MOTION TO DISMISS GRANTED IN PART:  September 13, 2024
CBCA 7999
NOMUDA, INC.,
Appellant,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
Dilyn Loveless and Timothy J. Turner of Whitcomb Selinsky, P.C., Denver, CO,
counsel for Appellant.
Matthew Lane, Office of Chief Counsel, Federal Emergency Management Agency,
Department of Homeland Security, Washington, DC, counsel for Respondent.
Before Board Judges BEARDSLEY (Chair), LESTER, and CHADWICK.
CHADWICK, Board Judge.
Appellant, NoMuda, Inc. (NoMuda), alleges that the Federal Emergency Management
Agency (FEMA), a subagency of respondent, Department of Homeland Security (DHS),
breached an oral or implied-in-fact contract.  DHS seeks dismissal of the amended complaint
on grounds including lack of jurisdiction and failure to state claims on which the Board could
grant relief.  We lack jurisdiction to entertain one of the amended complaint’s five counts. 
Another count fails to state a claim.  Accordingly, we grant the motion in part and dismiss
those two counts on those respective grounds.  The other three counts remain in the case.


CBCA 7999 2
Background
NoMuda alleges that it was incorporated in September 2018 for the specific purpose
of becoming a third-tier subcontractor with respect to an ongoing federal contract. 
According to the amended complaint, the factual allegations of which we accept as true at
this stage, FEMA placed a call order in May 2018 for management training services under
a blanket purchase agreement with a company called ATCS, PLC.  (The details of the
services are immaterial at this time but allegedly involved training in “Lean Sigma Six”
management concepts.)  Multiple subcontractors at various levels performed most of the
work.  The amended complaint describes one such alleged subcontractor, CPI Group
International, Inc. (CPI Group), as both a first-tier and a second-tier subcontractor, but
usually as the latter.  NoMuda says the prime contractor and CPI Group “both . . . operated
in a manner similar to staffing agencies, wherein they tasked well over 50% of the work to
third-tier [sub]contractors.”
NoMuda alleges that in August 2018, “the [training] program’s scope was
substantially and materially augmented by [FEMA’s] Chief of Staff Ana Bonilla.”1 
According to the amended complaint, that month, a group of subcontractor personnel briefed
Ms. Bonilla on three “options” for meeting FEMA’s training needs, and Ms. Bonilla
“unequivocally selected option three.”  Allegedly, 
[u]nder option three, while the [training] contractors and subcontractors would
conduct some independent projects, their duties and obligations would largely
entail mentoring, training, and monitoring projects initiated by FEMA
personnel in what would be a “training pipeline.”  [Ms.] Bonilla was informed
that this option would require substantial adaptations and modifications to the
[existing statement of work of the prime call order] pertaining to scope,
staffing, mission, and [intellectual property (IP)], therein requiring more than
double the level of work . . . . Ms. Bonilla was also informed that the IP
necessary to effectuate this option was outside the scope of the [prime]
contract award and would be difficult, and expensive, to obtain.
NoMuda alleges that Ms. Bonilla “had actual or apparent authority to commit agency funds
and enter into agreements, binding FEMA.  This is supported by the fact that [her] signature
1 Although we accept the amended complaint’s factual allegations, we note for
clarity and fairness to the named individual that FEMA denies that Ms. Bonilla was
“FEMA’s Chief of Staff” and states, without providing evidence, that her “title during the
dates in question was ‘Chief of Staff (Trainee)’ for the Puerto Rico Joint Field Office.” 

CBCA 7999 3
was required for certain expenditures as she was often an authorized signatory for expense
approvals at the highest level of the agency.”
NoMuda alleges that some of the people who participated in briefing Ms. Bonilla in
August 2018 then participated in incorporating NoMuda in September 2018, and that by
virtue of Ms. Bonilla’s selection of “option three[] and advising NoMuda to perform the
tasks required thereunder, a valid and enforceable oral contract was created between FEMA
and NoMuda.  Such a finding is supported by extensive documentation and correspondence,
in addition to the facts alleged [in the amended complaint] and the totality of circumstances.”
NoMuda alleges that a FEMA program manager (not Ms. Bonilla) “caused NoMuda
to begin [subcontract] negotiations with CPI Group in September of 2018,” which resulted
in a subcontract executed on October 9, 2018, effective as of September 30, 2018. 
Confusingly, NoMuda alleges in this portion of the amended complaint that NoMuda
“bec[ame] a second-tier subcontractor” to CPI Group, while elsewhere it alleges it was a
third-tier subcontractor and CPI Group was at the second tier.  NoMuda alleges without
specificity that it was involved in “provision of the complex IP demanded by FEMA.”
NoMuda goes on to allege in considerable detail (not always easy to follow) that its
subcontract was “terminated” in May 2019, and it was not paid for some of its work and
“IP.”  Those allegations are not pertinent to DHS’s motion.
In August 2023, a party that is now alleged to have been NoMuda, Inc. using an
incorrect corporate name (“NoMuda, LLC”) submitted to FEMA, through counsel, a twenty-
four-page certified claim (“under” the prime contractor’s call order) for $519,969.36,
consisting of $460.548 for the value of “training . . . with customization” plus $59,120.84 in
“interest.”  The legal theories of the August 2023 claim were stated as “constructive change”
(apparently of the prime contract), “implied contract,” ratification of the change and/or of the
implied contract, and breach of the implied duty of good faith and fair dealing.
The claim was denied, and NoMuda, LLC (which we are currently treating as
interchangeable with appellant, NoMuda, Inc.2) timely appealed.  The amended complaint,
filed by leave of the Board in September 2024, without opposition by DHS, has five counts:
“Breach of Oral Contract,” “Breach of Implied Duty of Good Faith and Fair Dealing,”
2 See NoMuda, Inc. v. Department of Homeland Security, CBCA 7999, slip op.
at 4 (Sept. 9, 2024) (granting unopposed motion for leave to amend the complaint to, inter
alia, substitute NoMuda, Inc. for NoMuda, LLC).  We treat the claimant and appellant as the
same party in this decision, but we have not found or been asked to find that the named
appellant is the real party in interest or otherwise has standing to pursue the appeal.

CBCA 7999 4
“Breach of Implied Duty to Disclose Superior Knowledge,” “Implied-in-Fact Contract in the
Alternative,” and “Unjust Enrichment and Quantum Meruit in the Alternative.”3
Before the amendment of the complaint, DHS had filed, in lieu of an answer, a motion
to dismiss the original complaint for failure to state a claim, which also included
jurisdictional objections.  DHS asks us to apply that motion to the amended complaint.4 
DHS’s motion was fully briefed in May 2024.  We address the parties’ arguments below.
Discussion
The Board Lacks Jurisdiction to Adjudicate the Unjust Enrichment Count
Although DHS bases its motion on Board Rule 8(e) (48 CFR 6101.8(e) (2023)), which
governs motions to dismiss for failure to state a claim, the motion includes a mixture of
jurisdictional and merits arguments.  NoMuda responded to DHS’s jurisdictional objections. 
We address them first.
DHS correctly notes that “the Board does not have jurisdiction over unjust enrichment
claims” seeking recovery in quantum meruit, such as the fifth count of the amended
complaint.  See Burke v. Department of Health & Human Services, CBCA 7492, 23-1 BCA
¶ 38,304, at 185,976, motion for reconsideration denied, 23-1 BCA ¶ 38,360, appeal
docketed, No. 24-1019 (Fed. Cir. Oct. 5, 2023); Flux Resources, LLC v. Department of
Energy, CBCA 6208, 19-1 BCA ¶ 37,338, at 181,589.  The fifth count “must be dismissed
for lack of jurisdiction.”  Flux Resources, 19-1 BCA at 181,589.
DHS asserts that we also lack jurisdiction to adjudicate NoMuda’s claims of breach
of an oral contract and of superior knowledge, on the grounds that neither of those theories
was presented in the certified claim.  See, e.g., Lee’s Ford Dock, Inc. v. Secretary of the
Army, 865 F.3d 1361, 1369 (Fed. Cir. 2017) (per 41 U.S.C. § 7103(a)(1) (2012) (now 2018),
“the Board may not consider ‘new’ claims a contractor failed to present to the contracting
officer”); MLU Services, Inc. v. Department of Homeland Security, CBCA 8002, slip op. at
18–19 (Sept. 9, 2024).  We disagree and will address both theories on the merits.
As noted, the certified claim alleged an implied-in-fact contract rather than an oral
contract.  It is true, as DHS notes, that an oral contract is a type of express contract, not an
implied contract, and the two are often alleged in the alternative.  See, e.g., New America
Shipbuilders, Inc. v. United States, 871 F.2d 1077, 1079–80 (Fed. Cir. 1989) (discussing
3 NoMuda has confirmed its abandonment of the constructive change claim.
4 See NoMuda, Inc., slip op. at 3.

CBCA 7999 5
whether oral assurances formed implied contract); Baer v. Chase, 392 F.3d 609, 616–17 (3d
Cir. 2004).  But DHS’s assertion that oral and implied contract theories are, by definition,
“materially different” is incorrect.  Rather, “[t]he elements of an implied-in-fact contract are
the same as those of an oral express contract.”  Night Vision Corp. v. United States, 469 F.3d
1369, 1375 (Fed. Cir. 2006) (citing Trauma Service Group v. United States, 104 F.3d 1321,
1325 (Fed. Cir. 1997)).  Here, moreover, the claim and the amended complaint recite
virtually identical factual allegations as to contract formation, involving the same alleged
conduct by the same alleged FEMA official.  Both documents rely on the same core of
“operative facts” in this regard.  See Placeway Construction Corp. v. United States, 920 F.2d
903, 907 (Fed. Cir. 1990) (claims are the same when based on the same operative facts);
Crane & Co. v. Department of the Treasury, CBCA 4965, 16-1 BCA ¶ 36,539, at 178,005.
Given this degree of factual and legal overlap—and the fact that NoMuda still alleges
an implied-in-fact contract in the alternative—it is unclear what difference DHS thinks
eliminating the theory of oral contract from the case would make.  In any event, NoMuda’s
allegation of an oral contract was fairly presented to the contracting officer in the
presentation of the implied contract theory and is not a new claim over which we would lack
jurisdiction.  See Lee’s Ford Dock, 865 F.3d at 1369; Contract Cleaning Maintenance, Inc.
v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987) (claim must give the contracting officer
“adequate notice of the basis and amount of the claim”).
We also do not agree with DHS that the superior knowledge count of the amended
complaint constitutes a new claim—but this is mainly because we do not read that count, as
pleaded, as stating a claim for relief on the merits.  “A superior knowledge claim . . . focuses
. . . upon the Government’s knowledge of vital information prior to contract award and its
failure to share it with an unknowing contractor.”  VSE Corp. v. Department of Justice,
CBCA 5116, 18-1 BCA ¶ 36,928, at 179,916 (2017) (citing Yates-Desbuild Joint Venture
v. Department of State, CBCA 3350, et al., 17-1 BCA ¶ 36,870, at 179,687, motion for
reconsideration denied, 18-1 BCA ¶ 36,959 (2017), motion for full Board consideration and
to vacate denied, 18-1 BCA ¶ 36,968); see Giesler v. United States, 232 F.3d 864, 876 (Fed.
Cir. 2000) (enumerating four elements of such a claim).  DHS states simply that NoMuda
“did not present” a superior knowledge claim “to the Contracting Officer for decision.” 

CBCA 7999 6
The problem with DHS’s position is that substantially all of the facts on which
NoMuda bases the superior knowledge count of the amended complaint were alleged in the
claim, just without being linked to that legal theory.5  The flaw in NoMuda’s superior
knowledge count is not that it is “new” but that—as we hold on the merits, below—the facts
alleged in the claim and the amended complaint do not plausibly support recovery for a
breach of the duty to disclose superior knowledge.  We have jurisdiction to adjudicate both
the oral contract theory and the superior knowledge count.
The Amended Complaint States a Claim of Breach
Turning to the merits, “[w]e apply essentially the same standard as would a federal
trial court when ruling on a motion to dismiss for failure to state a claim.”  Amec Foster
Wheeler Environment & Infrastructure, Inc. v. Department of the Interior, CBCA 5168, et
al., 19-1 BCA ¶ 37,272, at 181,366 (citing Board Rule 8(e)).  Under that standard, “a
well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the
alleged] facts is improbable, and that a recovery is very remote and unlikely.”  Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 556 (2007) (internal quotation marks omitted); accord
Chapman Law Firm Co. v. Greenleaf Construction Co., 490 F.3d 934, 938 (Fed. Cir. 2007)
(the issue on a motion to dismiss is “not whether the claimant will ultimately prevail”). 
Notice pleading does not require a detailed recitation of facts.  Williams Building Co.
v. Department of Veterans Affairs, CBCA 6559, 20-1 BCA ¶ 37,492, at 182,160 (citing
Erickson v. Pardus, 551 U.S. 89, 93 (2007)).  A complaint must, however, allege “factual
content” that could support a “reasonable inference that the [other party] is liable,” making
“a claim to relief . . . plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted). 
DHS argues that Ms. Bonilla could not have formed any contract with NoMuda
because she “did not have authority to enter into contracts on behalf of the Government.” 
NoMuda accuses DHS of ranging beyond the pleadings and improperly seeking summary
5 The certified claim is not always easy to follow, but it alleges in substance that
NoMuda believed at the time it allegedly formed the unwritten contract with FEMA in 2018
that it would be important to amend the prime contractor’s statement of work and that FEMA
officials misled NoMuda about whether they expected or intended to make those changes. 
NoMuda argues that its claim also generally notified the contracting officer that NoMuda
alleged it “was not put on notice” before entering into the unwritten contract “that its
contractual relationship with Respondent was unauthorized or that [NoMuda] would not be
adequately compensated, . . . which it had no way of knowing.”  The superior knowledge
count of the amended complaint rests on allegations of this same sort, which, as we explain
below, do not implicate the superior knowledge doctrine.

CBCA 7999 7
judgment through a motion to dismiss.  We agree with NoMuda.  DHS relies on factual
assertions as well as on decisions in which the issue of contracting authority was resolved
on summary judgment (or summary relief).  E.g., CACI, Inc. v. Stone, 990 F.2d 1233, 1234,
1236 (Fed. Cir. 1993); Crowley Logistics, Inc. v. Department of Homeland Security, CBCA
6188, et al., 20-1 BCA ¶ 37,579, at 182,464, 182,467–68; Llamera v. United States, 15 Cl.
Ct. 593, 595, 599 (1988); cf. Leonardo v. United States, 63 Fed. Cl. 552, 560, 579 (2005)
(finding contracting authority after trial but denying relief), aff’d, 163 Fed. App’x 880
(Fed. Cir. 2006).  The amended complaint alleges that Ms. Bonilla had “actual” contracting
authority.6  We cannot find, in ruling on a motion to dismiss, that the allegation is
incorrect—no matter what we may think is likely.  E.g., Sommers Oil Co. v. United States,
241 F.3d 1375, 1380 (Fed. Cir. 2001) (“It was sufficient for the complaint to allege that the
government’s promise was authorized by a person having legal authority to do so.”), cited
in Portland Mint v. United States, 102 F.4th 1371, 1383 (Fed. Cir. 2024).
DHS also urges us to hold that NoMuda fails to state a breach claim because the
alleged timeline does not seem to make sense.  DHS notes that the allegedly crucial selection
of “option three” occurred before NoMuda existed and asserts that FEMA “would have had
no reason” to contract with a lower-tier subcontractor for work for which the prime
contractor was responsible.  We have no grounds, however, to scrutinize the allegations so
closely at this stage.  See, e.g., Williams Building Co., 20-1 BCA at 182,160 (noting that
elements of well-pleaded claim could be explored in discovery); cf. Vanguard Business
Solutions v. Department of State, CBCA 6951, 21-1 BCA ¶ 37,838, at 182,734 (declining to
inquire “too deep[ly] into the merits” on motion to dismiss for lack of jurisdiction).
NoMuda sufficiently alleges under the liberal notice pleading standard that an
authorized FEMA official promised that NoMuda would be paid for extra work in connection
with the call order.  Consequently, the counts of the amended complaint alleging breach of
an oral contract, breach of an implied-in-fact contract, and breach of the implied duty of good
faith and fair dealing all survive DHS’s motion to dismiss.7
6 As DHS notes, apparent authority would not suffice.  Winter v. Cath–dr/Balti
Joint Venture, 497 F.3d 1339, 1344 (Fed. Cir. 2007). 
7 DHS’s arguments for dismissal of the good faith and fair dealing count for
failure to state a claim rely in part on the mistaken premise that NoMuda must allege “bad
faith,” contra CAE USA, Inc. v. Department of Homeland Security, CBCA 4776, 16-1 BCA
¶ 36,377, at 177,349, and in larger part on DHS’s assertion that Ms. Bonilla lacked
contracting authority. 

CBCA 7999 8
The Amended Complaint Fails to State a Claim of Withholding Superior Knowledge
DHS argues, among other things, that the superior knowledge count of the amended
complaint fails to state a claim for relief because it represents “a nonsensical application of
the doctrine of superior knowledge.”  We agree that the count does not state a claim.8  The
pertinent allegations of the count are as follows:
105. At the time of the solicitation and award of the contract [sic],[9] FEMA
had notice, knowledge, and awareness of the scope of the [call order statement
of work (SOW)] and the work to be performed thereunder.
 
106. Subsequently, FEMA, through . . . personnel, undertook to demand
services and IP from NoMuda outside of the scope of the SOW. 
107. On numerous occasions, over a period of more than one year, . . .
FEMA representatives . . . represented and assured [NoMuda] that the SOW
modifications and amendments were underway and that NoMuda would be
fully compensated. 
108. At all relevant times, FEMA was aware that the SOW was not in the
process of being amended or modified, and that FEMA did not intend to
initiate the required processes to do so. 
109. NoMuda undertook to perform out of scope work without vital
knowledge of facts affecting performance and costs, as described herein.
 
110. FEMA was aware that NoMuda had no knowledge, nor could it obtain
such knowledge, that FEMA was not in the process of amending or modifying
the SOW, nor that FEMA did not intend to.  Knowledge of these facts was
vital and [a]ffected NoMuda’s performance and costs.
8 DHS’s other arguments are misdirected.  DHS presumes, for example, that
NoMuda should have pleaded facts to support each element of the claim, which is not
necessary for notice pleading.  Cf. Bell/Heery v. United States, 739 F.3d 1324, 1330 (Fed.
Cir. 2014) (pleading breach does not require pleading elements of contract formation).
9 Here as elsewhere in the amended complaint, “the contract” seems to mean the
call order allegedly placed with the prime contractor, not the alleged, unwritten contract
between FEMA and NoMuda.

CBCA 7999 9
111. Despite numerous opportunities, pursuant to weekly meetings and/or
daily correspondences . . . , FEMA failed to provide relevant information
within its possession. 
112. As a result of FEMA’s breach of its duty to disclose superior
knowledge, NoMuda has been damaged in the amount of $519,969.36.
Even under the liberal standard we apply, we cannot discern a plausible superior
knowledge claim here.  “The superior knowledge doctrine imposes upon a contracting
agency an implied duty to disclose to a contractor otherwise unavailable information
regarding some novel matter affecting the contract that is vital to its performance.”  Giesler,
232 F.3d at 876.  A cardinal difference between superior knowledge claims and other breach
claims is their timing.  The duty to disclose superior knowledge operates before contract
formation, whereas other breaches can occur only afterward.  See, e.g., Scott Timber Co.
v. United States, 692 F.3d 1365, 1372 (Fed. Cir. 2012) (pre-award conduct could not breach
duty of good faith and fair dealing, which “did not [yet] exist”); GAF Corp. v. United States,
932 F.2d 947, 949 (Fed. Cir. 1991) (discussing superior knowledge doctrine); TranBen, Ltd.
v. Department of Transportation, CBCA 5448, 17-1 BCA ¶ 36,635, at 178,429 (contractor
alleging breach of implied duty of good faith and fair dealing “did not set forth a superior
knowledge claim in its certified claim or complaint”); CAE USA, 16-1 BCA at
177,353–54 n.3 (duty to disclose superior knowledge is “separate and distinct from the
implied duty of good faith and fair dealing, even if they involve similar principles”). 
NoMuda does not allege (apart from the purely conclusory recitation in paragraph 110) that
its performance became more difficult or expensive because FEMA wrongly failed to share
“vital information prior to” the alleged formation of the direct contract between FEMA and
NoMuda.  See VSE Corp., 18-1 BCA at 179,916 (emphasis added).
Liberally construed, the paragraphs of the amended complaint, quoted above, allege
that “for a period of more than one year”—i.e., mostly or entirely after the alleged adoption
of “option three” a few months after FEMA placed the prime call order—FEMA did not
amend the call order as NoMuda had been led to believe FEMA would.  These allegations
do not implicate the superior knowledge doctrine for at least three reasons. 
First, NoMuda does not claim it was misinformed about facts in existence when it
allegedly formed the contract directly with FEMA in about September 2018.  An agency’s
mere thoughts or expectations about the future are not “information” or facts that may form
a basis of a superior knowledge claim.  See ACC Construction Co., ASBCA 62265, et al.,
22-1 BCA ¶ 38,194, at 185,470 (“government’s judgment about [a] possibility” was not “a
fact existing prior to award” about which it could have superior knowledge “but . . . a
prediction”), aff’d, No. 2023-1372, 2024 WL 2064620 (Fed. Cir. May 9, 2024); Northrop
Grumman Corp. v. United States, 47 Fed. Cl. 20, 90 (2000) (judgments and predictions are

CBCA 7999 10
not superior knowledge); see also GAF Corp., 932 F.2d at 949 (doctrine applies “in limited
circumstances” such as when the Government should have known a prospective contractor
“needed to learn more” about the requirements).  Second, the time frame is mostly inapt. 
NoMuda’s allegation that FEMA officials misled NoMuda after its alleged oral or implied
contract was formed is irrelevant to a superior knowledge claim.
Third, and no less importantly, there is no plausible connection between not amending
the statement of work and NoMuda’s costs.  NoMuda does not allege that the unwritten
contract it allegedly formed with FEMA became more costly to perform because the call
order stayed the same.  See Hercules Inc. v. United States, 24 F.3d 188, 196 (Fed. Cir. 1994)
(superior knowledge claim “is tenable where the government fails to provide a contractor
with vital knowledge . . . which bears upon the costs of the contractor’s performance”), aff’d,
516 U.S. 417 (1996).  NoMuda’s only discernable claim of injury is that it was not “fully
compensated” because the call order was not amended.  The amount that NoMuda might
ultimately be compensated by FEMA or anyone else was not, however, a consideration
plausibly, or even conceivably, “vital to” NoMuda’s “performance” of the management
training, i.e., to its ability to meet contract requirements.  Giesler, 232 F.3d at 876 (emphasis
added).  In sum, a failure by FEMA to disclose a pre-contract prediction or expectation that
the agency would not amend the prime contractor’s call order, so that NoMuda could be paid
commensurate with its expectations, simply could not amount to withholding “superior
knowledge” within the specialized meaning of that term.
We are not, to be clear, purporting to say exactly what a superior knowledge claim
must include to survive a motion to dismiss.  Presumably, as with other theories, a claimant
need not allege everything it would ultimately need to prove.  We hold that the amended
complaint fails to state a claim for relief under the superior knowledge doctrine because the
facts alleged do not support a reasonable inference of a plausible superior knowledge claim.
Decision
DHS’s motion to dismiss is GRANTED IN PART.  The fifth count of the amended
complaint (unjust enrichment) is dismissed for lack of jurisdiction, and the third count
(superior knowledge) is dismissed for failure to state a claim.  DHS’s motion to dismiss is
otherwise denied.
    Kyle Chadwick                
KYLE CHADWICK
Board Judge

CBCA 7999 11
We concur:
   Erica S. Beardsley              Harold D. Lester, Jr.      
ERICA S. BEARDSLEY HAROLD D. LESTER, JR.
Board Judge Board Judge