1 
 
ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE ARNETT 
 
 This appeal arises from denial of a claim filed by OSC Solutions, Inc. (OSC or 
appellant) seeking $1,152,858 for store labor services incurred in performance of a 
Blanket Purchase Agreement (BPA) with the U.S. Navy (Navy or government) (see 
generally R4, tab 6).  OSC contends that it was not compensated for store labor service 
costs because only a “small percentage” of the orders estimated in the BPA were filled 
with OSC products and OSC’s service costs were included within the cost of its 
products rather than priced separately (id. at 115).  Thus, OSC only received payment 
for service costs associated with its products that were ordered which was insufficient 
to cover the service costs it incurred.   
 
 The Navy asserts that the BPA was not a contract as it did not obligate any 
funds or bind the government to order the estimated quantity of OSC products.  The 
Navy notes that OSC was invited through the solicitation and during discussions to 
submit separate pricing for store labor services but responded that services were 
provided at “no additional charge” (gov’t br. at 9-10). 
   
 We have previously determined that we have jurisdiction over this appeal 
pursuant to the Contract Disputes Act of 1978, 41 U.S.C. §§ 7101-7109 (CDA).  See 
OSC Sol., Inc., ASBCA No. 63294, 23-1 BCA ¶ 38,266 at 185,805.  Familiarity with 
the facts is presumed.  The parties elected to submit this appeal on the record pursuant 
to Rule 11 and requested that the Board decide entitlement only. 
   
 Because the BPA is not a contract for purposes of the CDA, and OSC cannot 
prevail under express or implied-in-fact contract theories, the appeal is denied. 
 
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 

2 
 
FINDINGS OF FACT 
 
The Solicitation: 
 
 1.  On or about May 2, 2019, the Navy issued a solicitation for a BPA 1 to 
provide maintenance, repair, and operations (MRO) supplies and materials for sale in 
“shop stores” at four Naval Facility Public Works Department (PWD) locations in the 
Northeastern United States (R4, tab 7 at 565). 
 
 2.  The Performance Work Statement (PWS) required the contractor to “furnish 
all labor, supplies, equipment, management, supervision, and reports necessary to 
maintain an adequate supply of all parts, materials, and equipment needed to 
accomplish the needs of each PWD” (id. at 565).  The contractor was required to fill 
“all customer requests for material” and “research and procure all items from vendors 
available from the approved GSA Schedules incorporated into” the BPA (id. at 572, 
582).  If the Navy needed material that was not stocked in the shop stores through the 
approved GSA Schedules, the PWS required the contractor to assist the Navy to find 
sources of supply (id. at 580).   
  
 3.  PWS § 2, Determination of Supply Requirements, indicated that the Navy 
could submit purchase requests for brand name or manufacturer-specific items.  Unless 
otherwise stated in the purchase request, the contractor “may propose substitutes 
available on the Schedules” and the Navy could approve or reject the proposed 
substitution.  (Id. at 568)  Further, PWS § 2.1.4 stated, “MRO supplies and other 
product lines considered to be MRO items not initially identified in the Schedule 
provided may be added at any time based on the requirements of the ordering 
activity and must be added to the GSA Schedule” (id. at 568) (emphasis added).  
Regarding Ordering, PWS § 5.1 indicated, “The contractor is expected to research 
outside its own circle of suppliers to fulfill the Government’s needs in an expeditious 
manner in accordance with their Contractor Teaming Arrangement” (id. at 572). 
 
 4.  The PWS i dentified a Shop Stores Inventory List and an Authorized Use 
List as attachments
2 (id. at 565, 582).  During quarterly reviews, the Navy could 
modify the list as well as “present the contractor with a list” of shop store stock list 
items that were purchased through other sources.  In that event, the contractor would 
be responsible to provide “documentation supporting why those items could not be 
purchased through the shop store.”  (Id. at 581) 
 
 
1 A blanket purchase agreement (BPA) is a “simplified method of filling anticipated repetitive 
needs for supplies or services by establishing ‘charge accounts’ with qualified sources 
of supply” (FAR 13.303-1).  
2 The attachments do not appear to be included in the record. 

3 
 
 5.  The solicitation stated, 
 
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.
3 
 
(Id. at 5).  Further, it noted, “Orders will be placed against this BPA via Electronic 
Data Interchange (EDI), FAX, paper, or oral communications” (id. at 541).  The 
solicitation stated, “Non-Schedule items will not be procured using the resulting 
Agreement” (id. at 551). 
 
 6.  The solicitation provided the following instruction regarding discount rates 
in price proposals submitted by offerors: 
 
The offeror shall propose a fixed discount rate to be 
applied to the service and material requirements which will 
be established as a term in the resulting BPA.  The offeror 
shall offer a fixed discount for each of the following: 
 
o Services; 
o Schedule 51V Materials; and  
o Each Schedule other than 51V used to complete the 
Test Market Basket. 
 
Note:  All requirements to include services and materials 
must be on a FSS Schedule; no “open market” materials 
are permitted. 
 
(Id. at 550) (emphasis omitted)
4 
 
 
3 “The Federal Supply Schedule program is directed and managed by GSA and provides 
Federal agencies . . . with a simplified process for obtaining commercial supplies and 
commercial services at prices associated with volume buying” FAR 8.402(a). 
4 Schedule 51V Materials refers to GSA Schedule 51V Hardware Superstore. “Open market” 
refers to items that are not on Federal Supply Schedules.  FAR 8.402(f). 

4 
 
 7.  The solicitation provided the following instruction regarding services 
pricing: 
 
Separate price information shall be submitted for each of 
the four (4) PWDs for a total of twelve (12) months of 
service support as required by the PWS.  The price for the 
services shown in this spreadsheet shall include all fully-
burdened labor required to provide services and shall be 
less than or equal to the offeror’s GSA Schedule 51 V 
rates.  The offeror shall apply the Services Discount 
proposed in Tab 1 of Attachment 3 to the total proposed 
services price, which will result in the Total Discounted 
Service Price . . . . 
 
(Id. at 550) 
 
OSC’s Proposal and Revisions: 
 
 8.  In response to the solicitation, OSC submitted a price proposal which stated, 
“10% Store service is included within the price of the products therefore there are no 
additional charge (sic) for services” (R4, tab 8 at 598).  OSC’s proposal also included 
a table to reflect the monthly and total service price for each of the four shop store 
locations.  It stated a cost of $0 as the monthly and total service price for each 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 (sic) for services.”  (Id. 
at 599) 
 
 9.  On August 2, 2019, the Navy indicated that it would conduct exchanges and 
request final proposal revisions.  It identified weaknesses in OSC’s proposal, including 
noting that OSC’s price proposal “must contain separately priced services.”  It 
requested that OSC address this concern.  (R4, tab 9 at 605-06) 
 
 10.  In response, OSC provided a seven-page letter dated August 2, 2019 and a 
subsequent email on August 8, 2019.  Both communications from OSC stated: 
 
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. 
 
(R4, tabs 10 at 613, 11 at 615-16) 

5 
 
The Agreement: 
 
 11.  On January 2, 2020, the Navy 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 at 4, 39) 
 
 12.  Paragraph (1) of the BPA stated, “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 . . .”  (Id. at 5)  It noted, 
“Open market items may not be ordered under this BPA” (id.).
5   
 
 13.  Paragraph (3) of the BPA stated, “The Government estimates, but does not 
guarantee, that the volume of purchases through this agreement will be 
$70,070,404.09” (id.). 
 
 14.  Paragraph (4) of the BPA stated, 
  
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.  
(Id.) 
 
 15.  Paragraph (11) of the BPA stated,  
 
“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.” 
 
(Id. at 6) 
 
 16.  Both the solicitation and the BPA referenced Federal Acquisition 
Regulation (FAR) 8.405-3, Blanket Purchase Agreements, and FAR 13.03, Blanket 
Purchase Agreements, and both consistently characterized the arrangement between 
the parties as a “BPA” (R4, tabs 7 at 541, 2 at 5).   
 
