THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND
IS BEING PUBLICLY RELEASED IN ITS ENTIRETY ON AUGUST 14, 2023
COUNTERCLAIM DISMISSED:  August 3, 2023
CBCA 7670
F.H. CANN & ASSOCIATES, INC.,
Appellant,
v.
DEPARTMENT OF EDUCATION,
Respondent.
James C. Fontana and L. James D’Agostino of Fontana Law Group, PLLC, Tysons,
VA; and David R. Warner and Heather R. Mims of Warner PLLC, Reston, VA, counsel for
Appellant.
Paula Hughes and Marta M. Rajchel, Office of the General Counsel, Department of
Education, Washington, DC, counsel for Respondent.
Before Board Judges BEARDSLEY (Chair), GOODMAN, and ZISCHKAU. 
GOODMAN, Board Judge. 
Appellant, F.H. Cann & Associates, Inc., has moved to dismiss the counterclaim of
unjust enrichment asserted by respondent, the Department of Education, in its answer.  We
dismiss the counterclaim.


CBCA 7670 2
Background
In 2014, respondent awarded to appellant a contract for twelve private collection
agency (PCA) services, with respect to federal student loan borrowers over numerous federal
student loan programs, with a contract period of performance of ten years—a five-year base
period commencing September 30, 2014, and a single five-year option period commencing
October 1, 2019, and scheduled to end on September 29, 2024.  As a result of the COVID-19
pandemic, Congress enacted the Coronavirus Aid, Relief, and Economic Security (CARES)
Act, Public Law No. 116-136, on March 27, 2020, which imposed a moratorium on federal
student loan repayments and involuntary collections until September 30, 2020 (moratorium). 
As a result of the moratorium, appellant alleges that its performance of the contract was
impacted adversely, including by respondent’s directives to stop certain work and perform
other work not required by the contract.  Complaint ¶¶ 1-34. 
On December 22, 2020, appellant submitted to the contracting officer a request for
equitable adjustment (REA), which was revised on March 15, 2021, seeking compensation
for the costs of the alleged adverse impact.  In response, respondent offered a settlement
amount which appellant declined.  By letter dated November 30, 2021, respondent
terminated the contract for convenience, which respondent alleges was a partial termination
for convenience.  Appellant alleges that it continued to perform work under the contract as
directed by respondent.  On April 1, 2022, appellant submitted to the contracting officer a
termination settlement proposal (TSP), which incorporated the REA as well as
termination-related amounts.  The TSP requested amounts associated with and caused by the
termination.  On September 19, 2022, appellant submitted to the contracting officer a request
for a contracting officer’s final decision (claim), which incorporated the TSP and
attachments, including the REA and its attachments.  On December 21, 2022, respondent’s
contracting officer issued a final decision (COFD), denying the claim for the most part but
finding appellant entitled to a small portion of the amount sought.  Complaint ¶¶ 35-49.
Appellant appealed the COFD to this Board on February 8, 2023, and filed its
complaint on March 3, 2023.  Respondent’s answer, filed on April 10, 2023, contained two
references to “unjust enrichment.”  First, respondent’s answer detailed the information in the
COFD as to appellant’s performance of the contract and revenue after the enactment of the
CARES Act, including an alleged spike in revenue as the result of the moratorium, and
concluded that appellant “has been fully compensated for work performed under the
Contract, and to provide additional compensation for costs [appellant] claims[1] to have
1 Presumably this does not include the amount which the COFD calculated was
due appellant.

CBCA 7670 3
incurred as a result of Force Majeure would result in the unjust enrichment of [appellant].” 
Answer at 21-22 (emphasis added).  Also, on the last page of the answer, under the heading
“Counterclaims,” respondent has listed “10. Unjust Enrichment,” with no further
explanation.2  Id. at 47.
Appellant filed a motion to dismiss the counterclaim, alleging that respondent had not
issued an appealable final decision containing a government claim against appellant for
unjust enrichment nor had respondent alleged any facts supporting a claim for unjust
enrichment.  Appellant’s Motion to Dismiss Counterclaim at 1-2. 
In respondent’s opposition to appellant’s motion, respondent reiterated the
information that it detailed in its answer and that the contracting officer considered in
determining an offer of payment to appellant, as stated in the COFD, which respondent
alleges supports its counterclaim for unjust enrichment.  Respondent summarized its position
as follows:
[T]he elements for unjust enrichment are as follows:  Respondent providing
something of value to Appellant, Respondent acknowledging, accepting, and
benefitting from what was provided, and the inequities that would occur for
Respondent to continue to enjoy that benefit without compensation. 
Respondent alleges the following facts in support of its counterclaim of unjust
enrichment.
Respondent provided Appellant increased income at a reduced
effort as quoted in the Final Decision.
Respondent acknowledged and agreed to the benefit through
continued performance under the contract.
It would be inequitable to compensate Appellant for its claimed
damages under the CARES Act while also allowing the
Appellant to enjoy the benefits of the law.
Respondent’s Opposition to Appellant’s Motion to Dismiss at 2-3 (emphasis added).
2 This followed a list of nine “Affirmative Defenses,” numbered 1-9.  Answer
at 46-47.

CBCA 7670 4
Discussion
The information and allegations in the COFD and respondent’s answer upon which
respondent relies to establish its counterclaim of unjust enrichment are a recitation of reasons
why respondent believes appellant has been adequately compensated under the contract and
would only be due the additional amount offered in the COFD.  The information and
allegations do not state that appellant has been unjustly enriched.  Rather, respondent in its
answer and opposition to appellant’s motion to dismiss the counterclaim opines that appellant
would be unjustly enriched if its claim were to be granted above the amount offered in the
final decision.  Such contingent statements with regard to an event that has not occurred do
not support or establish a government claim for unjust enrichment. 
 Respondent may continue to assert the information and allegations stated in the COFD
and the answer as affirmative defenses to appellant’s claim but not as a counterclaim for
unjust enrichment.3
Decision 
The counterclaim for unjust enrichment is DISMISSED.
    Allan H. Goodman        
ALLAN H. GOODMAN
Board Judge
3 Even if it were determined to be a valid counterclaim for unjust enrichment,
the Board does not have jurisdiction to decide it.  The Contract Disputes Act (CDA) grants
boards of contract appeals jurisdiction over claims arising from “any express or implied
contract” made by an executive agency to procure property, services, or construction, and to
dispose of property.  41 U.S.C. § 7102(a) (2018).  “The CDA does not grant the contract
appeals boards jurisdiction over claims arising from ‘implied-in-law’ contracts.  As ‘an
equitable doctrine applied to those situations where the rights and liabilities of the parties are
not defined in a valid contract,’ a claim for unjust enrichment arises from an ‘implied-in-law’
contract.”  Flux Resources, LLC v. Department of Energy, CBCA 6208, 19-1 BCA ¶ 37,338,
at 181,589 (citations omitted); see also John Douglas Burke v. Department of Health &
Human Services, CBCA 7492, 23-1 BCA ¶ 38,304, at 185,976.  Therefore, the Board does
not have jurisdiction over claims for unjust enrichment.

CBCA 7670 5
We concur:
    Erica S. Beardsley            Jonathan D. Zischkau    
ERICA S. BEARDSLEY JONATHAN D. ZISCHKAU
Board Judge Board Judge