RESPONDENT’S MOTION TO DISMISS
 
FOR LACK OF JURISDICTION DENIED: December 8, 2010
 
CBCA 2054
 
LOCKHEED MARTIN ASPEN MED SERVICES, INC., 
Appellant, 
v. 
DEPARTMENT OF HEALTH AND HUMAN SERVICES, 
Respondent. 
Robert F. Pezzimenti, Associate General Counsel of Lockheed Martin, IS&GS 
Civil, Rockville, MD, counsel for Appellant. 
Jonathan A. Baker, Procurement, Fiscal and Information Law Branch, Office of 
the General Counsel, Department of Health and Human Services, Washington, DC,
 
counsel for Respondent.
 
Before Board Judges BORWICK , HYATT , and DRUMMOND .
 
BORWICK , Board Judge.
 
Respondent, the Department of Health and Human Services, moves to dismiss this 
appeal for lack of jurisdiction because the purported appellant, Lockheed Martin Aspen 
1Med Services, Inc. (LMAM or appellant) , is a subcontractor, and lacks privity to bring
suit as a prime contractor. Respondent maintains that only Medical Staffing Network 
(MSN) was the prime contractor for the contract at issue here. 
1 LMAM purchased Aspen Med Services and is the successor in interest to Aspen 
Med Services. 

 
           
             
                
             
              
          
            
            
          
       
              
             
             
              
              
                
              
          
             
             
               
     
            
                  
              
                
           
             
        
             
2 CBCA 2054 
LMAM opposes the motion, maintaining that, as a participant in a Contractor 
Team Arrangement (CTA), it has standing as a prime contractor to submit a certified 
claim to the contracting officer and to file a subsequent appeal before the Board. For the 
reasons stated below, we agree with appellant and deny respondent’s motion. 
Background 
Based on the appeal file and exhibits of the parties attached to the motion to 
dismiss and appellant’s opposition, and supplemental information requested by the Board, 
the Board finds the following jurisdictional facts relevant to the motion.
2 
On March 28, 2005, respondent issued a request for quotations (RFQ) for medical 
staffing services from qualified and experienced contractors via the General Services 
Administration’s (GSA’s)/Department of Veterans Affairs (VA’s) Federal Supply 
Schedule (FSS) contract for special item number 621 (GSA FSS SIN 621). 
3 Appeal File, 
Exhibit 1. The RFQ established a two-stage evaluation process, wherein vendors at the 
first evaluation stage were required to demonstrate that they could provide prices for the 
first fifty percent of the estimated quantity of hours in a temporary professional medical 
services (TPMS) worksheet. Id. at 100. Teaming was strongly encouraged to ensure that 
vendors met this threshold. Id. Any vendor who failed to meet the threshold would be 
eliminated from award. Id. at 109 (Question and Answer 39). The RFQ “strongly 
encouraged” offerors “to maximize teaming arrangements to propose coverage of all 
desired geographic service areas listed to perform the requirements of this RFQ.” Id. at 1. 
Respondent, however, reserved the right to make a single award, or a multiple award, 
whichever was determined to be in the best interests of the Government. Id. at 108 
(Question and Answer 38). 
The RFQ emphasized that by submitting a quotation the firm was certifying that 
the firm held a current GSA FSS contract for SIN 621. Id. at 2. Indeed, each quotation 
was required to include a copy of the firm’s GSA FSS contract. Id. 
2 When, as in this case, a motion to dismiss for lack of jurisdiction challenges the truth 
of alleged jurisdictional facts, the Board may consider relevant evidence beyond the 
pleadings to resolve disputed facts. Rockies Express Pipeline LLC v. Department of the 
Interior , CBCA 1821, 10-2 BCA ¶ 34,542. 
3 Special item number 621 is for Professional and Allied Healthcare Staffing Services. 

 
              
               
               
               
           
           
            
                
           
               
           
           
           
               
              
             
                   
               
               
               
          
              
       
           
            
              
                 
                
                
             
          
              
            
              
               
              
              
3 CBCA 2054 
Later in the RFQ respondent stated that if a CTA is proposed, the designated team 
leader must provide “one comprehensive RFQ response. . . on behalf of the entire team.” 
Appeal File, Exhibit 1 at 7-8. The RFQ referred vendors to a GSA document explaining 
the concept of a CTA. That document explains that a CTA differs from the traditional 
prime-subcontractor relationship because each member of the CTA has privity of contract 
with the Government and may interact directly with the Government. Appellant’s 
Opposition to Respondent’s Motion to Dismiss (Appellant’s Opposition), Exhibit 2 at 3. 
The RFQ also required a CTA template to be used in identifying the members of the CTA 
and emphasized that mere teaming arrangements between a prime and a subcontractor 
would not be considered CTAs and would not be considered part of the terms of any 
blanket purchase agreement awarded to the prime contractor. Id. 
Respondent issued amendment one to the RFQ to change certain pricing and 
staffing requirements and to incorporate answers to vendors’ questions. Appeal File, 
Exhibit 1 at 56. One vendor asked the consequences if it could not supply staffing 
requirements under the GSA FSS for SIN 621. Respondent stated that the vendor “should 
consider CTAs with other GSA SIN 621 schedule holders.” Respondent warned that if 
the vendor was unable to enter into a CTA with a SIN 621 FSS vendor and was not on the 
FSS for SIN 621, the vendor should not propose the requirements. Appeal File, Exhibit 1 
at 100 (Question and Answer 2). One vendor asked about forming a CTA to capture 
work under an FSS and asked if it could “serve as the prime contractor.” Respondent 
replied that “a prime/subcontractor relationship is different than a Contractor Teaming 
Arrangement” and referred the vendor to the GSA’s explanation of the CTA concept. Id. 
at 115 (Question and Answer 60). 
In response to a vendor question about the responsibilities of CTA members 
reporting FSS sales to GSA and remitting the industrial funding fee (IFF), respondent 
stated that each GSA FSS contract holder that was also a CTA member must report 
schedule sales to GSA and must remit the IFF. Id. at 116 (Question and Answer 64). 
One vendor asked, if a CTA is proposed and award is made to the team leader, whether 
all orders flow through the team leader or could be directly provided to a team member. 
This vendor also asked whether each member of the CTA would be equally and 
individually responsible for contract deliverables and system reports. Respondent replied 
that the CTA should “state in detail which team member is responsible for which aspect 
of the proposal.” Id. at 119 (Question and Answer 79). 
A response to the RFQ was submitted by MSN and its CTA partners that included 
Aspen Med Services. Appeal File, Exhibit 2 at 1. On September 9, 2005, respondent 
awarded a Blanket Purchase Agreement (BPA) to MSN for TPMS to be ordered under the 
BPA on an as-needed basis, as requested by all of respondent’s operating divisions. Id., 

 
                 
            
           
             
              
                
             
                
            
           
           
            
            
     
            
            
              
            
   
              
               
              
             
            
             
               
           
        
               
             
        
           
             
           
4 CBCA 2054 
Exhibit 3 at 385. The BPA did not obligate funds; rather; funds were to be obligated as 
individual orders were placed against the BPA. Id. at 386. 
Included in the BPA were agreements with each of MSN’s CTA partners, 
including Aspen Med, and the identification of Aspen Med’s FSS number. Appeal File, 
Exhibit 3 at 395. MSN was the team leader and chose to supply a single payment invoice. 
Id. at 396. However, the BPA provided for direct payments to each CTA team member if 
the unitary invoice indicated the GSA FSS number for the team member and the 
applicable product and service provided by the team leader and each team member. Id. 
Shortly after the award of the BPA, respondent’s officials met with MSN and 
Aspen Med personnel to discuss implementation of the BPA. Respondent’s officials 
stated that they were concerned with continuity of service at respondent’s Federal 
Occupational Health Service’s (FOH’s) Region D, and would issue a delivery order to 
MSN for those services, assuming that Aspen Med would continue providing them. 
Appellant’s Opposition, Exhibit 4. 
MSN and Aspen Med entered into a service agreement in which Aspen Med 
agreed to supply any FOH services within Maryland, Virginia, and the District of 
Columbia, upon the issuance of a delivery order from FOH or its agency support group, 
the Program Support Center (PSC). Appellant’s Opposition, Exhibit 23. MSN called 
Aspen Med a “subcontractor.” 
On or about March 13, 2006, respondent issued its first delivery order to MSN for 
TPMS for FOH’s Region D for a total award amount of eight million dollars. Declaration 
of Jennifer Marrion, Business Operations Manager for LMAM (Dec. 2, 2010) ¶ 2. MSN 
then passed the order to Aspen Med for fulfillment, since the LMAM FSS schedule 
contained all of the required labor categories, while the MSN schedule did not, 
particularly since MSN’s FSS schedule has no physicians. Marrion Declaration ¶¶ 2-3. 
Before the summer of 2010, MSN’s role in performing the order, so far as was apparent 
to respondent’s FOH, was limited to invoicing and other communications with the 
Government. Declaration of Colonel Kimberly Deffinbaugh, Contracting Officer’s 
Technical Representative (Dec. 1, 2010) ¶ 6. On or about July 2010, MSN began to 
provide TPMS, primarily nursing services, for Region D. Id. ¶ 7. 
During the course of contract administration, respondent’s officials directly 
interacted with LMAM. Respondent would discuss directly with LMAM: delivery order 
funding levels; changes to work hours schedules and addition of contract line items to 
provide for additional billings; cash awards to contractor employees; changes in personnel 

 
          
         
         
          
          
          
                
         
            
          
             
            
               
    
           
              
              
              
           
         
              
               
             
           
              
                
            
           
5 CBCA 2054 
service deliverables; cost estimates; and the staffing requirements and schedules for 
opening new sites. Appellant’s Opposition, Exhibits 6-10. 
Respondent’s officials, through its PSC, called LMAM personnel to verify 
LMAM’s FSS schedule pricing information. Complaint, Attachment 18. Respondent’s 
officials discussed rates for exercising options directly with LMAM personnel and 
LMAM provided respondent’s officials with proprietary information that LMAM did not 
want MSN officials to see. Appeal File, Exhibit 8 at 591. LMAM sent requests for 
equitable adjustments directly to respondent’s officials, particularly when the request 
would contain LMAM proprietary information. Id., Exhibit 9 at 613. Respondent’s 
officials corresponded directly with LMAM concerning rate changes based primarily on 
the application of the Service Contract Act. Appeal File, Exhibit 17 at 775-76. 
Additionally, LMAM tracked its FSS invoices under the delivery order and reported those 
sales to GSA and paid GSA the IFF mandated by the LMAM FSS contract. Marrion 
Declaration ¶ 6. 
On November 10, 2009, LMAM submitted by hand delivery a proprietary certified 
claim directly to the contracting officer seeking an increase in the contract price due to 
the allegedly late incorporation of Service Contract Act rates into the third option year. 
LMAM sent a courtesy copy to MSN. Appeal File, Exhibit 10; Declaration of Ariel 
McCabe, LMAM Senior Contracts Negotiator (Dec. 2, 2010) ¶ 5. 
Earlier, LMAM had submitted a non-proprietary and non-certified claim summary 
to MSN. McCabe Declaration ¶ 3. It was LMAM’s expectation that MSN would 
forward the summary to HHS, but at no point did LMAM request MSN to submit a 
certified claim to respondent, nor could it have, since LMAM never provided the full 
certified proprietary claim to MSN. Indeed, LMAM officials explicitly informed MSN 
that LMAM would provide the certified claim to respondent. Id. On November 9, 2009, 
MSN also submitted the claim summary to the contracting officer. Id. at ¶ 4. 
The claim involves increased costs for services only provided by LMAM and a 
two percent administrative fee MSN charged Lockheed for preparing invoices. Marrion 

 
             
          
           
             
             
            
             
            
            
       
            
              
                
               
            
             
              
   
             
             
          
              
             
            
              
              
              
               
            
 
            
  
6 CBCA 2054 
Declaration ¶ 4. 4 The respondent, by contracting officer’s decision dated March 23, 2010, 
addressed to MSN, not Lockheed, denied the claim. 
Discussion 
Respondent has submitted a motion to dismiss for lack of jurisdiction, contending 
that LMAM lacks privity with the Government. Appellant opposes the motion. When 
assessing such a motion, we should construe the allegations of the complaint favorably to 
the pleader. Roy Anderson Construction Inc. v. Department of Veterans Affairs , CBCA 
1884, et al., 10-2 BCA ¶ 34,485. If respondent, however, challenges jurisdictional facts 
upon which the complaint is based, we may consider relevant evidence beyond the 
pleadings to resolve disputed facts. Cedars-Sinai Medical Center v. Watkins , 11 F.3d 
1573 (Fed. Cir. 1993); Anderson Construction . 
In this case, LMAM has submitted an appeal from a contracting officer’s decision 
as a contractor in privity with the Government. Respondent does not agree that appellant 
is a contractor, and argues that LMAM is a subcontractor to MSN, and that only MSN has 
standing to bring the appeal. It is beyond dispute that the Contract Disputes Act provides 
that only contractors may appeal decisions of contracting officers, 41 U.S.C. §§ 601(4), 
605(a), and that only those in privity of contract with the Government may avail 
themselves of the act’s procedures. Winter v. FloorPro Inc. , 570 F.3d 1367, 1371 (Fed. 
Cir. 2009). 
LMAM maintains that as a member of a CTA providing services under the BPA 
and the subsequently issued delivery order, it stands in privity of contract with respondent 
and fully entitled to submit an appeal to the Board. 
In support of its position, appellant relies on the case of Key Federal Finance v. 
Department of Commerce , CBCA 412, 07-1 BCA ¶ 33,555. 
5 Key involved a contract 
4 Under the service agreement between MSN and LMAM, MSN charges LMAM a 
two percent administrative fee. Marrion Declaration ¶ 4. Consequently, in order to capture 
that fee, LMAM adds two percent to each labor category when preparing labor rates on 
invoices that MSN sends to respondent. Id. Because of this pricing structure, respondent 
never sees a separate line item for MSN’s administrative fee. MSN recoups that fee by 
remitting ninety-eight percent of the payments MSN receives from respondent to LMAM. 
Id. 
5 In a companion case, CBCA 411, the respondent was the General Services 
Administration. 

 
             
               
              
               
          
              
               
              
             
             
            
              
            
            
              
              
              
             
             
           
               
         
                
            
              
              
                
           
              
              
                
              
              
          
          
            
7 CBCA 2054 
where each member of the CTA provided services to respondent under its FSS vehicle 
that other members of the CTA were unable to provide in their respective FSS contracts. 
The solicitation required vendors to enter into CTAs to be eligible for award. 
The Board recognized that Key, as a member of a CTA, was in privity of contract 
with the Government because the respondent, the Department of Commerce, dealt 
directly with each team member. The Board also noted that the Department of Commerce 
assigned all monies to Key that were due the lead CTA member, and that the Department 
of Commerce stated that it would have awarded the contract to whichever party had been 
named the “prime contractor” in the CTA. Under those circumstances, the Board held 
that “a special relationship was created between Commerce and Key that went beyond the 
normal contract structure in which the Government only deals with the named contractor 
and that contractor deals with its subcontractor.” Key , 07-1 BCA at 166,184. 
Respondent distinguishes Key by arguing that, in this contract, entering into a CTA 
was not required, only encouraged, because in this case, respondent could have entered 
into multiple awards. Respondent’s Motion at 10, 13-14. Respondent argues that in Key, 
the Department of Commerce was indifferent to the identity of the firm designated as the 
“prime” within the CTA, while in this case the parties “respected the ordinary distance of 
the Government from the subcontractor.” Respondent’s Motion at 15. In this regard, 
respondent notes that the BPA in this appeal barely mentioned LMAM, that the award 
document designated MSN as the awardee, and that contract modifications were signed 
by MSN officials. Respondent’s Motion at 5-6. Appellant counters by stating that for all 
modifications involving LMAM, MSN obtained LMAM’s approval before signing them 
and that MSN did nothing but add a cover letter. Appellant’s Opposition at 11. 
Respondent’s attempts to distinguish the facts in Key are unpersuasive. The salient 
fact in Key was that the Department of Commerce contracted for services with a CTA, 
with each member providing services under its own FSS contract and with each member 
deemed by the Government to be in privity. In other words, each member of the CTA 
possessed an existing government contract and was providing services to respondent via 
that contract. The contractual relationship did not stem from a prime contract that flowed 
down to a subcontractor through a subcontract between a prime and a subcontractor. 
That is the case here. LMAM entered into a CTA with MSN, just as Key had 
entered into a CTA with its team leader, JRTI. LMAM provided services to respondent 
through its FSS contract, incorporating the prices of that contract into the BPA. Indeed, 
respondent--in question and answer 60 to the solicitation--told vendors who were 
competing for the requirement that CTA members were not considered subcontractors, 
and referred vendors to GSA’s document, the same document referenced in Key, which 

 
             
            
            
               
            
             
               
            
             
           
        
              
             
             
            
               
            
            
             
              
            
            
                
            
          
               
              
               
            
            
             
      
8 CBCA 2054 
states that CTA members are in privity with the Government. Respondent made this 
evident when it told competing vendors in questions and answers incorporated into the 
solicitation that as CTA members, they would be responsible for reporting their schedule 
sales to GSA and remitting the IFF. Lockheed did, indeed, as a prime contractor would, 
report schedule sales to GSA and remit the IFF to GSA. 
Respondent further seeks to distinguish Key by arguing that use of a CTA was 
mandatory in Key, but not in this case. That is an unconvincing distinction. While 
respondent reserved the right to make multiple awards, the whole purpose of the 
procurement was to provide nationwide TPMS through a single BPA, to which end CTA 
arrangements were strongly encouraged. Finally, respondent argues that it kept the 
traditional distance maintained between the Government and a subcontractor. 
Respondent’s Motion to Dismiss at 15. With all respect to respondent, this is manifestly 
not the case. Respondent dealt with LMAM directly on vital aspects of contract 
performance, including pricing, scheduling of work, and the addition of new sites for the 
provision of TPMS services. It is true that respondent maintained certain formalities 
when it issued contract modifications in the name of MSN only, but that does not change 
the reality of respondent’s consistent dealings with LMAM in the same way the 
Government would deal with a prime contractor. Furthermore, in submitting its certified 
claim directly to respondent, LMAM acted as a prime contractor, with only a courtesy 
copy to MSN, explicitly stating to MSN that it would submit the complete proprietary and 
certified claim to respondent. Although the contracting officer addressed her decision to 
MSN denying LMAM’s claim, respondent must have known that the claim belonged to 
LMAM, not to MSN, since it was LMAM who certified the claim and since it was an 
LMAM official who delivered the certified claim to the contracting officer. 
The Board’s decision in Wackenhut, International. Inc. v. Department of State , 
CBCA 1235, 09-2 BCA ¶ 34,255, does not dictate a different result. In Wackenhut , we 
dismissed the appeal for lack of jurisdiction because a member of a joint venture, rather 
than the joint venture itself, submitted the appeal. However, that case did not involve two 
members of a CTA, each providing services under its own contract. 
In short, LMAM was in privity with respondent, and submitted a properly certified 
claim to the contracting officer. The contracting officer issued a decision from which 
appellant took a timely appeal. 

 
     
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9 CBCA 2054 
Decision 
Respondent’s motion to dismiss is DENIED . 
ANTHONY S. BORWICK 
Board Judge 
We concur: 
_____________________________ _________________________________ 
JEROME M. DRUMMOND CATHERINE B. HYATT 
Board Judge Board Judge