MOTION TO DISMISS FOR FAILURE TO STATE 
A CLAIM GRANTED IN PART: September 9, 2016
CBCA 4410
THINKGLOBAL INC.,
                                                         Appellant,
v.
DEPARTMENT OF COMMERCE,
                                                             Respondent.
Justin E. Proper and Sam Dalke of White and Williams LLP, Philadelphia, PA,
counsel for Appellant.
Erin Frazee Masini and Mark Langstein, Office of General Counsel, Department of
Commerce, Washington, DC, counsel for Respondent.
Before Board Judges DRUMMOND, SHERIDAN, and LESTER.
DRUMMOND, Board Judge.
ThinkGlobal Inc. (TGI) has appealed the deemed denial of its certified claim arising
from two separate no-cost contracts (2004 and 2009) with the Department of Commerce
(DOC) to market, produce, and distribute (hereinafter publish) an advertising catalog called
Commercial News USA (CNUSA).  TGI seeks $8,678,4751 in lost profits and unearned
revenues.
DOC moves to dismiss the above-captioned appeal for failure to state a claim upon
which relief can be granted, or in the alternative, for untimeliness and lack of subject matter
1
TGI offers no information as to how the $8,678,475 is distributed between thecontracts.  

CBCA 4410 2
jurisdiction.  TGI opposes DOC’s motion.2  For the reasons set forth below, DOC’s motion
is granted in part and denied in part. 
Background3
The 2004 Contract
On April 1, 2004, TGI entered into a no-cost contract (2004 contract) with DOC,
under which TGI agreed to publish CNUSA4 in print and to post an electronic copy on
DOC’s website “BuyUSA.com.”5  Complaint ¶¶ 66, 68 & Exhibit A6 at 1, 3; Respondent’s
Motion to Dismiss at 5 n.2.  The first issue of CNUSA was to be published within “120 days
of contract signing.”  Complaint, Exhibit A at 5.  The base term of the 2004 contract ran from
April 1, 2004, through August 31, 2006, with the possibility of three no-cost option years. 
Id. at 1, 2, 7.
The 2004 contract specified that DOC bore no risk of loss associated with the
publication and that TGI’s advertising sales would generate sufficient revenue to cover TGI’s
“costs and afford a reasonable profit.”  Complaint ¶¶ 53, 54 & Exhibit A at 1, 4-7. 
2
The record includes the appeal file, TGI’s complaint and its two exhibits,DOC’s answer, Respondent’s Motion to Dismiss, Appellant’s Response to Motion to
Dismiss, and Respondent’s Reply to Appellant’s Response.
3
The factual allegations are taken primarily from the complaint, supplementedby information in the contracts, appeal file, and certified claim, to which TGI refers in its
complaint. 
4
The 2004 contract described CNUSA as the “official catalog of U.S.suppliers.”  It consisted almost entirely of paid advertising by American companies and was
routinely placed in lobby areas of Foreign Commercial Service offices for visitors to peruse. 
The goal of the program was to provide foreign businesses with information regarding
potential American partners.
5
The 2004 contract described BuyUSA.com as a Government-to-Businesswebsite intended to assist U.S. exporters in locating qualified international buyers and trading
partners.  DOC discontinued the BuyUSA program during the 2004 contract.
6
Exhibit A to TGI’s complaint is the 2004 contract.  Exhibit B is the 2009contract.

CBCA 4410 3
According to TGI, the “CNUSA program remained marginally profitable . . .  under the 2004
contract.”  Complaint ¶ 141.
Under the terms of the 2004 contract, TGI agreed to use  “its market research, budget,
channels of distribution and schedules to develop and,” with the “cooperation of [DOC]
field offices, implement a domestic promotional campaign for CNUSA.”  Complaint ¶ 158
& Exhibit A at 4 (emphasis added). 
Section 4 of the 2004 contract discussed in part the information that DOC may furnish
to TGI.   Exhibit A at 5.  Section 4.A of the 2004 contract stated that “upon contract
award,” DOC will, “as relevant and appropriate,” provide to TGI “information for
companies currently advertising in both the online and print versions of CNUSA.” 
Complaint ¶ 71 & Exhibit A at 5 (emphasis added).  This section also stated that DOC will,
“to the degree possible, provide current marketing materials, training materials and other
information deemed relevant to the program.”  Additionally, this section stated that
“immediately after contract signing,” DOC “will, to the degree possible, supply” TGI with
“a complete data base of current and past CNUSA advertisers”; “a detailed breakdown of all
distribution costs”; “a revised distribution list” by the “end of December 2004”; and “space
on the www.export.gov website.”  Id. (emphasis added).
Section 4.B of the 2004 contract stated that  “immediately after contract signing,”
DOC will use “its best efforts (subject to the previous publisher [sic] willingness to supply
such items in its possession)” to provide TGI price lists, media kits, and past issues of
CNUSA.  Complaint  ¶ 72 & Exhibit A at 5 (emphasis added).  Section 5.B.2 of the 2004
contract stated, inter alia, that DOC will “perform semi-annual reviews of the project’s
operations and revenues.”  Complaint ¶ 73 & Exhibit A at 6 (emphasis added).  This
section also stated that the “semi-annual review meetings shall alternate between
Washington, DC and the contractor headquarters.”  Id.
DOC did not exercise the first option by the conclusion of the initial base period. 
Complaint, Exhibit A at 2.  TGI, however, continued to publish CNUSA, and approximately
thirteen months later, DOC and TGI executed bilateral modification 1 with an effective date
of October 3, 2007.  Appeal File, Exhibit 2.  Bilateral modification 1 exercised DOC’s option
for option years I and II.  The 2007 modification incorporated by reference all the terms and
conditions of the 2004 contract, including that the services were to be performed at no cost
to DOC.  DOC and TGI later executed bilateral modification 2 with an effective date of
August 31, 2008.  Appeal File, Exhibit 4.  Modification 2 exercised DOC’s option for option
year III for the period September 1, 2008, through August 31, 2009.  The 2008 modification
incorporated by reference all the terms and conditions of the 2004 contract, including that

CBCA 4410 4
the services would be performed at no cost to DOC.  TGI’s services under the exercised
options ended on August 31, 2009. 
The 2009 Contract
In September 2009, TGI entered into a new contract (2009 contract) with DOC, under
which TGI agreed to publish CNUSA in print and electronically at no cost to DOC. 
Complaint  ¶¶ 149, 153 & Exhibit B at 2, 4.  The 2009 contract, like the 2004 contract, called
for TGI to recover its costs and a reasonable profit from revenue generated by CNUSA.
Complaint ¶153 & Exhibit B at 4.  The 2009 contract had an initial base term, September 1,
2009, through August 31, 2010, with the possibility of four one-year options.    Complaint 
¶ 155 & Exhibit B at 7.
The 2009 contract stated that “at a later date, the contractor also may be requested to
provide marketing and maintenance services for the Featured U.S. Exporters (FUSE)
program.”7  Complaint, Exhibit B at 4 (emphasis added).  DOC continued to operate the
FUSE program during the 2009 contract; at no time during the 2009 contract did DOC
request TGI to take over the FUSE program.  Complaint ¶ 190; Answer ¶ 190. 
As with the 2004 contract, the 2009 contract stated, inter alia, that TGI “shall use its
market research, budget, channels of distribution and schedules to develop and,” with the
“cooperation of [DOC] field offices, implement a domestic promotional campaign for
CNUSA.”  Compliant ¶ 158 (emphasis added). 
  Section 4.B of the 2009 contract stated, inter alia, that DOC “will, as relevant and
appropriate, provide contractor information for current online and print advertisers” and
“current marketing materials, training materials and other information deemed relevant to the
program.” Complaint ¶ 159. 
Section 6 of the 2009 contract stated that DOC may extend the term of the 2009
contract through four one-year periods8 “based upon satisfactory performance.”  Complaint
¶¶ 155, 156 & Exhibit B at 2, 7.  Option year I would run from September 3, 2010, to
September 2, 2011.  Complaint, Exhibit B at 2.  Each subsequent option, if elected, was to
7
FUSE is an online directory of U.S. products and services featured ongovernment websites around the world.
8
We refer to each annual extension by option year, i.e., option year I (term ranfrom September 3, 2010, to September 2, 2011) and option year II (term ran from September
3, 2011, through September 2, 2012).

