MOTION TO DISMISS FOR LACK OF JURISDICTION DENIED:  June 28, 2019
CBCA 6360
AVUE TECHNOLOGIES CORPORATION,
Appellant,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Respondent.
Andy Liu and Jason C. Lynch of Nichols Liu LLP, Washington, DC, counsel for
Appellant.
Richard G. Bergeron and Tami S. Hagberg, Office of the General Counsel,
Department of Health and Human Services, Washington, DC, counsel for Respondent.
Before Board Judges SHERIDAN, O’ROURKE, and CHADWICK.
O’ROURKE, Board Judge.
Avue Technologies Corporation (Avue) licenses software that another company sells
through the Federal Supply Schedule (FSS).  Avue submitted a certified claim to a
purchasing agency, then appealed the deemed denial of its claim to the Board, arguing that
the FSS contractor need not sponsor the claim because Avue is in privity of contract with the
purchaser through an end user licensing agreement.  The agency seeks dismissal of the appeal
for lack of jurisdiction on the grounds that Avue is a subcontractor under the FSS.  We deny
the motion because Avue non-frivolously alleges that it has its own written procurement
contract with the Government.


CBCA 6360 2
Background
Carahsoft Technology Corp. (Carahsoft) sells information technology products and
services to government agencies under a “Schedule 70” FSS contract with the General
Services Administration (GSA).  Avue is one of Carahsoft’s subcontractors on the schedule. 
Avue offers solutions for managing human resources, such as position development and job
classification software.  
In 2015, the Food and Drug Administration (FDA) ordered a subscription to one of
Avue’s products through Carahsoft’s FSS contract.  The order included a base year and up
to four option years.  At the end of the first year, the FDA did not exercise the option to
continue.  Avue alleges that FDA downloaded more than 5000 position descriptions from
Avue’s database, purchased a less expensive database from a different source, then populated
the new database with the downloaded position descriptions. 
In March 2018, Avue submitted a certified claim for $41,398,796.80 to the FDA
contracting officer.  Avue asserted in the claim that “[t]he Carahsoft FSS contract expressly
incorporate[d]” an end user licensing agreement (or EULA) called “the Avue Master
Licensing Agreement,” and that “FDA users . . . had to ‘click’ the box representing their
agreement to the terms of [the license].  Thus, FDA and FDA users had privity of contract
with Avue through its licensing agreements.”  (Emphasis added.)
In August 2018, the FDA contracting officer advised Avue that he would not act on
Avue’s claim because FDA “does not have a contract with Avue.  Rather, FDA has a contract
with Carahsoft. . . . If Avue wishes to pursue its ‘claim,’ it can . . . hav[e] Carahsoft assert
a pass-through claim against FDA on Avue’s behalf.” 
Avue filed this appeal in January 2019.  Before Avue filed its complaint, the
respondent, Department of Health and Human Services (HHS), FDA’s parent agency, filed
a motion to dismiss the appeal for lack of jurisdiction, “premised on the well established law
that this Board lacks jurisdiction over a direct appeal filed by a subcontractor absent
sponsorship of the claim by the prime contractor.”  Opposing dismissal, Avue acknowledges
that it is Carahsoft’s subcontractor under the FSS but argues that it is not an “ordinary
subcontractor,” in that, “regardless of whether Avue has privity [with FDA] via the FSS, it
. . . has [privity] via the EULA that FDA breached when it misappropriated Avue’s
intellectual property.”  Avue later argues that “a party can enter two contracts concerning the
same transaction . . . and [this] was done here” by FDA.  

CBCA 6360 3
Discussion
We agree with Avue that HHS’s jurisdictional argument does not address the
gravamen of Avue’s claim.  HHS’s argument that a subcontractor cannot pursue its own
claim under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2012), is correct
where applicable.  E.g., Erickson Air Crane Co. v. United States, 731 F.2d 810, 814 (Fed.
Cir. 1984); United States v. Johnson Controls, Inc., 713 F.2d 1541 (Fed. Cir. 1983).  The
twist here is that Avue is not pursuing its claim as a subcontractor.  Avue alleges that it is a
contractor.  More than this, Avue points to a specific writing (the EULA, allegedly
“incorporated” in the FSS contract) that it considers a government contract.  These
allegations of the existence of a contract suffice to take the claim out of the realm of
subcontractor claims and into the world of claims within our CDA jurisdiction, provided the
other jurisdictional requirements are met.  See, e.g., Engage Learning, Inc. v. Salazar, 660
F.3d 1346, 1353 (Fed. Cir. 2011) (holding that “a plaintiff [sic] need only allege the
existence of a contract to establish the Board’s jurisdiction under the CDA”); Gould, Inc.
v. United States, 67 F.3d 925, 929 (Fed. Cir. 1995) (“[T]here is no question that Gould’s
complaint alleges the existence of an express contract . . . . This is sufficient . . . to confer
[CDA] jurisdiction in the Court of Federal Claims.”). 
Whether Avue’s contract claim has merit is an issue for another day—as would be any
additional questions pertaining to our jurisdiction.  In particular, since this appeal may
require us to interpret the FSS contract with GSA, we encourage the parties to consider
whether Avue submitted its claim to the proper contracting officer.  See Sharp Electronics
Corp. v. McHugh, 707 F.3d 1367 (Fed. Cir. 2013); Consultis of San Antonio, Inc.
v. Department of Veterans Affairs, CBCA 5458, 17-1 BCA ¶ 36,701.
Decision
The motion to dismiss for lack of jurisdiction is DENIED.
   Kathleen J. O’Rourke     
KATHLEEN J. O’ROURKE
Board Judge
We concur:
  Patricia J. Sheridan            Kyle Chadwick           
PATRICIA J. SHERIDAN KYLE CHADWICK
Board Judge Board Judge