ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE ARNETT ON THE GOVERNMENT’S 
MOTION TO DISMISS FOR LACK OF JURISDICTION 
 
 OSC Solutions, Inc. (appellant or OSC) filed an appeal from the denial of its 
claim involving a Blanket Purchase Agreement (BPA).  Respondent Naval Supply 
Systems Command, Fleet Logistics Center Norfolk (the government or the Navy) has 
moved to dismiss this appeal pursuant to ASBCA Rule 7(b).  The government asserts 
that the Board lacks jurisdiction to address this appeal because 1) it arises out of a 
dispute over the terms of a BPA, which is not a contract and, therefore, not subject to 
the Contract Disputes Act (CDA); and 2) appellant has failed to allege facts sufficient 
to demonstrate that an implied-in-fact contract exists between the parties to confer 
jurisdiction under the CDA. 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
1.  On or about May 2, 2019, the government issued Solicitation 
No. N0018919R0041 for a BPA to provide maintenance, repair, and operations 
supplies and materials for sale in “shop stores” at four Naval Facility Public Works 
Department locations in the Northeastern United States (R4, tab 7). 
 
2.  The Solicitation identified a list of services and products that “can be 
ordered under this BPA” and stated that the “BPA does not obligate any funds” (R4, 
tab 7 at 541). 
 
3.  In response to the Solicitation, OSC submitted a price proposal that included 
a table to reflect the monthly and total service price for each of the four locations. 
OSC’s proposal stated a cost of $0 as the monthly and total service price for each 
Appeal of - )  
 )  
OSC Solutions, Inc. ) ASBCA No. 63294 
 )  
Under Contract No. N00189-20-A-0002 )  
   
APPEARANCE FOR THE APPELLANT: Frank V. Reilly, Esq. 
  Oakland Park, FL 
 
APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. 
    Navy Chief Trial Attorney 
 Philip T. Rappmund, Esq. 
    Trial Attorney 

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location and included the following note under the table:  “Store service is included 
within the price of the products therefore there are no additional charge for services.” 
(R4, tab 8 at 599)  
 
4.  On or about August 2, 2019, the government indicated to OSC that it would 
conduct exchanges and request final proposal revisions from offerors.  It identified 
weaknesses in OSC’s proposal, including noting that OSC’s price proposal “must 
contain separately priced services.” (R4, tab 9 at 605-06) 
 
5.  In response, OSC provided a seven-page letter dated August 2, 2019.  To 
address the government’s comment about OSC’s price proposal, OSC stated the 
following:  
 
OSC is offering the required services to the Navy for no 
additional charge as they are incidental to the purchasing 
of the products from our GSA schedule contract.  There is 
therefore no additional charge for OSC to offer the Navy 
the required services under the contract. Required services 
are included for no additional charge.
1 
 
(R4, tab 10 at 613) 
 
6.  On January 2, 2020, the government and OSC entered into BPA 
No. N0018920A0002.  The BPA included a base ordering period through January 1, 
2021, and four subsequent option years. (R4, tab 2) 
 
7.  Paragraph (1) of the BPA states, “The following contract services/products 
can be ordered under this BPA.  All orders placed against this BPA are subject to the 
terms and conditions of the contract, except as noted below . . .” (R4, tab 2 at 5). 
 
8.  Paragraph (3) of the BPA states, “The Government estimates, but does not 
guarantee, that the volume of purchases through this agreement will be 
$70,070,404.09” (R4, tab 2 at 5). 
 
9.  Paragraph (4) of the BPA states, “This BPA does not obligate any funds.  
Funds will be obligated by placement of calls under Federal Acquisition Regulation 
Subpart 8.4 entitled ‘Federal Supply Schedules’, or the use of a Government wide 
purchase card issued under the Federal Acquisition Regulation 13.303 entitled 
‘Blanket Purchase Agreements’, and agency regulations” (R4, tab 2 at 5). 
 
1 OSC reiterated this statement in an email to the government on August 8, 2019 (R4, tab 11 at 615-
16). 

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10.  Paragraph (11) of the BPA states, “Best Value: The Fleet Logistics Center 
Norfolk, Contracting Office, and OSC Solutions, enter into this blanket purchase 
agreement with the intent of ensuring the best value is achieved for the Navy when 
acquiring required materials and services as detailed in the PWS” (R4, tab 2 at 6). 
 
11.  On December 31, 2020, the government exercised Option Period 1, which 
extended the BPA to January 1, 2022 (R4, tab 5 at 112-13). 
 
12.  In July 2021, OSC submitted an invoice requesting payment of 
$1,013,729.28 for “unabsorbed store services direct costs.”  OSC indicated that it had 
discounted its store service costs based on the estimated volume of sales indicated in 
the BPA, which had not been realized (R4, tab 12 at 619).  
 
13.  In October 2021, OSC requested a “resolution” of the unpaid invoice 
indicating that it desired to cancel its obligation under the BPA effective October 29, 
2021, if the government would not pay the invoice (R4, tab 13 at 627). 
 
14.  On November 19, 2021, the government indicated its intent not to exercise 
the next option period (R4, tab 12 at 622-23).  As a result, the BPA expired on 
December 31, 2021. 
 
15.  On November 29, 2021, the contracting officer stated the government’s 
position that there was “no basis for the payment of OSC’s labor service invoices” and 
indicated that the government did not intend to pay the invoices or modify the BPA “to 
permit such charges” (R4, tab 13 at 621). 
 
