ARMED SERVICES BOARD OF CONTRACT APPEALS 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE GOVERNMENT’S 
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 
 
 On December 6, 2021, the Board denied the government’s motion to dismiss this 
appeal for lack of jurisdiction, holding that appellant, AECOM Technical Services, Inc. 
(AECOM), had set forth a non-frivolous allegation of a contract with the government, 
and that AECOM’s allegations that the government wrongfully converted AECOM’s 
designs and work product for its own use was a claim of tortious breach of contract that 
we possess jurisdiction to entertain.  AECOM Technical Services, Inc., ASBCA 
No. 62800, 2021 WL 6103547 (Dec. 6, 2021).  Familiarity with that opinion is presumed.  
The government had also moved to dismiss Counts II and IV of the complaint for failure 
to state a claim (gov’t mot. at 11-15).  We deferred decision upon that motion, and 
address it now. 
 
 Count II alleges: 
 
Count II:  CEHNC Is Required To Pay AECOM Fair 
Compensation for the Value of Its Goods and Services, 
Including Termination for Convenience Costs  
 
27.  [Multiple Award Task Order Contract (MATOC)] III 
expressly includes [Federal Acquisition Regulation (FAR)] 
clause 52.249-2, which provides that [Huntsville Center,  
Appeal of - )  
 )  
AECOM Technical Services, Inc. ) ASBCA No. 62800 
 )  
Under Contract No. W912DY-15-R-ESP7 )  
   
APPEARANCES FOR THE APPELLANT: Manju Gupta, Esq.  
William D. Edwards, Esq.  
Jonathan R. King, Esq. 
    Ulmer & Berne LLP 
    Cleveland, OH 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Karen L. King Vanek, Esq. 
Margaret P. Simmons, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, Huntsville 
     

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U.S. Army Corps of Engineers (CEHNC)] is to compensate 
AECOM for the fair value of services provided and received 
by CEHNC.  When the government cancels a contract for its 
convenience, the government contractor may claim certain 
damages as provided for in the contract’s termination for 
convenience clause, such as costs expended prior to 
termination, lost profits on work actually completed, and any 
professional fees incurred towards the preparation and 
presentation of a termination settlement. 
 
28.  FAR 49.201 provides that a terminated contractor must 
receive fair compensation.  AECOM’s recovery of 
precontract costs to perform the contract are justified because 
AECOM fully relied upon CEHNC’s repeated assurances of 
an impending [task order (TO)] award issuance.  AECOM 
accommodated all of the changes requested by CEHNC 
because, in part, the value of the cost savings was anticipated 
to be significant and would have been paid over the life of the 
contract, and AECOM was delivering the Project 
requirements as directed by CEHNC. 
 
29.  The government has acknowledged the inequities of 
cancelling viable projects after the [Investment Grade Audit 
(IGA)], including the potential liability for certain costs.  
Specifically, in an October 22, 2019, guidance letter, the 
Deputy Assistant Secretary of the Air Force for Environment, 
Safety, and Infrastructure (SAF/IEE) wrote as follows:  
 
Project Cancellation after IGA:  Should the Installation  
Commander recommend cancellation or it is thought to be in 
the best interest of the Air Force to cancel or reduce the scope 
of the project due to a technically non-responsive submittal 
by the contractor, a cancellation notification must be provide 
[sic] to SAF/IEE via memorandum to include explanation.  
All other cancellation requests must submit to the 
Headquarters Air Force Facility Energy and Water Board 
(FEWB) via memorandum an explanation of level of effort, 
timeline, and detailed cause for cancellation.  In the event of a 
cancellation, the installation may be liable to the contractor 
for IGA or other development expenses.  If viable projects are 
cancelled after the IGA, the installation will not be authorized 
to select high return ECMs from an IGA report and 

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accomplish those ECMs as independent Government funded 
projects.  
 
30.  Once AECOM reached the latter stages of the IGA phase 
and was close to a CEHNC-assured TO, AECOM never 
envisioned that it would spend the time and resources that it 
did in direct response to government directions and not be 
awarded a TO.  It would be contrary to law and equity for 
ESPC contracts to have such a loophole that would allow 
CEHNC to obtain such benefits without providing any 
compensation to an [energy services contractor (ESCO)].  
 
WHEREFORE, AECOM prays for judgment in its favor and 
against CEHNC as to Count II in an amount of at least 
$681,469.70, together with costs incurred in making demands 
upon CEHNC for payment, plus interest, attorney fees, costs 
and for such further relief as the ASBCA deems appropriate. 
 
(Compl. at 5-6 (bracketed material added))  Count IV alleges: 
 
Count IV:  CEHNC Breached the Contract by 
Wrongfully Converting AECOM’s Work Product and 
Intellectual Property for Its Own Use  
 
35.  CEHNC breached the contract when it violated the 
implied duty of good faith and fair dealing and MATOC III, 
Section C.26.4, by converting AECOM’s ECM designs and 
work product for its own use.  As stated previously, 
CEHNC’s statement that it “has no plans to exercise its 
option to obtain ownership of any submitted documentation 
pertinent to this project” is disingenuous.  CEHNC has never 
returned AECOM’s submitted documentation, which 
contained hundreds of pages of design, measurement, 
calculation analysis and cost estimating documents.  The 
Base’s own news articles elaborate on the importance of 
energy efficiency and demonstrate that CEHNC used 
AECOM’s ideas and designs to implement ECMs after 
CEHNC cancelled the Project. 
 
WHEREFORE, AECOM prays for judgment in its favor and 
against CEHNC as to Count IV in an amount of at least 
$681,469.70, together with costs incurred in making demands 

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upon CEHNC for payment, plus interest, attorney fees, costs 
and for such further relief as the ASBCA deems appropriate. 
 
(Compl. at 7-8) 
 
Dismissal for failure to state a claim upon which relief can be granted is 
appropriate where the facts asserted in the complaint do not entitle the claimant to a legal 
remedy; the Board will deny a motion to dismiss for failure to state a claim when the 
complaint alleges facts plausibly suggesting a showing of entitlement to relief.  See 
Parsons Gov’t Servs., Inc., ASBCA No. 60663, 17-1 BCA ¶ 36,743 at 179,100.  In 
deciding a motion to dismiss for failure to state a claim, the Board must accept 
well-pleaded factual allegations as true and must draw all reasonable inferences in favor 
of the claimant; we decide only whether the claimant is entitled to offer evidence in 
support of its claims, not whether the claimant will ultimately prevail.  Id. at 179,101.  In 
addition to reviewing the allegations contained in the complaint, the Board may consider 
matters incorporated by reference or integral to the claim, items subject to judicial notice, 
and matters of public record.  Parwan Grp. Co., ASBCA No. 60657, 18-1 BCA ¶ 37,082 
at 180,498 (considering contract terms in deciding Rule 12(b)(6) motion).  Here, 
MATOC III is referenced in the complaint and integral to AECOM’s claim; accordingly, 
we may consider it in deciding the government’s motion.  See id. (considering contract 
terms in deciding Rule 12(b)(6) motion). 
 
With respect to Count II, the government argues that “[a]ppellant fails to state a 
claim under which relief can be granted because it cannot and has not alleged that the 
Government terminated any contract cognizable under the [Contract Disputes Act]” 
(gov’t mot. at 12 (alteration added)).  In view of our earlier decision that AECOM has set 
forth a non-frivolous allegation of a contract with the government, we deny the 
government’s motion to dismiss Count II for failure to state a claim. 
 
With respect to Count IV, the government argues that “[b]ecause the directives of 
FAR Part 4.803(a)(10) govern the Government’s retention of offerors’ proposal materials, 
Appellant’s allegation that the Government’s [] simple retention of its proposal materials 
amounted to ‘wrongful conversion’ is invalid as a matter of law, and the Government 
moves to dismiss said allegation for failure to state a cause of action upon which relief 
may be granted under [Federal Rule of Civil Procedure (FRCP)] Rule 12(b)(6)” (gov’t 
mot. at 13 (alteration added)).  FAR 4.803(a)(10) provides: 
 
The following are examples of the records normally 
contained, if applicable, in contract files: 
 
(a) Contracting office contract file. 
 
. . . 

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(10) A copy of each offer or quotation, the 
related abstract, and records of 
determinations concerning late offers or 
quotations.  Unsuccessful offers or 
quotations may be maintained separately, 
if cross-referenced to the contract file.  
The only portions of the unsuccessful 
offer or quotation that need be retained 
are— 
 
(i) Completed solicitation sections A, B, 
and K; 
 
(ii) Technical and management proposals; 
 
(iii) Cost/price proposals; and 
 
(iv) Any other pages of the solicitation that 
the offeror or quoter has altered or 
annotated. 
 
In response, AECOM quotes (app. resp. at 24-25) MATOC III, section C.26.4, 
Option to Obtain Ownership to Submitted Documentation and Concepts, which Count IV 
of the complaint cites, and which provides: 
 
The Government shall have the option to obtain ownership of 
all surveys, feasibility studies, designs, and proposals 
submitted to the KO, including the content and technical 
approach presented.  If after the ESCO has performed 
feasibility study, designs, proposals, and/or site surveys the 
Government chooses to pursue a project by means other 
than this contract, the Government may exercise its option to 
obtain ownership of all surveys, proposals, and designs 
submitted to the KO, including the content and technical 
approach presented, for the individual ECM in question.   
The ESCO shall receive appropriate consideration for the 
ESCO effort on the particular ECM (i.e., recovery of study 
and design costs as estimated and submitted to the KO via the 
site survey report and the feasibility study report plus 
the cost to perform the site survey plus an appropriate mark-
up [sic] [missing end parenthesis].  This contract language is 
included to allow the best use of taxpayer funds by allowing 

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the Government to develop its resources through the best 
manner possible, while compensating the ESCO for his 
efforts.  If the ESCO and Government are unable to agree on 
price and terms for execution work efforts and the 
Government utilizes another ESCO, the Government should 
only pay those costs that are fair and reasonable for the work 
performed. 
 
(App. resp., ex. 1 at 281; R4, tab 6 at 129)  In view of MATOC III, Section C.26.4, 
Count IV of the complaint alleges facts that plausibly suggest that the government owes 
AECOM money for having kept AECOM’s work product without paying for it; 
consequently, we deny the government’s motion to dismiss Count IV for failure to state a 
claim. 
 
For the foregoing reasons, the government’s motion to dismiss Counts II and IV of 
the complaint for failure to state a claim is denied. 
 
Dated:  February 7, 2022
 
 
 
 
 
 
 
 
 
 
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 
 
  
 
TIMOTHY P. MCILMAIL 
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. 62800, Appeal of AECOM 
Technical Services, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  February 8, 2022   
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals