MOTION TO DISMISS FOR LACK OF JURISDICTION DENIED: October 5, 2020
CBCA 6742
TKC GLOBAL SOLUTIONS, LLC,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Respondent.
C. Peter Dungan and Roger V. Abbott of Miles & Stockbridge P.C., Washington, DC,
counsel for Appellant.
Brian A. Quint, Office of the Solicitor, Department of the Interior, Washington, DC;
and Murphy H. Peterson, Jr., Office of the Solicitor, Department of the Interior, Herndon,
VA, counsel for Respondent.
Before Board Judges SOMERS (Chair), VERGILIO, and SULLIVAN.
SOMERS, Board Judge.
TKC Global Solutions, LLC (TKCG) has appealed a contracting officer’s final
decision denying its claim for damages, asserting that the Department of the Interior, Bureau
of Indian Affairs (the agency) unlawfully retained certain equipment and software after the
expiration of its contract.  The agency has filed a motion to dismiss this appeal for lack of
jurisdiction.  For the reasons set forth below, we deny the motion. 


CBCA 6742 2
Background
On September 24, 2015, the agency awarded contract A15PC00204 to TKCG. The
contract provided that the agency would lease certain equipment, software, maintenance and
services for data storage and management (the products) from TKCG.  A subcontractor,
ePlus Government, Inc. (ePlus) provided a portion of the products.  The contract required the
agency to give TKCG written notice ninety days prior to the end of the contract that the
agency was either (1) renewing the contract, (2) purchasing the products at the current fair
market value, or (3) returning the products to TKCG.  After contract performance had been
completed, the agency failed to give TKCG notice as required.  Instead, the agency held the
products past the end of the contract and failed to renew the contract, purchase or return the
products.   
On February 13, 2019, the agency received TKCG’s claim.  Brought in the name of
TKCG, ePlus, and Wilmington Trust National Association (Wilmington), the claim asserted: 
(1) that the agency failed to inform TKCG whether it intended to exercise one of three
possible options under the contract, (2) that the agency improperly retained the equipment
as a holdover tenant without paying TKCG for the retention and (3) that the agency had
wrongfully continued to retain the items or failed to follow the proper procedure for
returning them.  The claim sought damages for “$1,522,663.00 for the first holdover year
currently in effect and, in the event of failure to give timely notice during this year,
additional holdover years’ rents, or, if the agency gives timely notice, the amounts required
by such notice.”  
After evaluating the claim for several months, the contracting officer contacted TKCG
by email on September 30, 2019, to ask whether TKCG was bringing the claim on behalf of
itself or ePlus, and whether there had been an assignment of claims from ePlus to TKCG. 
On October 17, 2019, TKCG responded that it was sponsoring the claim on behalf of ePlus,
and that ePlus had confirmed that there had been no assignment of claims from ePlus to
Wilmington.  
In a decision dated November 22, 2019, the contracting officer provided a summary
of facts that involved the contract that is the focus of the claim (referred to as Contract 1),
as well as a second contract (referred to as Contract 2 or, later, as a purchase order).  After
providing an extensive chronology for both contracts, the contracting officer denied the
claim.  First, the contracting officer stated that, while the claim had been presented under the
name of the contractor, TKCG and others, the contractor had failed to present evidence of
an assignment of claims to ePlus and/or Wilmington.  Second, the contracting officer rejected
the contractor’s “holdover tenant” claim because the amount sought by TKCG far exceeded
the market price that a buyer would pay to a seller for the equipment at issue, leading to a
“windfall.”  Third, the contracting officer denied that TKCG was entitled to any

CBCA 6742 3
compensation, “however calculated and to whomever assigned,” because the agency could
not be held responsible for delays between the two contracts:  
To the extent that BIA did not meet any obligation under Contract 1 (and to
the extent that TKC, by its own conduct and communications, did not fully or
partially waive any such non-performance by BIA), by its performance failures
and delays under Contract 2, TKC interfered with BIA’s ability to perform
under Contract 1.  We note that a possible measure of damages for TKC’s
delay in performance could be BIA’s cost of renting equipment.  As such, even
assuming for argument’s sake that ePlus incurred cognizable damages under
Contract 1, BIA could off-set any damages allegedly owing under Contract 1
due to TKC’s performance failures and delays under Contract 2.  
TKCG timely filed its appeal in its own name on February 20, 2020.
Discussion
I. Jurisdiction is Proper
The agency has moved to dismiss the contractor’s appeal for lack of jurisdiction,
pursuant to Board Rule 8(b), 48 CFR 6101.8  (2020).  The agency asserts that “TKCG’s
allegation of material operative facts are different from those presented to the contracting
officer; those facts could have led the CO to reach a different conclusion on the claim; or
because the facts certified as accurate in the claim were inaccurate or incomplete.”  
As we have noted previously, each “claim” brought under the Contract Disputes Act
(CDA), 41 U.S.C. §§ 7010-7109 (2018), must be submitted in writing to the contracting
officer, with adequate notice of the basis for the claim.  Strawberry Hill, LLC v. General
Services Administration, (CBCA 5149), 16-1 BCA ¶ 36,561 (citing Santa Fe Engineers, Inc.
v. United States, 818 F.2d 856, 858 (Fed. Cir. 1987)).  An action brought under the CDA
“must be ‘based on the same claim previously presented to and denied by the contracting
officer.’” Qwest Communications Co. v. General Services Administration, CBCA 3423, 14-1
BCA ¶ 35,655 (citing Scott Timber Co. v. United States, 333 F.3d 1358, 1365 (Fed. Cir.
2003)). “It must arise from the same operative facts and claim essentially the same relief.”
Id.; see also EHR Doctors, Inc. v. Social Security Administration, CBCA 3522, 14-1 BCA
¶ 35,630.
In the notice of appeal and the complaint, appellant contends that the agency breached
the contract by failing to abide by the contract terms and conditions.  The facts alleged in the
notice of appeal and the complaint are the same facts that had been presented in the claim
before the contracting officer.  The contracting officer’s decision detailed the same operative

CBCA 6742 4
facts in denying the claim.  We reject the agency’s argument and find no distinction between
the claim presented and denied by the contracting officer, and the action brought here.   
The fact that the contractor asserted the initial claim under three names (TKCG, ePlus
and Wilmington) but later filed its notice of appeal under a single name (TKCG) does not
change the operative facts underpinning the claim.  Although the certified claim requested
that payment be made to the “assignee,” the thrust of the claim always focused on whether
the agency breached the contract requirements.  It identifies the damages to the contractor
arising from the alleged breach of contract.  The  reference to an assignee was not material
to the claim or the contracting officer’s decision.  
The agency refers to Merlin International Inc. v. Department of Homeland Security,
CBCA 1012, 11-2 BCA ¶ 34,869, which quotes from Northrop Grumman Computing
Systems, Inc. v. United States, 99 Fed. Cl. 651 (2011), to show that the contracting officer’s
decision was informed in part by TKCG’s designation of an assignee.  The agency is
misguided.  The contracting officer’s denial of the claim “however calculated and to
whomever assigned” confirms that the validity of the assignment did not impact the analysis.
Further, to the extent that the agency relies upon the Merlin citation to the Court of Federal
Claims decision, that reference does not represent the current state of the law; subsequent
to the Board’s decision in Merlin, the Federal Circuit reversed the Court of Federal Claims. 
See Northrop Grumman Computing Systems, Inc. v. United States, 709 F.3d 1107 (Fed. Cir.
2013).     
In the absence of any evidence that the contractor was acting as an agent or pass-
through entity, we conclude that the agency is only liable to TKCG for the retention of the
Products past the contract date, and not to other potential claimants.  Thus, even if TKCG
improperly assigned its claim, as the agency asserts, this does not bar TKCG from pursuing
its breach of contract claim. 
II. Certification is Adequate
The CDA requires that for claims over $100,000, a certification is made that the claim
is in good faith and that the supporting data is accurate and complete to the best of the
contractor’s knowledge.  41 U.S.C. §  7103(b) (2018).  Without appropriate certification, the
contracting officer does not have a claim to consider under the CDA.  See, e.g., Foxy
Construction, LLC v. Department of Agriculture, CBCA 5632, 17-1 BCA ¶ 36,687 (2017). 
 
The agency contends that by assigning the claim to Wilmington, TKCG could not
properly certify the claim.  Assuming for the sake of argument that TKCG’s attempt to assign
its claim to Wilmington was ineffective, this attempted assignment did not cause TKCG to
forfeit its breach of contract claim.  The agency’s concerns regarding the merits of the claim

CBCA 6742 5
do not equate to a defective certification.  See Group Health Inc. v. Department of Health
and Human Services, CBCA 3407, 14-1 BCA ¶ 35, 487.  Because TKCG is the party who
contracted with the agency, we conclude that TKCG properly certified the claim.     
Decision
For these reasons, the motion to dismiss the appeal for lack of jurisdiction is
DENIED. 
    Jeri Kaylene Somers      
JERI KAYLENE SOMERS
Board Judge
We concur:
     Joseph A. Vergilio             Marian E. Sullivan       
JOSEPH A. VERGILIO MARIAN E. SULLIVAN
Board Judge Board Judge