CBCA 4410 5
continue for twelve months thereafter.  Id.  Although DOC did not exercise further options
under the 2009 contract after option year I ended on September 2, 2011, TGI continued to
provide services after this date.  Complaint ¶ 231; Answer ¶ 231.
 By email message dated July 10, 2013, DOC ordered TGI to stop work, which it did. 
Complaint ¶ 238.
The Claim
By letter dated July 25, 2014, TGI submitted a certified claim to a DOC contracting
officer asserting breaches of the 2004 and 2009 contracts, continuous breaches of its implied
covenants under both contracts, unfair competition under both contracts, bad faith
termination of the 2009 contract, and entitlement to $8,678,475 in lost profits and unearned
revenues.  Complaint ¶¶ 31, 32, 36-41, 266-72, 278-88, 304-06, 309; Certified Claim at 1,
23-31.  TGI complained that after award of the 2004 contract it “encountered a number of
significant administrative obstacles” that continued into the 2009 contract.  Certified Claim
at 7-23.  In discussing the breach claims, TGI, inter alia, alleged that DOC failed to provide
timely, complete, accurate, and easy to format data, as well as failed to commit the
cooperation of the field offices under both contracts.  Complaint ¶ 266; Certified Claim at
1, 2, 5-8, 13-16.  TGI asserted that DOC was “unable to maintain the website on a daily, real-
time basis,” and to solve the problem, TGI “built and hosted a non-government website at
ThinkGlobal.us.”  Certified Claim at 7.  TGI also asserted that, although the 2004 contract
“encouraged [TGI] to develop cost-savings strategies and partnership agreements for the
distribution of the print magazine,” DOC “repeatedly refused to leverage the Government’s
formal MOA [memorandum of agreement] and strategic partnership with FedEx,” and later
with DHL and UPS.  Id.  Finally, TGI asserted that DOC never conducted the semi-annual
reviews as required by the 2004 contract.  Id. 
Concerning the breach claims arising under the 2004 contract, TGI alleged that the
claims accrued on March 11, 2011, after DOC’s refusal to provide documents requested
under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (2006).  TGI alleged further
that it was only then that TGI knew that DOC had breached its obligations under the 2004
contract.  Appellant’s Response to Motion to Dismiss at 12-16.
By letter dated September 25, 2014, a DOC contracting officer requested that TGI
provide additional information about its certified claim that DOC had received on July 29,
2014.  Complaint ¶ 32; Answer ¶ 32.  After allowing more than ninety days to pass from the
initial submission of the claim, TGI filed its appeal with the Board from a deemed denial on
December 22, 2014.  TGI subsequently filed a complaint, alleging that DOC breached the
2004 and 2009 contracts, breached its implied covenants under both contracts, engaged in