5 Open market items are items not on the Federal Supply Schedules or GSA schedules (FAR 
8.402(f)). 

6 
 
 17.  FAR 16.506(d)(1) instructs the government to insert FAR clause 52.216-
21, Requirements, in solicitations and contracts where a requirements contract is 
contemplated.  Neither the solicitation nor the BPA referred to the arrangement 
between the parties as a “requirements contract” or referenced FAR Part 16.503 or 
FAR clause 52.216-21. (see generally R4, tabs 2 and 7) 
 
 18.  We find the agreement between the parties to be a BPA, not a requirements 
contract.  
 
OSC’s Requests for Compensation for Store Labor Services: 
 
 19.  After award of the BPA, OSC staffed the shop stores and filled an 
unidentified number of orders placed by the Navy under the BPA for products on 
OSC’s GSA Schedule.  The dollar value of orders placed on OSC’s BPA was less than 
the government estimate (answer ¶ 23). 
  
 20.  On December 31, 2020, the government exercised Option Period I, which 
extended the BPA to January 1, 2022 (R4, tab 5 at 112-13). 
 
 21.  In July 2021, OSC submitted an invoice requesting payment of 
$1,013,729.28 for “unabsorbed store services direct costs.”  OSC stated 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)  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).
6 
 
 22.  On November 19, 2021, the Navy 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.  On November 29, 2021, the contracting officer stated that there 
was “no basis for the payment of OSC’s labor service invoices” and indicated that the 
Navy did not intend to pay the invoices or modify the BPA “to permit such charges” 
(R4, tab 13 at 621). 
 
 23.  On February 17, 2022, OSC filed a certified claim seeking $1,152,858 for 
store labor services incurred in the performance of the BPA (see generally 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 Navy ordered “a small percentage” of the product amount 
estimated in the BPA, and OSC only received payment for services associated with its 
 
6 OSC incorrectly asserts that the Navy “backed out of” the BPA by declaring it 
“unenforceable” to avoid paying OSC (app. reply at 23). 

7 
 
products that were ordered.  Had the BPA estimate been realized, OSC concluded that 
it would have been paid in full.  (Id. at 115-18) 
 
 24.  On April 18, 2022, the Navy denied OSC’s certified claim (see generally 
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 Navy, 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.”  (Id. at 1-2) 
 
 25.  On June 2, 2022, OSC filed an appeal with the Board seeking $1,153,858
7 
for labor service costs it allegedly incurred to staff the four Naval PWD locations 
under the BPA.  The appeal was docketed as ASBCA No. 63294. 
 
DECISION 
 
I.  The Parties’ Contentions 
 
 OSC asserts that the BPA was a contract because it was an “order” which 
obligated OSC to provide staffing and, therefore, obligated funds to pay for staffing 
(app. br. at 11).  OSC contends that it processed 100% of the estimated orders
8 which 
included “prohibited orders” for other vendors’ products but was only paid store labor 
service costs for the portion of the orders (approximately 17%) that were for OSC 
products (id.).  OSC concludes that “only products on OSC’s authorized GSA pricelist 
could be ordered” and characterizes government purchases through other vendors as 
“prohibited open market purchases” (id. at 1, 5).  In effect, OSC posits the BPA as a 
requirements contract9 conferring exclusive rights upon OSC to fulfill all orders under 
the BPA with OSC’s products thereby earning store labor service costs for every order 
placed (id. at 11).  Alternatively, OSC asserts that the Navy should be required to pay 
for OSC’s services under an implied in fact or constructive change theory since the 
Navy “cannot get free services by ordering prohibited goods outside the terms and 
conditions of the Order” (id. at 12). 
 
7 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.  In its reply brief, OSC clarified 
that the claim amount of $1,152,858 is the correct amount sought. 
8 The inference that OSC processed orders for other vendors’ products differs from its claim 
that the “estimated volume of orders did not materialize” (R4, tab 6 at 115).  There is 
no evidence in the record that OSC filled orders for other vendors’ products. 
9 While it does not use this term, OSC treats the BPA as if it were a requirements contract 
under FAR 16.503. 

8 
 
 The Navy asserts that the BPA was not a contract as it did not obligate any 
funds and did not bind the government to order the estimated quantity.  The Navy 
notes that OSC was invited both through the solicitation and during discussions to 
submit labor pricing, and OSC responded that its service costs were included in the 
price of the products and therefore “no additional charge” (gov’t br. at 9-10).  The 
Navy contends that OSC made a “deliberate business decision in pricing its proposal” 
and is not entitled to relief under any legal theory (id. at 14).  Finally, the Navy asserts 
that it did not enter into a requirements contract with OSC (gov’t reply at 4-5).   
 
II.  Standard of Review under Board Rule 11 
  
 Under Board Rule 11, the parties may waive a hearing and instead have the 
Board issue a decision based on the record.  “Unlike a motion for summary judgment, 
which must be adjudicated on the basis of a set of undisputed facts, pursuant to Board 
Rule 11, the Board ‘may make findings of fact on disputed facts.’”  U.S. Coating 
Specialties & Supplies, LLC, ASBCA No. 58245, 20-1 BCA ¶ 37,702 at 183,031 
(citing Grumman Aerospace Corp., ASBCA No. 35185, 92-3 BCA ¶ 25,059 
at 124,886 n.13).   
 
III.  OSC cannot prevail under an express contract theory. 
 
A.  The dispute arises under the BPA, not the Schedule Contract.  
 
First, we must address where the dispute arises.  The Court of Appeals for the 
Federal Circuit established a “bright-line rule” in its decision in Sharp Electronics v. 
McHugh that “all disputes requiring interpretation of the schedule contract go to the 
schedule [contracting officer], even if those disputes also require interpretation of the 
order, or involve issues of performance under the order.”  707 F.3d 1367, 1373 (Fed. 
Cir. 2013).  However, the Court explained the application of this rule does not prevent 
the contracting officer from construing the language of the order or to apply relevant 
provisions of the schedule contract as long as there is no dispute in their meaning.  The 
Federal Circuit held: 
 
FAR 8.406-6 does not authorize an ordering CO to decide 
a dispute requiring interpretation of schedule contract 
provisions, in whole or in part, regardless of whether the 
parties frame the dispute as pertaining to performance.  
However, the ordering CO is certainly authorized to 
construe the language of the order (or its modifications).  
Because an order's details—not merely price, quantity, and 
specifications, but also permissible variation in quality or 
quantity, hours and location of delivery, discounts from 
schedule pricing, etc.—are arranged between the schedule 

9 
 
contractor and the ordering CO, the ordering CO is able to 
construe these commonly disputed terms as long as the 
dispute does not involve interpretation of the schedule 
contract. 
 
(Id. at 1374) 
 
Pursuant to the bright-line rule from Sharp Electronics, we must determine whether 
this dispute requires interpretation of schedule contract provisions, in whole or in part.  
Id. 
 In this case, the dispute does not require interpretation of or a dispute regarding 
schedule contract provisions.  Instead, OSC’s claim focuses on the BPA and its 
asserted rights under the BPA.  The Navy focuses on how OSC bid the BPA and 
asserts that the schedule contract has no relevance to this appeal (gov’t reply at 5).  We 
agree.   
 
B.  This BPA is not a contract. 
 
 While OSC attempts to bind the government to exclusively  purchase OSC 
products, this BPA is not a requirements contract, or even a contract at all.  There are 
fundamental differences between a requirements contract and a BPA.  A requirements 
contract is a binding contract; a BPA generally is not.  A requirements contract 
“creates a binding contractual obligation upon the government to order, and for the 
contractor to furnish the government’s needs or requirements of a specific item or 
service for a specified period of time.”  Gen. Dynamics Ordnance and Tactical Sys., 
Inc., ASBCA No. 56870, 11-2 BCA ¶ 34,774 at 171,128 (citing Medart, Inc. v. Austin, 
967 F.2d 579, 581 (Fed. Cir. 1992)); see also FAR 16.503.  “[A]n essential element of 
a requirements contract is the promise by the buyer to purchase the subject matter of 
the contract exclusively from the seller.”  Modern Sys. Tech Corp. v. United States, 
979 F.2d 200, 205 (Fed. Cir. 1992).  “[I]t is the very essence of a requirements 
contract . . . that the buyer agree to turn to the supplier for all of its needs.”  Id. at 206 
(quoting Torncello v. United States, 681 F.2d 756 (Cl. Ct. 1982)). 
   
 Conversely, a BPA that does not impose a binding obligation upon the parties is 
not a contract.  Crewzers Fire Crew Transp. Inc. v. United States, 741 F.3d 1380, 1384 
(Fed. Cir. 2014); Modern Sys. Tech Corp., 979 F.2d at 202-04.  The Court of Appeals 
for the Federal Circuit and the Board have consistently held that a BPA was not a 
contract where it lacked mutuality of consideration and found that separate contracts 
“come into being each time the Government ordered services [under the BPA] and 
appellant provided such services.”  Hewlett-Packard Co., ASBCA Nos. 57940, 57941, 
13-1 BCA ¶ 35,366 at 173,551 (quoting Julian Freeman, ASBCA No. 46675, 94-3 
BCA ¶ 27,280 at 135,906); see also Dr. Chauncey L. Duren d/b/a Chesapeake 
Orthopedics, ASBCA No. 35773, 90-1 BCA ¶ 22,386 at 112,487.  Once an order is 

10 
 
placed under a BPA, a contract is created with respect to that order, but the BPA is not 
a contract where it lacks mutuality of consideration. See, Hewlett-Packard Co., 13-1 
BCA ¶ 35,366 at 173,551 (discussing Zhengxing v. United States, 204 F.App’x 885, 
886-87 (Fed. Cir. 2006), aff’g, 71 Fed. Cl. 732 (2006)). 
 
 A contract with the government requires (1) mutuality of intent, (2) 
consideration, (3) an unambiguous offer and acceptance, and (4) actual authority on 
the part of the government’s representative to bind the government in contract.  
Anderson v. United States, 344 F.3d 1343, 1353 (Fed. Cir. 2003).  A failure of any of 
these requirements precludes the existence of a valid contract. 
 
 Here, the BPA is not a contract because it lacks mutuality of consideration.  The 
BPA expressly stated that it did not obligate any funds or guarantee a specific volume 
of purchases (findings 13-14).  While the BPA may have required OSC to perform 
some staffing services in preparation for issuing orders under the BPA, we hold that 
there is no consideration under the BPA for such work.  OSC was solicited to provide 
service costs for staffing the four locations; however, OSC declined to do so in its 
proposal and exchanges prior to execution of the BPA (findings 8-10).  Instead, OSC 
consistently indicated that its service costs were incidental to the purchase of products 
which would be sold under orders issued against the BPA and captured within the 
purchase price of the products sold (id.).  At the time the BPA was executed, neither 
party intended any compensation for services until such time as an order might be 
issued.  Lacking mutuality of consideration, we conclude that the BPA is not a 
contract.  Because the BPA is not a contract, it does not serve as a basis for Board 
jurisdiction or afford OSC any remedy.10 
 
IV.  OSC cannot prevail under an implied contract theory. 
 
 OSC asserts that an implied contract arose from the BPA whereby OSC would 
perform services to stock and staff the four locations and would be paid “the fair and 
reasonable value” of work performed (compl. at 2). 
 
A.  OSC cannot prevail on its implied-in-fact contract argument. 
 
An implied-in-fact contract is founded upon a meeting of the minds and “is 
inferred, as a fact, from the conduct of the parties showing, in the light of the 
surrounding circumstances, their tacit understanding.”  Guardian Safety & Supply LLC 
dba Enviro Safety Products, ASBCA No. 61932, 19-1 BCA ¶ 37,333 at 181,560; 
Kam-Almaz v. United States, 682 F.3d 1364, 1368 (Fed. Cir. 2012) (quoting Hanlin v. 
 
