MOTION TO DISMISS DENIED: April 19, 2007 
CBCA  411, 412 
KEY FEDERAL FINANCE, 
Appellant, 
v. 
GENERAL SERVICES ADMINISTRATION, 
Respondent in CBCA 411, 
and 
DEPARTMENT OF COMMERCE, 
Respondent in CBCA 412. 
Joseph J. Petrillo of Petrillo & Powell, PLLC, Washington, DC, counsel for Appellant. 
Michael J. Noble, Office of General Counsel, General Services Administration, 
Washington, DC, counsel for Respondent in CBCA 411.
 Fred Kopatich, Office of General Counsel,  Department  of Commerce, Washington, 
DC counsel for Respondent in CBCA 412. 
Before Board Judges DANIELS  (Chairman), STERN , and HYATT . 
STERN , Board Judge. 
Key Federal Finance (Key or appellant) filed this appeal after the Department of 
Commerce’s National Institute of Standards and Technology (Commerce) terminated a 
contract for the lease and purchase of computer equipment.  The named party on that contract 
was James River Technical, Inc. (JRTI), a company with which Key, as is further explained 

   
    
   
 
 
    
    
      
   
  
   
    
2 CBCA 411, 412 
below, held a teaming agreement for performance of the contract work.  Appellant filed a 
claim with Commerce.  That claim was denied.  Appellant also filed a claim with a 
contracting officer of the General Services Administration (GSA).  To date, GSA has not 
issued a final decision on that claim.   Key appealed Commerce’s decision and GSA’s failure 
to issue a decision to the General Services Administration Board of Contract Appeals 
(GSBCA).  That board consolidated the two appeals.
1   Pursuant to statute all the cases 
pending before the GSBCA were transferred to the Civilian Board of Contract Appeals on 
January 6, 2007.  Pub. L. No. 109-163, § 847, 119 Stat. 3136 (2006). 
We have before us Commerce’s Motion to Dismiss for Lack of Jurisdiction. 
Commerce alleges that Key is not a “contractor” that entered into a contract or order with the 
Government, a requirement for our jurisdiction under the Contract Disputes Act, 41 U.S.C. 
§§ 601-613, et seq . (2000). Commerce contends that the Board lacks jurisdiction over the 
appeal.  For the reasons set forth below we deny Commerce’s motion. 
Background 
1. On June 26, 2003, Commerce issued a request for GSA Federal Supply Schedule 
(FSS) quotations (RFQ) for high performance computing equipment for use at Commerce’s 
Gaithersburg, Maryland, facility. Appeal File, Exhibit 2.
2   One of the vendors that was 
provided the RFQ was JRTI. 
2. The RFQ (as amended) required the items to be procured to be priced on a thirty-six­
month lease-to-ownership basis.  The RFQ also stated that certain equipment compatibility 
requirements were set forth so that Commerce could complete “the building and fire safety 
investigation of the World Trade Center disaster by September 2004.”  Appeal File, Exhibit 
2 at 2. 
3. The RFQ emphasized that only GSA FSS contract quotes were sought.  The following 
additional guidance was provided in the RFQ: 
1 The issues in the two cases are identical.  We do not now decide whether both 
appeals are properly before us. 
2 The facts herein are taken from the Appeal File, the pleadings, and the various 
other documents, including an affidavit by appellant’s vice president, filed by the parties in 
this appeal.  The findings herein are solely for the purpose of resolving the subject motion. 

      
 
       
  
  
 
 
 
 
 
3 CBCA 411, 412 
(1)	 Your company may submit its own GSA FSS Contract quote (i.e., not 
be required to enter into a GSA FSS Contractor Teaming Arrangement 
with additional GSA FSS Contractor(s)) if your company’s GSA FSS 
Contract currently contains all required items AND your company’s 
GSA FSS contract contains leasing terms and conditions that could be 
used for the items to be procured. 
(2)	 If each required item is not currently on the company’s GSA FSS 
contract and/or if your company’s GSA FSS Contract does not include 
appropriate leasing terms and conditions, then your company must enter 
into a GSA FSS Contractor Teaming Arrangement with additional GSA 
FSS Contractor(s) as part of your quote.  All items, terms and 
conditions must be satisfied among the collective Contractor Teaming 
Arrangement’s GSA FSS Contracts. 
(3)	 If your company plans to enter into a GSA FSS Contractor Teaming 
Arrangement with one or more other GSA FSS Contractor companies 
for this request for quote, it must follow the guidelines set forth at 
http://www.gsa.gov/Portal/cont ent/offerings_content.jsp?contentOID= 
116432&contentType=1004. 
(4)	 If your company elects to enter into a GSA Federal Supply Schedules 
Contractor Teaming Arrangement for this quote, then your company 
must submit a signed copy  of that agreement in .pdf format with the 
quote. ALL COMPANIES MUST HAVE THEIR OWN 
COMPANY GSA FSS CONTRACT TO BE ELIGIBLE TO 
ENTER INTO SUCH A GSA FSS TEAMING ARRANGEMENT 
WITH ANOTHER GSA FSS CONTRACTOR.   The Contractor 
Teaming Agreement must include the following information, at a 
minimum: 
•	 Identifies which company that is part of the GSA FSS 
Contractor Teaming Arrangement that, for order award purposes 
for the Government, should be considered the prime Contractor 
•	 Identifies participants, Schedules, and services and products 
covered by the arrangement and how additions/deletions will 
occur 

 
         
 
  
 
4 CBCA 411, 412 
•	 Identifies which items being quoted and/or which terms and 
conditions are on which of the individual GSA FSS contracts. 
•	 Defines terms 
•	 Sets forth each participant’s roles, responsibilities, and 
obligations 
•	 Identifies scope, period of performance (for specific, limited 
purposes or longer periods covering several transactions), and 
termination of the arrangement 
•	 Identifies remunerations for functions performed, if any 
•	 Identifies the process that will be used to quote, accept, and 
administer orders.  This may include prices, terms and 
conditions, invoicing, payment, taxes, reports, etc. 
•	 Establishes scope and limitations of any licenses or proprietary 
rights 
•	 Establishes representations and warranties among the parties 
•	 Identifies confidentiality requirements, obligations, disclosures, 
and remedies 
•	 Identifies damages, liability/limitation of liability, and any 
indemnification requirements among the parties 
•	 Addresses administrative requirements (e.g., assignments, how 
notices will be conveyed and recognized, how changes or 
amendments will occur) 
•	 Identifies any terms that survive the arrangement or termination 
•	 Identifies governing laws, venues, etc. 
•	 Establishes how disputes will be addressed and resolved 

  
     
       
    
  
 
  
 
 
   
5 CBCA 411, 412 
•	 Addresses force Majeure 
(5)	 THE GOVERNMENT IS NOT SEEKING A GSA FSS 
CONTRACT QUOTE FROM ANY OFFEROR THAT 
CONTAINS ANY OPEN MARKET ITEMS; 
. . . . 
(13)	 The quote must state whether any of the items are not currently included 
on the Offeror’s GSA FSS Contract; if one or more of the items are not 
on the Offeror’s GSA FSS Contract, then the Offeror must enter into a 
Contractor Teaming Arrangement with another GSA FSS Contractor 
whose GSA FSS Contract does  currently include those items for the 
quote to be considered; 
. . . . 
The Government may award a GSA FSS order to the GS FSS Contractor 
whose technically acceptable individual quote or technically acceptable 
Contractor Team Arrangement quote represents the lowest overall cost to the 
Government. 
Appeal File, Exhibit 2 (some emphasis omitted). 
4. The guidelines at the Frequently Asked Questions section of the GSA website 
regarding Contractor Team Arrangements, referenced in the RFQ by Commerce, provided: 
How do GSA Schedule Contractor Team Arrangements (CTAs) differ from 
Prime Contractor/Subcontractor Arrangements under Schedule contracts? 
In prime/sub arrangements, the relationship is very tightly defined and 
controlled by the prime contractor; whereas in CTAs, the roles and 
responsibilities are defined by the team, as accepted by the government. The 
following chart summarizes key differences: 

     
  
6 CBCA 411, 412 
Contractor Team 
Arrangement (CTA) 
Prime Contractor/Subcontractor Arrangement 
Each team member 
must have a GSA 
Schedule contract. 
Only the prime contractor must have a GSA 
Schedule contract. 
Each team member 
is responsible for 
duties addressed in 
the CTA document. 
The prime contractor cannot delegate 
responsibility for performance to subcontractors. 
Only the prime contractor has privity of contract 
Each team member 
has privity of 
contract with the 
government and can 
interact directly with 
the government. 
with the government and can interact with the 
government. The prime contractor is responsible 
for its subcontracting activities. (Ordering 
activities are encouraged to specify in the 
Request for Quotation (RFQ) that the use of 
subcontractors requires prior approval by the 
ordering activities.) 
The ordering activity 
is invoiced at each 
team member's unit 
prices or hourly rates 
as agreed in the task 
or delivery order or 
GSA Schedule BPA. 
The ordering activity is invoiced in accordance 
with the prime contractor's GSA Schedule 
contract, including any applicable price 
reductions. 
Total solutions, 
otherwise impossible 
under individual The prime contractor is limited to the supplies 
GSA Schedule and/or services awarded on its GSA Schedule 
contracts, can be put contract. 
together quickly and 
easily. 
Appeal File, Exhibit 1. 
5. JRTI  held an FSS contract for the selling of computer equipment to the Government. 
JRTI did not have a provision for leasing in its FSS contract.  Appellant, Key Federal 
Finance,  held an FSS contract for leasing of computer equipment to the Government.  Since 

  
   
 
   
     
    
    
  
  
   
  
7 CBCA 411, 412 
Commerce wanted to lease the computer equipment, and because JRTI’s FSS contract did 
not provide for such leasing, JRTI and appellant agreed to enter into a teaming arrangement 
to provide the sought-after products and services to the Government. 
6. Key’s FSS contract for leasing stated in part: 
CONTRACTOR TEAM ARRANGEMENTS 
Federal Supply Schedule Contractors may use “Contractor Team 
Arrangements” (see FAR [Federal Acquisition Regulation] 9.6) to provide 
solutions when responding to customer agency requirements. The policy and 
procedures outlined in this part will provide more flexibility and allow 
innovative acquisition methods when using the Federal Supply Schedules.  See 
the additional information regarding Contractor Team Arrangements in this 
Schedule Pricelist. 
Key Federal Finance agrees to lease equipment listed on GSA schedule 
contracts held by contractors other than Key Federal Finance provided that the 
other contractor can reach a Teaming Agreement with Key Federal Finance on 
terms and conditions satisfactory to Key Federal Finance.  The Government 
agrees that Key Federal Finance may enter into such Teaming Agreements 
without any prior consents or approvals by the Government. 
Appeal File, Exhibit 13 (emphasis omitted). 
7. Key’s FSS contract contained two leasing options.  Option 1 was for orders issued 
under the negotiated terms and conditions of the FSS contract.  Orders placed under Option 
1 were subject to a termination provision that incorporated the FAR’s termination for 
convenience and default clauses.  Option 2 was for ordering offices that desired to negotiate 
other pricing terms.  Under Option 2, an agency could terminate a lease for convenience or 
at no cost for non-appropriation of funds.  Appeal File, Exhibit 13. 
8.  In response to the RFQ, JRTI submitted its proposal to Commerce.  JRTI stated: 
James River Technical is a platinum-level partner with SGI and is the primary 
contact for SGI products and services at NIST [Commerce].  Because of our 
experience and relationship at NIST, we fully understand the intent of the 
proposed computer upgrade and the goal of replacing the three aging 32 CPU 
[central processing unit] SGI servers with a single 96 CPU system at a reduced 
overall cost of ownership. The quoted system reduces the support costs and 

 
 
  
 
   
    
 
 
   
  
          
  
8 CBCA 411, 412 
allows us to provide this upgrade at a cost only slightly higher than the current 
support contract.  NIST will enjoy a significant performance improvement as 
a benefit of this upgraded system. 
Included in JRT’s proposal are several leasing options for the requested 
equipment and JRT is willing to explore additional options at your request. 
The following options have been presented for your consideration: 
•	 LTO [lease to ownership]-Lease to own as requested in your 
RFQ 
•	 LWOP [lease with option to purchase]-Lease with option to own 
(fair market lease) which allows for lower monthly payments 
and maintains the flexibility of future technology upgrades 
•	 Step lease-LWOP lease with a larger initial payment to reduce 
the monthly lease costs. 
James River Technical has partnered with Key Federal Finance to provide its 
leasing options. Key has had a long-term relationship with SGI and has been 
very successful in providing these programs to a number of government 
agencies. 
Appeal File, Exhibit 7. 
9. Attached to the JRTI submittal was the teaming agreement and Key’s detailed 
proposal for leasing to Commerce dated July 3, 2003.  Key’s detailed proposal stated that 
Key was offering Commerce the lease under option 2 of its FSS contract, that Commerce 
agreed that its order would include certain language incorporating Key’s proposal, and that 
Key and Commerce had certain obligations regarding payment. 
10. During the period of time between issuance of the RFQ and award of the contract, 
numerous  e-mail communications regarding the terms and conditions of the procurement 
were exchanged between Commerce and JRTI. Appeal File, Exhibits 2, 3, 4, 8-12, 14.  The 
record does not reflect any Key involvement in these exchanges. 
11. On July 16, 2003, Commerce requested clarifications of various aspects of the JRTI 
proposal and pointed out that the teaming arrangement with Key Federal Finance did not 
include all elements required by the solicitation.  Commerce listed the items that needed to 
be added to the teaming agreement.  Appeal File, Exhibit 10.  

    
  
    
 
    
 
 
  
 
 
 
  
 
        
  
    
     
9 CBCA 411, 412 
12. In response to Commerce’s request, modifications were made to the teaming 
agreement of July 3, 2003 (Finding 9), and a new teaming agreement between JRTI and Key 
was executed on July 24, 2003.  JRTI was designated the “Prime Contractor/Seller” and Key 
was designated the “Buyer.”  The teaming agreement along with a number of other 
documents were resubmitted to Commerce by JRTI on July 25, 2003.  Key’s proposal to 
Commerce that was part of the initial submittal on July 3, 2003, was not resubmitted.  The 
revised Teaming Agreement stated: 
1.1 Prime Contractor [JRTI] shall take principal charge of preparing and 
submitting the proposal (the “Proposal”) in response to the RFP and 
performing the work entailed in the resulting prime contract (the “Program”). 
Buyer [Key] shall prepare those portions of the Proposal relating to, and 
provide the services entailed in, the services described in Exhibit A [set forth 
below], subject to the assignment of such additional responsibilities by mutual 
agreement between the parties from time to time.  Buyer shall submit its 
portion of the Proposal to Prime Contractor (including all necessary schedules 
relating to price, terms and condition, etc.) no later than July 7th, 2003, and 
Prime Contractor shall have the final authority for the preparation, evaluation, 
and submission of the Proposal to NIST.  Prime Contractor shall direct and 
coordinate all contacts with NIST pertaining to the preparation of the Proposal. 
1.2 The Proposal submitted to NIST shall contain and identify Buyer’s 
contribution to the Proposal and shall also indicate that Prime Contractor 
intends to team with Buyer for the services identified as Buyer’s responsibility 
in Exhibit A hereto.  Nothing contained in this Agreement shall preclude or 
affect NIST’s ability to procure directly from either Team Member its 
respective portion of the requirements contemplated herein. 
. . . . 
2.1 The division of work and responsibility between the Team Members in 
executing the program is set forth in Exhibit A hereto.  Cost or pricing data 
will be submitted in accordance with the requirements as specified in the RFP. 
The cost or pricing data provided by Buyer shall be presented in the format 
prescribed by NIST. 
. . . . 

 
  
      
 
 
   
  
  
10 CBCA 411, 412 
5.1 This Agreement does not constitute a partnership, joint venture, or any 
other form of  business association.  The relationship between the Team 
members shall be that of a contractor team arrangement in accordance with 
GSA regulations.  Neither Team Member is the agent of the other, and except 
as expressly provided in this Agreement, neither may bind the other.  No 
profits, losses, or costs will be shared under any provision of this Agreement. 
There are no fees being paid by either of the Parties to the other which are not 
fully disclosed in this Agreement. 
Appeal File, Exhibit 14. 
13. The parties set out their responsibilities in “Exhibit A” as follows: 
This Exhibit will set forth the responsibilities of the parties.  Any 
modifications to this proposal are subject to mutual written approval. 
Prime Contractor/Seller :	 James River Technical (JRT) 
Buyer :	 Key Federal Finance, or its assigns (KFF) 
Customer :	 N I S T 
Customer Contract :	 JRT GSA Schedule for equipment (GS-35F-0392L) 
teamed with KFF GSA Schedule for leasing (GS­
35F-0346L) as described in the attached JRT-SGI­
NIST proposal. 
Please note that leasing terms, conditions and 
responsibilities are defined in the KFF GSA 
Schedule. 
Structure :	 Seller will sell and assign to Buyer good and 
unencumbered title to the equipment described in 
the User Contract and the contract lease or service 
contract payments relating thereto.  The  closing 
will occur approximately 30 days after Buyer 
receives the unconditional acceptance by the User 
of the equipment. 
Equipment Cost :	 Approximately $1,434,416.38 

  
 
  
   
 
   
  
   
11 CBCA 411, 412 
Lease Rates : 
. . . . 
Maintenance : 
Seller Liaison: 
Remarketing: 
Insurance : 
Taxes : 
Right to Finance : 
Proposals with requested leasing options and 
pricing would be submitted to Customer by Prime 
Contractor. 
The equipment will remain under a Prime 
Contractor sponsored maintenance program for 
the full duration of the User Contract. 
Seller will serve as Buyer’s representative and 
agent with respect to issues involving the 
equipment, and will serve as a Liaison between 
the User and Buyer for all service, warranty or 
other claims made by the User in connection with 
the equipment. 
Seller will provide for the reinstallation and 
removal of the equipment in the event of early 
termination of the User Contract and will assist 
buyer through a best efforts remarketing 
convenant. 
Seller will keep in force all-risk property and 
liability insurance policies naming Buyer and its 
assigns as loss payee and additional insured.  Or 
may purchase such insurance from Buyer. 
Seller will be responsible for payment of all 
applicable federal, state and local taxes for the 
duration of the User Contract. 
Buyer will have the exclusive right to provide 
financing for all equipment ordered under the User 
Contract, including all amendments, modifications, 
and extensions, and by its execution and return of 
this letter or a telecopy hereof, Seller hereby grants 
Buyer such right. 

  
  
     
 
 
 
       
    
   
       
12 CBCA 411, 412 
Ordering Procedures :	 When NIST expresses an interest in leasing a 
product(s), the Contract[ing] Officer will provide 
the following information to the Prime Contractor: 
(i)	 Which product(s) is (are) required. 
(ii)	 The required delivery date. 
(iii)	 The proposed lease plan and term of 
the lease. 
(iv)	 Where the product will be located. 
(v)	 Description of the intended use of the 
product. 
(vi)	 Source and type of appropriations to 
b e  u s e d . 
(vii)	 Agreement to assign payment stream 
to Buyer. 
Appeal File, Exhibit 14. 
14. Based on the submission, Commerce on July 31, 2003, issued an order to JRTI in the 
amount of $455,000 for the “lease to own” of computer equipment for the base period of 
September 1, 2003, to September 30, 2004, and the option periods of October 1, 2004, to 
September 30, 2005 (Option 1), and October 1, 2005, to September 30, 2006 (Option 2). 
Appeal File, Exhibit 16. The order stated, “This is a firm-fixed-price lease, with an option 
to purchase, of the items referenced in the Schedule section of this delivery order.”  Id.  The 
order also referred to the “Contractor Teaming Arrangement between James River Technical, 
Inc. and Key Federal Finance[.]”   Id.  The order did not incorporate the terms and conditions 
of Key’s proposal dated July 3, 2003.  See Finding 9. 
15. Upon receipt of the order, the executive vice president of JRTI sent an e-mail 
communication to Commerce stating: 
I have done a quick review of the Purchase Order and I do not see any 
language which addresses the assignment of lease payment stream to Key 
Federal Financial.  I had assumed that such would be indicated in the body of 
the Purchase Order.  Please give me a quick read on this. 
Appeal File, Exhibit 17. 

 
   
 
    
    
    
 
 
   
    
        
  
  
 
   
    
13 CBCA 411, 412 
16. Commerce replied: 
Since the award can only be made to one company, I asked, in the solicitation, 
that the proposal specify which company would be the [P]rime Contractor for 
award purposes since, for any contract, there can only be one company 
specified as the prime contractor (and, for legal reasons absent an assignment 
of claims, that is the only company that can invoice and receive payment).  The 
JRT proposal specified that the prime would be JRT.  Therefore, the award 
was made to JRT, but recognized the Contractor Team Arrangement between 
JRT and KFF. 
As noted in the assignment of claims regs, assignment of claims can be made 
to a financial institution.  The regs say that the Contractor can pursue an 
assignment of claims for a particular contract awarded to them.  (“Contractor” 
is a post award word . . . companies are referred to as “offerors” in the 
preaward phase.)  Also, before award, the Government would not ask for 
assignment of claims paperwork because no Contractor would have been 
selected before an actual award is made, and it would pose unnecessary 
administrative burden and cost on unsuccessful offerors.  The Government 
always strives to eliminate or reduce incurrence of unnecessary costs for 
unsuccessful offerors. 
I can do a mod to the order, if need be, to recognize KFF’s GSA Schedule 
Contract Number as part of the Contractor Team Arrangement.  I’d have no 
problem doing that. I’d have to do that as Modification No. 0001 to the order, 
though, since I can’t modify the format or content of the original order that has 
already been generated.  Let me know if that option appeals to you. 
Insofar as we get the assignment of claims documentation that is required by 
FAR 32.8, there should be no problem, at all, in us executing the assignment 
of claims.  We do these routinely, and by DOC [Department of Commerce] 
regulation, we have to have them reviewed by the DOC Office of General 
Counsel, Contracts Law Division. They’re simply going to do the same thing 
I do when I receive it . . . make sure it complies with FAR 32.8 requirements. 
It may take 30 days to get an assignment of claims done after we get the 
required documentation, so I’d request that it be sent to us as soon as possible. 
Appeal File, Exhibit 18. 

 
   
  
   
 
   
 
   
   
 
 
  
      
   
 
 
    
   
  
14 CBCA 411, 412 
17. JRTI answered Commerce that Key was concerned -­
that there was no reference to their “proposal” (aside of [sic] the teaming 
agreement) in the Purchase Order.  They believe that such is a requirement for 
the use of the Key GSA schedule. I do not purport to be an expert on such 
technicalities so I am seeking your guidance in such.  I understand that the 
assignment documents do come after the [Purchase Order]. 
Appeal File, Exhibit 19. 
18. On September 2, 2003, JRTI executed a “Notice of Assignment,” assigning moneys 
due or to become due under the contract, to Key.  Appeal File, Exhibit 20.  The actual 
“Instrument of Assignment” between JRTI and Key assigned all monies due under the 
contract to Key and further stated that Key “shall not be held responsible for the performance 
of any obligations of JRTI under the contract.” Id. The contracting officer signed an 
acknowledgment of the assignment on September 10, 2003.  Id. 
19. Although this assignment was executed, the delivery order was not modified to 
include Key as the contractor. As set forth above, JRTI was listed as the prime contractor. 
On July 30, 2004, Commerce notified JRTI that it would not exercise its option for 2005, and 
that the lease would terminate on September 30, 2004.  Appeal File, Exhibit 33.  Commerce 
provide the same notice to Key on August 4, 2004.  Id. , Exhibit 34.  JRTI and Key responded 
that this action was a termination for convenience.  Id. , Exhibit 36.  On September 30, 2004, 
Commerce advised JRTI that the order was being terminated, for non-appropriation of funds, 
at no cost to the Government.  Id., Exhibit 40.  This termination was purportedly exercised 
under the authority of a clause in Key’s FSS contract. Key maintained that the termination 
for non-appropriation was erroneous. Later, Commerce wrote JRTI that the termination was 
also appropriate on other grounds.  Id ., Exhibit 46.  Key then filed its claims with both 
Commerce and GSA. 
Contentions of the Parties 
Commerce argues for dismissal on the basis that Key is not a “contractor” authorized 
to file an appeal under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 601-613 
(2000). Commerce claims that the structure of the transaction made JRTI the contractor and 
the only company in privity of contract with the Government. 
Key replies that the delivery order incorporated the teaming arrangement. Key claims 
that this placed it in privity with Commerce.  Key maintains it has standing to file this appeal. 

 
 
  
 
  
 
    
 
      
 
  
 
 
  
 
 
     
     
      
 
 
15 CBCA 411, 412 
In the  alternative, Key requests reformation of the contract to reflect the intent of the parties, 
which it alleges was that Commerce and Key would be in privity. 
Discussion 
In deciding this motion to dismiss for lack of jurisdiction, we accept as true the facts 
alleged by the non-moving party (appellant).  If, based on those facts, Key might prevail, we 
must deny the motion.  W. R. Cooper General Contractor, Inc. v. United States , 843 F.2d 
1362, 1364 (Fed. Cir. 1988); see Scheuer v. Rhodes , 416 U.S. 232, 236 (1974); Reynolds v. 
Army & Air Force Exchange Service , 846 F.2d 746, 747 (Fed. Cir. 1988).  However, 
appellant bears the burden of proving jurisdiction.  Reynolds , 846 F.2d at 748. 
The issue here is whether Key is a contractor within the meaning of the CDA. As a 
general rule, the contractor is the party named on the contract with the Government.  Under 
the CDA only that contractor can bring an action against the Government  before this Board. 
41 U.S.C. § 606.  The CDA defines a “contractor” as “a party to a Government contract other 
than the Government.”  Id. § 601(4).  Waivers of sovereign immunity are strictly construed. 
United States v. Mitchell , 445 U.S. 535, 538 (1980).  Thus, subcontractors are generally 
barred from filing a direct appeal under the CDA.  United States v. Johnson Controls, Inc. , 
713 F.2d 1541 (Fed. Cir. 1983).  However, there have been exceptions to this rule.  For 
example, in D & H Distributing Co. v. United States , 102 F.3d 542 (Fed. Cir. 1996),  the 
court found that the third-party beneficiary could enforce the payment provision of the 
contract in a direct action against the Government.  In another case, the court found privity 
between the Government and a subcontractor where the prime contractor was determined to 
be a mere government agent.  Kern-Limerick, Inc. v. Scurlock , 347 U.S. 110 (1954).  In Kern , 
the contractor was acting as a purchasing agent for the Government, the contract clearly 
stated the agency relationship, and the contract made the Government directly liable to the 
subcontractor for the purchase price.  As in Kern , the relationship between Commerce and 
Key went substantially beyond that of the normal contractor/subcontractor. 
Commerce sought to lease and possibly purchase computer equipment solely from 
vendors that held existing FSS contracts.  It sent its request for a contract quotation to JRTI 
and other vendors. However, JRTI’s FSS contract did not permit leasing, a requirement of 
the solicitation. Commerce was aware that some offerors would have to enter into teaming 
arrangements to satisfy its requirements. Thus, the solicitation specifically stated that if an 
offeror’s FSS contract did not contain leasing provisions, that offeror would have to enter 
a “GSA FSS Contracting Teaming Arrangement” with one or more additional contractors 
whose FSS contracts would permit leasing to Commerce.  Commerce dictated the 
requirements of the teaming arrangement, including identification of the company that would 
be considered the “prime” contractor, the “roles, responsibilities, and obligations,” of each 

 
 
 
 
    
 
    
 
    
     
 
  
   
 
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16 CBCA 411, 412 
teaming party, the processes for orders, the warranties and liabilities between the parties, the 
terms that would survive a termination, and the method for handling disputes.  Commerce 
needed to approve the teaming arrangement before award. 
Commerce also notified offerors that they should visit the GSA website for additional 
guidance on teaming arrangements.  That website informed the offerors of the distinction 
between teaming arrangements and prime contractor/subcontractor agreements.  That website 
stated that under a prime contractor/subcontractor arrangement, only the prime contractor has 
privity of contract and can interact with the Government, while under a contractor team 
arrangement, each team member has privity and can interact with the Government.  We find 
that by reference to this website, Commerce incorporated this representation into the 
solicitation. 
With this background, Commerce placed the order (contract) to lease that is the 
subject of these appeals. The order identified JRTI as the “prime contractor.”  However, 
Commerce later stated that either company could have been identified as the “prime” and that 
it would have awarded the contract to whichever party had been designated as prime 
contractor in the teaming arrangement. Finding 16.  The order made specific reference to the 
“Teaming Arrangement between James River and Key Federal Finance.”  Subsequently, 
Commerce recognized the assignment to issue all money due under the contract to Key. 
Ultimately, the contract was terminated by GSA’s reference to a clause in Key’s FSS 
contract. 
The circumstances of this case indicate 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.  Both 
the requirements of the solicitation and Commerce’s actions before and after award created 
a contractual relationship between it and Key and permitted the two parties to deal directly 
with each other.  By these actions, the parties indicated an intent to be in privity under this 
contract. Commerce may not now deny the relationship it created.  Key is in privity with 
Commerce under this purchase order.  Key is a contractor as that term is used in the CDA. 
The Board has jurisdiction over this appeal. 
Decision 
Commerce’s motion is DENIED. 
JAMES L. STERN 
Board Judge 

CBCA 411, 412 17 
We concur: 
___________________________ __________________________ 
STEPHEN M. DANIELS CATHERINE B. HYATT 
Board Judge Board Judge