16.  On February 17, 2022, OSC filed a certified claim seeking $1,152,858 for 
store labor services incurred in the performance of the BPA (R4, tab 6).  Rather than 
price the service costs separately, OSC included its store service costs within the cost 
of its products.  OSC asserted that its service costs were not compensated because the 
government ordered “a small percentage” of the product amount estimated in the BPA, 
and OSC only received payment for services associated with its products that were 
ordered.  Had the BPA estimate been realized, OSC concluded that it would have been 
paid in full.  (R4, tab 6 at 115-18) 
 
17.  On April 18, 2022, the government denied OSC’s certified claim (R4, 
tab 1).  The contracting officer concluded that the BPA did not guarantee a particular 
volume of sales, that the BPA did not impose a contractual obligation upon the 
government, and that OSC made a business decision not to propose separate pricing 
for store labor prices since that was specifically identified in the Solicitation and 
discussed in the exchanges prior to award.  The contracting officer noted that OSC 
elected to include its store service costs within the price of the products stating that 
“there are no additional charge for services.” (R4, tab 1 at 1) 

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18.  On June 2, 2022, appellant filed an appeal with the Board seeking 
$1,153,8582 for labor service costs it allegedly incurred to staff the four Naval Public 
Works Department locations under the BPA due to the government’s alleged breach of 
an implied-in-fact contract.  Appellant further asserted that the Board has jurisdiction 
to consider its’ claims that arose under orders placed pursuant to the BPA.  
Accordingly, we find that these assertions are not frivolous.  
 
DECISION 
 
 In its motion, the government contends that the Board lacks jurisdiction to 
decide OSC’s claim and should dismiss the pending appeal because OSC’s claim does 
not arise from a contract that is subject to the CDA (gov’t mot. at 2).  The government 
asserts that the BPA is not a contract and denies that the circumstances alleged by 
OSC give rise to an implied-in-fact contract (gov’t mot. at 8-9).  Appellant contends 
that it has met the jurisdictional threshold through its “non-frivolous assertion of a 
contract” (app. resp. at 4).  Specifically, appellant asserts an implied-in-fact contract 
exists because the government required appellant to incur staffing service costs upon 
award of the BPA, including staffing costs to process competitor’s orders, and “that it 
was implied that OSC would be paid the fair and reasonable value of work 
performed.”  Further, Appellant argues that the question of whether a valid contract 
exists goes to the merits of the appeal and does not affect the Board’s jurisdiction over 
the appeal.  (App. resp. at 2, 4)  
 
Under the CDA, the Board possesses jurisdiction to hear appeals “from a 
decision of a contracting officer . . . relative to a contract made by that department or 
agency.”  41 U.S.C. § 7105(e)(1)(A)  The Federal Acquisition Regulation (FAR) 
2.101 defines a “contract” as:  “[A] mutually binding legal relationship obligating the 
seller to furnish the supplies or services (including construction) and the buyer to pay 
for them.  It includes all types of commitments that obligate the Government to an 
expenditure of appropriated funds and that, except as otherwise authorized, are in 
writing.”  The Board's jurisdiction under the CDA is predicated upon an “express or 
implied contract” between a contractor and the government.  ASFA Constr. Indus. and 
Trade, Inc., ASBCA No. 57269, 15-1 BCA ¶ 36,034 at 176,004 (citing 41 U.S.C. § 
7102(a)).  As the pr oponent of the Board's jurisdiction, OSC bears the burden of 
establishing jurisdiction by a preponderance of the evidence.  Najmaa Alshimal,  
ASBCA No. 62701, 21-1 BCA ¶ 37,872 at 183,899; see also K-Con Bldg. Sys., Inc. v. 
United States, 778 F.3d 1000, 1004 (Fed. Cir. 2015).  “The facts supporting 
jurisdiction are subject to our fact-finding upon a review of the record.”  CCIE & Co., 
ASBCA Nos. 58355, 59008, 14-1 BCA ¶ 35,700 at 174,816 citing Raytheon Missile 
Sys., ASBCA No. 58011, 13-1 BCA ¶ 35,241 at 173,016. 
 
2 The amount sought in OSC’s complaint for $1,153,858 differs by $1,000 from the amount stated in 
OSC’s claim in the amount of $1,152,858. 

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 The CDA gives the Board jurisdiction over any express or implied contract for 
the procurement of property or services. 41 USC § 7102(a)  The Board has jurisdiction 
to consider a claim seeking payment under an alleged implied-in-fact contract.  
Concorde, Inc., ASBCA No. 53749, 03-1 BCA ¶ 32,113 at 158,783 citing Liquid 
Carbonic, ASBCA No. 39645, 91-2 BCA ¶ 24,040 at 120,334.  The determination of 
whether a valid contract exists goes to the merits of the appeal and will not be resolved 
at this jurisdictional threshold. 
 
 In the instant appeal, we found that appellant has made a non-frivolous 
assertion of a contract sufficient to establish the Board’s jurisdiction (SOF ¶ 18).  
Thus, the Board has jurisdiction over appellant’s claim under an alleged implied-in-
fact contract theory. 
 
CONCLUSION 
 
 The motion to dismiss is denied.  
 
 Dated:  January 17, 2023 
 
 
 
 
 
 
 
LAURA J. ARNETT 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 OWEN C. WILSON 
Administrative Judge 
Vice Chairman 
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. 63294, Appeal of OSC 
Solutions, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  January 18, 2023 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals