following 
edict,  
 
Notice is hereby given that in future contract cases in this 
court, only the prime contractor may be the appellant, 
absent, of course, special contract or regulatory provisions 
not here involved which, in some other cases, might confer 
standing on subcontractors or persons who normally would 
be deemed only subcontractors.  The procedure followed in 
this case will not be regarded as a precedent in future 
cases.  A party in interest whose relationship to the case is 
that of the ordinary subcontractor may prosecute its claims 
only through, and with the consent and cooperation of, the 
prime, and in the prime's name. 
 
(Id. at 814)  Erickson Air Crane stands firmly for the proposition that the Board here 
lacks jurisdiction because of lack of privity between Frontline and the USACE.  While 
the allegations raised by Frontline are serious, these allegations are not sufficient to 
overcome the lack of privity.   
 
 The Board recognizes two limited exceptions to the privity requirement for 
subcontractors:  (1) cases where a prime contractor acts as an agent for the 
government, and (2) cases where a prime contractor sponsors the subcontractor’s 
appeal.  Johnson Controls, 713 F.2d at 1551; Holmes & Narver Servs., ASBCA 
No. 51155, 00-2 BCA ¶ 30,972 at 152,850-51.  Based on our review of the record, 
neither exception is present here (SOF ¶¶ 3, 13).  41 U.S.C. § 7104(a); Johnson 
Controls, 713 F.2d at 1548-50 (Fed Cir. 1983); Shavers-Whittle, 16-1 BCA ¶ 36,246 

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at 176,834; SKE, 15-1 BCA ¶ 35,941 at 175,662.  Accordingly, Frontline’s arguments 
to the contrary are unpersuasive. 
 
Frontline’s Motion for Summary Judgment 
 
 We have considered Frontline’s pleadings and contentions addressed in its 
briefs and filings.  As discussed above, because we conclude that the Board lacks 
jurisdiction over this appeal based upon a lack of an assertion of a contract between 
Frontline and USACE, we need not consider Frontline’s motion for summary 
judgment or its other remaining arguments.   
 
CONCLUSION 
 
 The appeal is dismissed. 
 
 Dated:  April 3, 2025 
 
 
 
 
 
 
 
 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
MICHAEL N. O’CONNELL 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 DAVID B. STINSON 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
 
 
 
 
 
 
 

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 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. 64022, Appeal of Frontline 
Support Solutions, LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  April 3, 2025 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals