DISMISSED FOR LACK OF JURISDICTION: February 28, 2014
CBCA 2452
OMNI PINNACLE, L.L.C.,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
Adrian A. D’Arcy of Shields Mott Lund, L.L.P., New Orleans, LA, counsel for
Appellant.
Josh A. Newton, Office of General Counsel, Department of Agriculture, Little Rock,
AR, counsel for Respondent.
Before Board Judges HYATT, DRUMMOND, and WALTERS.
HYATT, Board Judge.
Omni Pinnacle, L.L.C. (Omni), appellant, maintains that it had an implied-in-fact
contract with respondent, the Natural Resources Conservation Service (NRCS), a component
of the Department of Agriculture, for channel excavation and removal of sediment from
Bayou Terre Aux Boeufs, Louisiana.  Funding for the services performed by Omni was to
be provided under a cooperative agreement between NRCS and St. Bernard Parish (the
Parish), Louisiana, pursuant to the Emergency Watershed Protection Program.  Omni claims


CBCA 2452 2
entitlement to an adjustment of its contract price because of inaccurate estimates of the
quantity of sediment to be removed. 
When the appeal was docketed, respondent promptly moved for its dismissal,
asserting two grounds to support a finding that the Board lacked jurisdiction to entertain it:
(1) there was no implied or express contract between Omni and NRCS; and (2) even
assuming arguendo that Omni could establish an implied contract, it would not qualify as
a procurement contract within the meaning of the Contract Disputes Act (CDA).  Because
Omni had alleged the existence of an implied procurement contract, the Board denied the
initial motion to dismiss.  Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1353-54 (Fed.
Cir. 2011).  Given the early stage of proceedings, the Board instead permitted discovery to
allow Omni the opportunity to develop its case.  Omni Pinnacle, L.L.C. v. Department of
Agriculture, CBCA 2452, 12-2 BCA ¶ 35,118.  The Board expressly stated that “[o]nce
discovery is completed, it may be appropriate to reassess whether a procurement contract
was created between the two parties.”  Id. at 172,442.
Following the conclusion of discovery, the Government filed a motion for summary
relief, asserting that there are no material facts in dispute and that there is no implied
contract as a matter of law.  It also  renewed its motion to dismiss for lack of jurisdiction on
the ground that Omni has not, even with the benefit of discovery, established that the alleged
implied contract was a procurement contract that operated to provide a direct benefit to the
Federal Government.  For the reasons stated, we now dismiss this appeal for lack of
jurisdiction.
Background
Under the Emergency Watershed Protection Program, section 216 of Public Law
81-516, and title IV of the Agricultural Credit Act of 1978, Public Law 95-334, NRCS
provides funding for emergency measures required to safeguard lives and property from
floods, drought, and the results of erosion on any watershed whenever a natural occurrence
is causing or has caused a sudden impairment of the watershed.  NRCS’s financial assistance
is available only to a “qualified sponsor,” either a state or a political subdivision of a state.
On April 17, 2009, NRCS and the Parish entered into a cooperative agreement under
which NRCS agreed to provide financial and other assistance to the Parish for the purpose
of installing emergency watershed protection measures to relieve hazards and damage created
by Hurricane Katrina.  The cooperative agreement provided that the Parish was to be
responsible for, inter alia, contracting for the watershed improvements to be performed,
paying the contractor(s), and taking reasonable measures necessary to dispose of any and all

CBCA 2452 3
contractual disputes, claims, and litigation resulting from the projects listed in the
cooperative agreement.
In March 2010, the Parish executed a contract with Omni to perform channel
excavation and sediment removal of Bayou Terre Aux Boeufs, a major stream within the
Parish.  Under this contract, Omni was to be paid for its work by the Parish.  Under the terms
of the cooperative agreement, NRCS would reimburse the Parish for approved expenses
incurred by the Parish for the watershed improvements made by Omni under its contract with
the Parish.
The contract between Omni and the Parish specified that the work to be performed by
Omni would be reimbursed on a stated price per cubic yard basis.  The contract estimated
that there would be about 119,580 cubic yards of sediment to be removed from the Bayou. 
According to Omni, the specifications were inaccurate and only 49,888.69 cubic yards of
sediment were ultimately required to be removed.
In the early stages of the project, Omni realized that the estimate of work was
overstated and requested a meeting to discuss, among other matters, the inaccurate estimate
and the need to renegotiate the contract price.  A meeting took place on June 22, 2010, and
was attended in person by representatives of Omni and the Parish, including the project
engineers.  A representative of NRCS participated by telephone.  At the meeting, Omni
voiced its reluctance to move forward based on the original contract price.  The NRCS
representative, who was a contracting officer with a small dollar warrant at that time,
suggested that  Omni should either attempt to renegotiate the price at that time or perform
the work and submit its actual costs at the end of the project.  Omni interpreted this to mean
NRCS would pay Omni on a cost-reimbursement basis.
Omni maintains that, in reliance on this understanding, it proceeded to complete the
work without renegotiating the price.  Omni further alleges that NRCS at all times was fully
directing the administration of the contract, and that, taken as a whole, NRCS’s actions
established an implied-in-fact contract with Omni.
At the conclusion of contract performance, Omni sought to get paid for its work on
a cost-plus-fee basis, and submitted a request for payment to NRCS.  The agency responded
that it had no contract with Omni and advised that the Parish was the party responsible for
paying for the work.  Subsequently, Omni submitted a certified claim to an NRCS
contracting officer and requested a final decision pursuant to the Contract Disputes Act
(CDA), 41 U.S.C. §§ 7101-7109 (Supp. IV 2011).  The NRCS representative responded that,
because the contract was between Omni and the Parish, she had no authority to issue a final
decision.  Omni then appealed the deemed denial of its claim to the Board.

CBCA 2452 4
Discussion
Respondent has styled its motion as one to dismiss for failure to state a claim upon
which relief can be granted or, alternatively, as one for summary relief.  It states the
following reasons as support for the motion: (1) Omni cannot establish the existence of a
contract with NRCS; (2) even if there were a contract between NRCS and Omni, the contract
would lack the federal procurement aspect required by the CDA, and (3) based on undisputed
facts and evidence, the NRCS employee who allegedly contracted with Omni had no actual
authority to enter into such a contract.  Omni opposes the motion.
Respondent initially questioned whether the Board has subject matter jurisdiction to
entertain this appeal.  The Board allowed discovery on both the ability to prove an implied
contract and as to whether a procurement contract would have been created.  Regardless of
whether an implied contract may be established, we have no authority to consider the case
unless appellant can first establish that any contract that might have been created is indeed
a procurement contract under the CDA.  The Board, before considering any other basis for
summarily disposing of this appeal, must first ascertain whether it in fact has the requisite
jurisdiction to proceed.  See Monster Government Solutions, Inc. v. Department of Homeland
Security, DOTBCA 4532, 06-2 BCA ¶ 33,312, at 165,155 (“When jurisdiction is lacking, we
cannot proceed to decide a case.  Our only function is to announce the lack of jurisdiction
and dismiss the case.”) (citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83,
94 (1998)).
Once sufficient facts are presented to bring into question the jurisdiction of the Board
to hear the dispute, it is incumbent upon appellant to come forward with evidence
establishing jurisdiction.  NRCS has made a convincing showing that, even if Omni could
prove the existence of an implied contract with NRCS, it was not a procurement contract. 
Omni now bears the  burden to establish subject matter jurisdiction by a preponderance of
the evidence. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936);
Reynolds v. Army & Air Force Exchange Service, 846 F.2d 746, 748 (Fed. Cir. 1988); Red
Gold, Inc. v. Department of Agriculture, CBCA 2259, 12-1 BCA ¶ 34,921 (2011);
Opportunities for the Aging Housing Corp. v. Department of Housing and Urban
Development, CBCA 1501, 10-1 BCA ¶ 34,311, at 169,488 (2009).
The Board’s subject matter jurisdiction under the CDA “applies to any express or
implied contract . . . made by an executive agency for” -
(1) the procurement of property, other than real property in being;
(2) the procurement of services;

CBCA 2452 5
(3) the procurement of construction, alteration, repair or
maintenance of real property; or
(4) the disposal of personal property.
41 U.S.C. § 7102(a).  The Court of Appeals for the Federal Circuit has explained that the
term “procurement” refers to “the acquisition by purchase, lease or barter, of property or
services for the direct benefit or use of the Federal Government.”  Wesleyan Co. v. Harvey,
454 F.3d 1375, 1378 (Fed. Cir. 2006) (quoting New Era Construction v. United States, 890
F.2d 1152, 1157 (Fed. Cir. 1989)); accord Inversa, S.A. v. Department of State, CBCA 440,
07-2 BCA ¶ 33,690, at 166,778-79.  Furthermore, under the Federal Acquisition Regulation
(FAR), a “contract” is defined to be “a mutually binding legal relationship obligating the
seller to furnish the supplies or services (including construction) and the buyer to pay for
them . . . .  Contracts do not include grants and cooperative agreements covered by 31 U.S.C.
§ 6301, et seq.”  48 CFR 2.101 (2011). 
The threshold issue here is whether the Federal Government may be said to have
received a direct benefit from the work performed by Omni under its contract with the Parish,
such as to permit us to consider whether an implied contract for these dredging services was
created.  
As we pointed out in our earlier decision, the use of cooperative agreements by a
Federal agency is governed by the Federal Grants and Cooperative Agreements Act, which
addresses the distinction between a grant and a procurement, stating that:
An executive agency shall use a cooperative agreement as the legal instrument
reflecting a relationship between the United States Government and a State, a
local government, or other recipient when -
(1) the principal purpose of the relationship is to transfer a
thing of value to the State, local government, or other recipient
to carry out a public purpose of support or stimulation
authorized by a law of the United States instead of acquiring (by
purchase, lease, or barter) property or services for the direct
benefit or use of the United States Government; and
(2) substantial involvement is expected between the
executive agency and the State, local government, or other
recipient when carrying out the activity contemplated in the
agreement. 

CBCA 2452 6
31 U.S.C. § 6305 (emphasis added).  Omni Pinnacle, 12-2 BCA at 172,441; see also CMS
Contract Management Services. v. United States, 110 Fed. Cl. 537, 552-53 (2013).
We acknowledged in the Omni Pinnacle decision that “[o]rdinarily, an arrangement
such as the one originally contemplated by NRCS and the Parish would not give rise to a
cause of action under the CDA.  The underlying arrangement, a cooperative agreement
between the Federal Government and a local government, is a use of grant funds not subject
to the provisions of the CDA.”  12-2 BCA at 172,441 (citing Nutritional Support, Inc.,
AGBCA 2002-141-1, 03-1 BCA ¶ 32,115 (2002)).
Here, the express contract for the procurement of services was the contract between
Omni and the Parish.  The Parish, so far as we know, owned the property and procured the
work.  The Parish, not NRCS, received the direct benefit or use of Omni’s work.  The
cooperative agreement between NRCS and the Parish was not one for the procurement of
services by an executive agency.  The cooperative agreement was for the financing of
procurement of such work by a non-federal agency -- the Parish.1
Omni has directed our attention to City of Cincinnati v. United States, 39 Fed. Cl. 271
(1997), suggesting that this decision establishes that local storm drainage systems confer a
benefit on the federal government.  This case was filed by the City of Cincinnati to recover
an amount charged for the provision of storm drainage services to property owned and
occupied by the Federal Government within the city.  The issue was not whether, in that
capacity, the Government benefited from the services, but whether the charge was a tax or
a user fee.  At best, one may infer from this case that utilities and other systems of this nature,
customarily provided by a municipality, confer a direct benefit on the Federal Government
as a user of the services.  Omni has not contended that the Government owns or occupies any
property affected by the bayou dredged by Omni, nor has it identified any benefit other than
that NRCS has accomplished its mission to protect the watershed as a result of the dredging
work performed by Omni.  This is insufficient to demonstrate that there was a procurement
contract under the meaning of the CDA.  
1 It is well established “that the government’s involvement in the financing and
supervision of a contract between a public agency and a private contractor does not create
a contract between the government and the contractor, for the breach of which the contractor
may sue the government.” Giljoy Technology, Inc. v. Department of Housing and Urban
Development, CBCA 1988, 10-2 BCA ¶ 34,552, at 170,401 (quoting New Era Construction
v. United States, 890 F.2d 1152, 1155 (Fed. Cir. 1989), aff’g New Era Construction, HUD
BCA 88-3406-C6, 89-1 BCA ¶ 21,376 (1988)).

CBCA 2452 7
Discovery has been completed.  Omni has neither identified nor produced evidence
of any particular direct benefit to NRCS.  Nor has it effectively rebutted the Government’s
position that the primary purpose of the cooperative agreement and any NRCS involvement
in the arrangement was to finance the Parish’s acquisition of services for the primary benefit
of the Parish.  
Omni has failed to meet its burden to show that any implied-in-fact contract here
would have been a procurement contract entered into for the direct benefit of the Federal
Government.  We thus have no jurisdiction to entertain this matter any further.
Decision
This appeal is DISMISSED FOR LACK OF JURISDICTION.
__________________________________
CATHERINE B. HYATT
Board Judge
We concur:
_______________________________ _________________________________
JEROME M. DRUMMOND RICHARD C. WALTERS
Board Judge Board Judge