10 As indicated in the Board’s decision on the government’s motion to dismiss, we concluded 
that OSC’s assertion of an implied-in-fact contract was sufficient to establish 
jurisdiction over the dispute.  

11 
 
United States, 316 F.3d 1325, 1328 (Fed. Cir. 2003)); see also Prudential Ins. Co. of 
Am. v. United States, 801 F.2d 1295, 1297 (Fed. Cir. 1986) (“A contract implied in 
fact is not created or evidenced by explicit agreement of the parties, but is inferred as a 
matter of reason or justice from the acts or conduct of the parties.”).  The requirements 
for an implied-in-fact contract with the government “are the same as for an express 
contract; only the nature of the evidence differs.”  Hanlin, 316 F.3d at 1328; see also 
Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997).  The 
elements of proof to establish a valid contract with the government are:  (1) mutuality 
of intent to contract; (2) lack of ambiguity in offer and acceptance; (3) consideration; 
and (4) actual authority on the part of the government representative to bind the 
government in contract.  Anderson, 344 F.3d at 1353.  OSC bears the burden of 
proving the existence of an implied-in-fact contract.  Altanmia Com. Mktg. Co., 
ASBCA No. 55393, 09-1 BCA ¶ 34,095 at 168,584. 
 
For the same reasons that the BPA is not an express contract, it also is not an 
implied-in-fact contract.  The BPA did not obligate government funds (findings 5, 14).  
This demonstrates both a lack of government intent to contract as well as a lack of 
consideration.  OSC proposed that it would perform services “for no additional 
charge” stating that service costs were “incidental to the purchasing of the products” 
(finding 10; see also findings 8-9).  The repeated and express nature of OSC’s 
communications regarding this element of its price proposal demonstrates OSC’s 
intent to capture its service costs through orders, not the BPA.  The meeting of the 
minds as expressed in OSC’s proposal, exchange communications, and the BPA was 
that OSC would be compensated for service costs through product orders, not through 
the BPA.  The BPA lacks consideration. 
 
The compensation now sought by OSC for store labor services arises from how 
OSC bid the BPA, specifically its decision to not separately price service costs.  While 
OSC attempts to explain the logic and intent behind its decision to bid the BPA in the 
manner that it did, it has not alleged or demonstrated grounds to recover for a mistake 
in its bid.  Rather, OSC made a deliberate business decision to not separately price 
service costs.  Further, OSC’s allegations regarding the source selection process for the 
BPA and the exclusion of another offeror are irrelevant and unsupported.  OSC has 
presented no evidence to substantiate its assertions.  Attorney argument is not 
evidence.  Icon Health and Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1043 (Fed. Cir. 
2017); see, e.g., Gemtron Corp. v. Saint-Gobain Corp., 572 F.3d 1371, 1380 (Fed. Cir. 
2009) (“[U]nsworn attorney argument  . . . is not evidence and cannot rebut . . . other 
admitted evidence . . . .”). 
 
We will not disregard the express language of OSC’s proposal or its 
communications regarding its price proposal prior to award of the BPA which clearly 
listed $0.00 for services, stated that the services were incidental to the purchase of 
products and were included “for no additional charge” (findings 8, 10).  We find no 

12 
 
basis for an implied-in-fact contract that would be contrary to the terms of both OSC’s 
proposal and the BPA.  OSC has not met its burden to demonstrate an implied-in-fact 
contract.   
 
B.  OSC cannot prevail on a quantum meruit argument.  
 
A common theme among OSC’s arguments is the unfairness of the 
government’s refusal to pay the claimed service costs which appears to be a quantum 
meruit argument.   Recovery in quantum meruit, or quasi-contract, is generally 
considered to involve a contract implied-in-law rather than a contract implied-in-fact.  
R.G.W. Commc’n Inc., ASBCA Nos. 54495, 54557, 05-1 BCA ¶ 32,972 at 163,333; 
Perri v. United States, 340 F.3d 1337, 1343 (Fed. Cir. 2003); see also Trauma Service 
Grp. v. United States, 104 F.3d at 1327 (receipt of services benefiting the government 
does not create an implied-in-fact contract to pay for them but involves a contract 
implied-in-law scenario). Generally, the Board lacks jurisdiction to grant relief arising 
from an implied-in-law contract.  R.G.W. Communications Inc., 05-1 BCA ¶ 32,972 
at 163,333; United Pacific Ins. Co., ASBCA No. 53051, 03-2 BCA ¶ 32,267 
at 159,623, aff’d, United Pacific Ins. Co. v. Roche, 380 F.3d 1352 (Fed. Cir. 2004).  To 
the extent that OSC seeks equitable relief under an implied-in-law contract or quantum 
meruit theory of recovery, OSC’s claim is denied because the Board lacks jurisdiction 
to grant such relief. 
 
V.  OSC has failed to demonstrate a constructive change. 
 
OSC argues that government orders for other vendors’ products constituted 
changes for which OSC should be compensated (app. br. at 12).  “A constructive 
change occurs where a contractor performs work beyond the contract requirements 
without a formal order, either by an informal order or due to the fault of the 
Government.”  Int’l Data Prods. Corps. v. United States, 492 F.3d 1317, 1325 (Fed. 
Cir. 2007) (citing Miller Elevator Co. v. United States, 30 Fed. Cl. 662, 678 (1994)).  
“If a contractor performs work that cannot be characterized as additional work under 
the contract, it does not constitute a change.”  South Bay Boiler Repair, Inc., ASBCA 
No. 59281, 17-1 BCA ¶ 36,634 at 178,426 (citing Int’l Data, 492 F.3d at 1325); see 
also Bell/Heery v. United States, 739 F.3d 1324, 1335 (Fed. Cir. 2014) (“To 
demonstrate a constructive change, a plaintiff must show (1) that it performed work 
beyond the contract requirements, and (2) that the additional work was ordered, 
expressly or impliedly, by the government.”). 
 
To recover based on a “change” theory, a contractor must show that the extra 
work allegedly performed was not “volunteered,” but a result of direction from a 
Government official. See, e.g., Len Co. & Assoc. v. United States, 181 Ct. Cl. 29, 38 
(1967); Inman & Assoc. Inc., ASBCA No. 37869 et al. 91-3 BCA ¶ 24,048 at 120,370.   
 

13 
 
Here, OSC’s “change” argument is underdeveloped and unsupported.  While 
OSC alleges that it incurred service costs operating the shop stores, there is no 
apparent change or extra work required from OSC.  OSC committed to staff the shop 
stores in exchange for service costs earned through the sale of its products.  OSC 
offers no evidence, only counsel argument, of any extra work performed.  “Attorney 
argument is not evidence.”  Icon Health and Fitness, Inc., 849 F.3d at 1043.  
 
As previously discussed, the BPA did not create a requirements contract 
whereby OSC would be the exclusive provider to the Navy for the MRO products at 
issue (finding 18).  Additionally, the solicitation notified OSC that it might be required 
to assist the government in finding sources of supply for items not on OSC’s GSA 
Schedule and that MRO products not “initially identified in the Schedule provided 
may be added at any time based on the requirements of the ordering activity and must 
be added to the GSA Schedule” (findings 2-3).  The PWS also indicated that the 
government could submit purchase requests for brand-name or manufacturer-specific 
items and OSC’s proposed substitution of OSC Schedule products may be denied 
(finding 3).  Thus, we find that OSC was on notice, before it submitted its proposal, 
that it might be required to add products to its GSA Schedule (findings 2-3).  We find 
no evidence of extra work.  OSC has failed to demonstrate a constructive change. 
 
CONCLUSION 
 
 For the reasons stated herein, the appeal is denied.   
 
 Dated:  July  20, 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 

14 
 
 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:  July 24, 2023 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals