MOTION TO DISMISS DENIED:  December 20, 2018
CBCA 5866
IMMIXTECHNOLOGY, INC. ON BEHALF OF SOFTWARE 
AG GOVERNMENT SOLUTIONS, INC.,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Respondent.
Tenley A. Carp, Sara M. Lord, and Samuel M. Shapiro of Arnall Golden Gregory,
LLP, Washington, DC, counsel for Appellant.
Murphy H. Peterson, Jr., Office of the Solicitor, Department of the Interior,
Herndon, VA; and Sam Q. Le, Office of General Counsel, Small Business
Administration, Washington, DC, counsel for Respondent.
Before Board Judges BEARDSLEY, HYATT, and ZISCHKAU.  
ZISCHKAU, Board Judge.
This appeal involves a claim by appellant, immixTechnology, Inc. (immix), that
the Small Business Administration (SBA) breached various software licensing terms in a
task order issued by the Department of the Interior (DOI) under a General Services
Administration (GSA) Federal Supply Schedule (FSS) contract.  The DOI contracting
officer issued a final decision denying the claim.  Immix appealed.  Respondent filed a
motion to dismiss the appeal for lack of jurisdiction, arguing that immix’s breach claim is
really a copyright infringement claim not subject to our jurisdiction.  In addition,
respondent argued that the DOI contracting officer was not authorized to render a


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decision on the immix claim because only a GSA contracting officer is authorized to
render a decision over a dispute relating to the terms and conditions of a FSS contract.1
Based on the record before us, we conclude that the dispute involves the terms of
mod. 1 and does not involve any disputed terms of the FSS contract.  Therefore, we
conclude that the DOI contracting officer was authorized to issue a final decision and that
CBCA 5866 is properly before us.  We also reject respondent’s argument that the breach
of contract claims raised by immix under the Contract Disputes Act (CDA), 41 U.S.C. §§
7101-7109 (2012), are preempted by the Copyright Act of 1976, 17 U.S.C. §§ 101-810. 
We deny respondent’s motion.
Background
On March 26, 2013, under a FSS contract, DOI issued to immix an order, on
behalf of SBA, for software support services and software licenses.  According to the
DOI contracting officer, not long after performance on the order began, SBA began
planning for an IT infrastructure update, which is commonly known as a “hardware
refresh.”  Recognizing that the hardware refresh would require different software
licenses, the SBA engaged in discussions with immix’s software vendor, Software AG
Government Solutions (Software AG), to determine exactly what software and
maintenance SBA would need for the hardware refresh.  These discussions led to
Software AG submitting to SBA a “Budgetary Cost Proposal” on December 3, 2013,
identifying “all of the software/maintenance items needed by the SBA along with the
associated processor core types and operating system.”  The price for the new items
totaled $474,000 for each of the first three years and $284,000 for the last year. 
According to the DOI contracting officer, obtaining these items “was accomplished via
modification to the existing Order with Immix” issued on January 28, 2014, and
incorporated a quote from immix.  The contracting officer claims that “while the quote
contains the same items, it made no reference to the Budgetary Cost Proposal, specific
processor core types or operating systems . . . [and that] the items in the Immix quote
1 During proceedings here, immix submitted substantially the same claim to a GSA
contracting officer as a protective measure.  A GSA contracting officer issued a decision
concluding that the claim in dispute did not implicate the FSS terms and conditions, but
rather the terms and conditions found in modification no. 1 (mod. 1) of the DOI task order. 
The GSA contracting officer stated that, “to the extent that DOI breached [immix’s] Schedule
70 Contract, the GSA contracting officer denies [immix’s] claim.”  Immix’s appeal of the
GSA final decision was docketed here as CBCA 6317.

CBCA 5866 3
were expressly identified as being licensed on a ‘CPU’ [central processing unit] basis.” 
Immix contests this interpretation of mod. 1.
Immix claims that SBA representatives admitted to exceeding the software
licenses contained in mod. 1.  When negotiations between the parties to resolve the matter
failed, immix submitted its certified claim to DOI on April 12, 2017, alleging that the
SBA exceeded the number of software licenses purchased and used the software on
unlicensed servers, on an unlicensed operating system, and in unlicensed system
environments.  The DOI contracting officer issued a final decision denying the claim on
August 14, 2017, and that decision was appealed to us.
On August 6, 2018, respondent filed a motion to dismiss the appeal for lack of
jurisdiction and moved to stay discovery.  Thereafter, immix submitted substantially the
same claims to a GSA contracting officer.  The issues raised by respondent’s motion have
been fully briefed by the parties.  In its briefs, respondent asserts that (1) our jurisdiction
is preempted by the Copyright Act, and (2) the DOI contracting officer should have
referred the claim to a GSA contracting officer for a final decision.2
The Board now addresses the jurisdictional issues raised by respondent in CBCA
5866.
  
1. The Applicability of the Copyright Act’s Preemption Provision
Although immix did not raise any copyright infringement claims in its claim
submissions to the DOI contracting officer, respondent argues that the preemption
provision of section 301(a) of the Copyright Act prevents the Board from exercising its
CDA jurisdiction to review immix’s breach claim.  Under the CDA, the Board has
jurisdiction “to decide any appeals from a decision of a contracting officer of any
executive agency . . . relative to a contract made by that agency.”  41 U.S.C. §
7105(e)(1)(B).  
Nothing in the Copyright Act supports respondent’s position, which
mischaracterizes immix’s claim.  The Copyright Act contains two provisions relating to
preemption.  The first states: “[A]ll legal or equitable rights that are equivalent to any of
2 On October 26, 2018, immix received the GSA contracting officer’s final decision
under the GSA schedule contract, which concluded that immix’s claims are based on the
terms and conditions of mod. 1 and do not implicate any conflicting terms and conditions of
immix’s FSS contract with GSA.  Immix appealed the GSA final decision. 

CBCA 5866 4
the exclusive rights within the general scope of copyright as specified by section 106 . . .
are governed exclusively by this title . . . [and] no person is entitled to any such right or
equivalent right in any such work under the common law or statutes of any State.”  17
U.S.C. § 301(a).  The second relevant provision reads: “Nothing in this title annuls or
limits any rights or remedies under any other Federal statute.”  Id. § 301(d).
Reading these two provisions together, the Copyright Act does not preempt other
federal rights-conferring statutes such as the CDA, which creates a statutory right for
contractors to appeal the final decisions of contracting officers.  Brisbin v. United States,
629 F. App’x 1000, 1005 (Fed. Cir. 2015) (“[T]he district court’s error effectively denied
Plaintiff of his statutory right to judicial review of the [contracting officer’s] denial of at
least one of his claims.”); Judkins, GSBCA 6164, 81-2 BCA ¶ 15,350, at 76,041 (The
CDA “is an exclusive statutory scheme creating both a right (the statutory right of appeal
to an agency board) and a limitation on its exercise (the ninety-day appeal period).”),
overruled on other grounds by Cosmic Construction Co. v. United States, 697 F.2d 1389,
1390 (Fed. Cir. 1982); Warren Beaves, DOT BCA 1324, 83-1 BCA ¶ 16,232, at 80,647
(Under 41 U.S.C. § 7104(a), a contractor “has the statutory right to appeal to the Board.”).
Further, the Copyright Act could not preempt the CDA because Congress’ power
to “preempt” a law is based on the Supremacy Clause of Article VI of the United States
Constitution, Louisiana Public Service Commission v. Federal Communications
Commission, 476 U.S. 355, 368 (1986), and “one federal statute does not preempt
another.”  Randolph v. IMBS, Inc., 368 F.3d 726, 730 (7th Cir. 2004).  Accordingly, we
have jurisdiction under the CDA to resolve immix’s breach of contract claim.
2. Whether the Board Requires a GSA Contracting Officer’s Final Decision
This Board has jurisdiction over appeals from a final decision of a contracting
officer relative to a contract made by that agency.  41 U.S.C. § 7105(e)(1)(B). 
Respondent claims that the final decision of the DOI contracting officer was inadequate
to grant jurisdiction.  Under respondent’s theory, the ordering agency should have
forwarded the dispute to the GSA contracting officer for a final decision under
procedures outlined in 48 CFR 8.406-6(b) (2016) (FAR 8.406-6(b)).  Those procedures
apply to disputes involving task orders under schedule contracts:
(a) Disputes pertaining to the performance of orders under a schedule
contract.
(1) Under the Disputes clause of the schedule contract, the ordering
activity contracting officer may–

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(i) Issue final decisions on disputes arising from performance
of the order (but see paragraph (b) of this section); or
(ii) Refer the dispute to the schedule contracting officer.
. . . .
(b) Disputes pertaining to the terms and conditions of schedule contracts. 
The ordering activity contracting officer shall refer all disputes that relate to
the contract terms and conditions to the schedule contracting officer for
resolution under the Disputes clause of the contract and notify the schedule
contractor of the referral.  
FAR 8.406-6(a)–(b).  Respondent asserts that this dispute pertains to the terms and
conditions of the schedule contract, and that the DOI contracting officer was obligated to
comply with the referral requirement under 8.406-6(b).  
Under the provision cited by respondent, “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.” 
Sharp Electronics Corp. v. McHugh, 707 F.3d 1367, 1373 (Fed. Cir. 2013).  If any of
immix’s claims involve a disputed interpretation of the schedule contract, the Board
requires a final decision from the schedule contracting officer to maintain jurisdiction. 
FAR 8.406-6(b); Sharp Electronics, 707 F.3d at 1373; Consultis of San Antonio, Inc. v.
Department of Veterans Affairs, CBCA 5458, 17-1 BCA ¶ 36,701; Xerox Corp. v.
General Services Administration, CBCA 3964, 15-1 BCA ¶ 36,052.  An ordering activity
contracting officer, however, may apply provisions of the schedule contract when the
meaning of the provisions is undisputed.  Sharp Electronics, 707 F.3d at 1374.
Based on our review of the record, including the GSA contracting officer’s final
decision dated October 26, 2018, we disagree with respondent’s characterization of this
dispute as one involving contested interpretations of the schedule contract.  In its decision
denying the claim, the GSA contracting officer observed that “[a]ll the items in dispute
relate to DOI’s delivery order, not immixTechnology’s Schedule 70 contract.”  We
conclude that the terms of mod. 1 will guide our resolution of the appeal.  The schedule
contract is silent regarding the following issues at the core of the dispute:  (1) the number
of licenses granted to the ordering agency, (2) the environments in which the licenses
allowed the software to be run, (3) the processor types covered by the licenses, and (4) the
operating systems covered by the licenses.  

CBCA 5866 6
The number of software licenses and the licensed environments are both indicated
in mod. 1.  The schedule contract merely includes a “Scope of Use” provision that
requires the ordering agency to comply with the specifications of mod 1.  The schedule
contract only mentions an operating system and licensed environments in the context of
the agency’s requirement to provide notice if either changes.  In this case, the license-
conferring document is mod. 1.  Restrictions regarding processor types also do not appear
on the schedule contract; however, they are referenced in mod. 1.  
A central issue in this dispute is whether the licenses granted to DOI/SBA are on a
per-CPU (central processing unit) or per-processor core basis.  The definition of
“processor core” and “CPU” are stated in a section of mod. 1 called “License
Restrictions/Notes.”  “Operating system” is also discussed in the same document:
The proposal Software set forth above is restricted to use on the designated
operating system(s) specified above; provided, however, that if the specified
operating system(s) is not identified in the Documentation for a specific
product (or product component) as a supported operating system then the
product (or product component) in question is restricted to use on the
operating system(s) specified its [sic] Documentation.
The schedule contract terms, which are general in scope, do not address whether the
software was licensed for installation on a CPU or core processor basis.  
Respondent also cites appellant’s reference to provisions of the schedule contract
as sufficient to require a final decision from a GSA contracting officer.  In its notice of
appeal and initial claim, appellant cites the following provision from the Scope-of-Use
provision of the schedule contract:  “At no time will Ordering Activity permit the
Software to be used in excess of the usage specified under these terms, including, without
limitation, the task or delivery order.”  The fact that appellant includes a provision from
the schedule contract in its claim does not raise a jurisdictional problem under Sharp
Electronics, since the ordering agency contracting officer is capable of applying
undisputed provisions of the schedule contract without being required to refer the dispute
to the schedule contracting officer.  See Sharp Electronics, 707 F.3d at 1374.  The
schedule contract is not entirely irrelevant to items purchased under it; however, there are
no terms of the schedule contract that are implicated in the disputes at issue in this appeal
or that conflict with the terms of mod. 1.  

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Decision
Accordingly, respondent’s motion to dismiss CBCA 5866 for lack of jurisdiction is
DENIED.
  Jonathan D. Zischkau    
JONATHAN D. ZISCHKAU
Board Judge
We concur: 
    Erica S. Beardsley                            Catherine B. Hyatt        
ERICA S. BEARDSLEY CATHERINE B. HYATT
Board Judge                                                              Board Judge