CBCA 4410 6
unfair competition under both contracts, and acted in bad faith in terminating the 2009
contract.  The complaint requested $8,678,475 for lost profits and unearned revenues.   
Discussion
In its complaint, TGI argues that the 2004 and 2009 contracts placed specific
obligations upon DOC, namely, DOC was obligated to cooperate with and assist TGI in
“managing and ensuring the success of the CNUSA program.”  In particular, TGI’s
complaint contains three counts.  In count I of the complaint, TGI alleges that DOC
“systematically and continuously failed to meet its contractual obligations to cooperate” with
TGI under the 2004 and 2009 contracts by (1) “providing only a partial, outdated and
inconsistent list of past advertisers”; (2) “failing to provide a distribution database”; (3)
“failing to provide ThinkGlobal with a detailed and accurate breakdown of distribution
costs”; (4) “failing to cooperate with ThinkGlobal to minimize distribution costs”; (5)
“ignoring its administrative duties, including foregoing semi-annual reviews, performance
assessments, and strategic assessments”; (6) “failing to provide ThinkGlobal with daily, real-
time space on the www.export.gov website”; (7) “failing to commit the cooperation of the
field offices”; (8) “refusing to entertain any discussion about incorporating the FUSE
program into CNUSA”; and (9) “failing to properly administer the 2012 and 2013 options.” 
TGI also asserts in count I of the complaint that all the breach claims associated with 
the 2004 contract accrued on March 11, 2011, after DOC’s refusal to provide documents in
response to a FOIA request.  TGI alleges that it was only then that TGI knew that DOC had
breached its obligations under the 2004 contract. 
In count II of the complaint, TGI alleges, inter alia, that DOC breached its implied
covenant of good faith and fair dealing by repeatedly failing to meet its contractual
obligations under the 2004 and 2009 contracts, and by terminating the 2009 contract in bad
faith.
In count III of the complaint, TGI alleges that DOC unfairly competed with TGI by
hindering its efforts to leverage the FUSE program.
Each count requests the same amount of damages: $8,678,475.
Jurisdiction
DOC argues that TGI “improperly proceeds before this Board” because TGI “has not
allowed the contracting officer a meaningful opportunity to issue a considered final decision

CBCA 4410 7
in this matter.”  DOC alleges that, rather “than submitting documentation explaining how two
no-cost contracts could yield $9 million in damages .  .  . [TGI] simply filed an appeal to
bring its claim before this Board and continue litigation.”  DOC asks the Board to remand
the issues back to the contracting officer for issuance of a final decision.  
DOC’s argument is not persuasive.  Section 7103(f)(2) of the Contract Disputes Act,
41 U.S.C. §§ 7101-7109 (2012) (CDA), requires the contracting officer to respond within
sixty days of receipt of a certified claim by issuing a decision or notifying the contractor of
the time within which a decision will be issued.  As of September 27, 2014, TGI’s claim had
been before the contracting officer for sixty days, and the contracting officer had done
neither of these things.  The Government “has no basis for imposing a documentation
requirement upon [the contractor] as a jurisdictional prerequisite to appeal.”  Corrections
Corp. of America v. Department of Homeland Security, CBCA 2647, 15-1 BCA ¶ 35,971,
at 175,742.   As TGI filed the appeal after September 27, 2014, we find that TGI acted within
its rights in appealing the deemed denial to the Board.  See, e.g., Westclox Military Products,
ASBCA 25592, 81-2 BCA ¶ 15,270, at 75,615.  We possess jurisdiction to consider this
appeal.  
Failure to State a Claim
 
In considering any such motion, “we must assume all well-pled factual allegations are
true and indulge in all reasonable inferences in favor of the nonmovant.”  Kiewit-Turner, a
Joint Venture v. Department of Veterans Affairs, CBCA 3450, 14-1 BCA ¶ 35,705, at
174,846 (quoting Anaheim Gardens v. United States, 444 F.3d 1309, 1314-15 (Fed. Cir.
2006)).  However, to survive the motion, a complaint must contain sufficient factual matter,
accepted as true, to “state a claim that is plausible on its face.”  Ashcroft v. Iqbal, 555 U.S.
662, 678 (2009).   “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”  Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2009)).
This means that the complaint must “raise a right of relief above the speculative level.” 
Twombly, 550 U.S. at 555.   “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”  Iqbal, 556 U.S. at 678.  Further,
courts are “not bound to accept as true a legal conclusion couched as a factual allegation.” 
Papasan v. Allain, 478 U.S. 265, 284 (1986).
A.  Timeliness of the 2004 breach claims (counts I and II)
Here, there is no question that TGI has alleged the necessary elements for a breach of
contract claim.  DOC seeks partial dismissal, however, arguing that all breach “claims under
the 2004 contract are untimely on their face.”  DOC contends that the breach claims under

CBCA 4410 8
the 2004 contract accrued at contract award or April 1, 2004, and that TGI had notice of
them. TGI  alleges that the claims under the 2004 contract were continuing and accrued on
March 11, 2011.  TGI asserts that only after DOC’s refusal to provide documents requested
under FOIA did it know that DOC had breached its obligations under the 2004 contract. 
The CDA requires that “each claim by a contractor against the Federal Government
relating to a contract . . . shall be submitted within 6 years after the accrual of the claim.”  41
U.S.C. § 7103(a)(4)(A); see 48 CFR 33.206(a) (2004) (implementing CDA limitations
period).    A party’s failure to submit a claim within six years of accrual is an affirmative
defense to the claim.  Systems Management & Research Technologies Corp. v. Department
of Energy, CBCA 4068, 15-1 BCA ¶ 35,976, at 175,789; Kellogg Brown & Root Services,
Inc., ASBCA 58175, 15-1 BCA ¶ 35,988, at 175,825.  As the proponent of its affirmative
defense, DOC bears the burden of proving that TGI’s claim for damages under the 2004
contract is untimely.  See Shell Oil Co. v. United States, 751 F.3d 1282, 1297 (Fed. Cir.
2014); Brunswick Bank & Trust Co. v. United States, 707 F.2d 1355, 1360 (Fed. Cir. 1983)
(party raising an affirmative defense normally bears the burden of proof).
 
Pursuant to Federal Acquisition Regulation (FAR) 33.201, a claim against the United
States first accrues on “the date when all events, that fix the alleged liability on either the
Government or contractor and permit assertion of the claim, were known or should have been
known.” 48 CFR 33.201.  In breach of contract actions, “accrual generally occurs ‘at the time
of breach.’” Arakaki v. United States, 62 Fed. Cl. 244, 254 (2004).  “[O]nce a party is on
notice that it has a potential claim the limitations period begins to run.” Cardinal
Maintenance Service, Inc., ASBCA 56885, 11-1 BCA ¶ 34,616, at 170,610 (2010).  Claim
accrual need not await contract completion when all the events that fix liability were known
at an earlier date.  DTS Aviation Services, Inc., ASBCA 56352, 09-2 BCA ¶ 34,288, at
169,379 (“[T]he FAR definition states that for liability to fix for purposes of claim accrual,
only ‘some’ but not necessarily ‘all’ of the injury must be shown.”).
Here, based on the language of the 2004 contract, claims relating to DOC’s failure to
provide information required by section 4 should have been known, and therefore accrued,
upon contract award (April 1, 2004), when DOC failed to provide certain data under the 2004
contract.  TGI was aware of an alleged breach at that time.  TGI argues, however, that claims
under the 2004 contract were continuing and did not accrue until March 11, 2011, after it had
submitted its FOIA request. As for TGI’s continuing breach theory, the alleged breaches here
occurred well before TGI submitted a FOIA request to receive the information stated in
section 4 of the contract.  When DOC did not provide the information upon contract award
or shortly after contract signing, TGI knew or should have been aware of the basis of any
claims it had relating to DOC’s express and implied contract obligations and the claims,
therefore, accrued.

CBCA 4410 9
             TGI’s estoppel argument is also not applicable, as TGI does not allege affirmative
misconduct on the part of DOC that induced TGI not to submit a claim until 2014.  The
failure to allege such misconduct is fatal to its estoppel argument.  California Business
Telephones v. Department of Agriculture, CBCA 135, 07-1 BCA ¶ 33,553, at 166,172.  In
addition, TGI has not alleged any trickery on the part of DOC in this case.  Therefore, the
statutory period of six years was not equitably tolled.  Irwin v. Department of Veterans
Affairs, 498 U.S. 89, 96 (1990).
We find that TGI’s express and implied breach claims relating to the 2004 contract,
and the options under that contract, were untimely.  They must be dismissed for failure to
state a claim because these claims accrued more than six years before TGI submitted its claim
to the DOC contracting officer on July 25, 2014. 
B. Timeliness of the 2009 breach claims (counts I and II)
DOC also seeks to dismiss the 2009 breach claims as untimely, stating that they are
simply a continuation of TGI’s 2004 breach of contract claims.  DOC argues that we should
find that the statute of limitations started to run in 2004 on DOC’s alleged failure to provide
information and documentation to TGI at the outset of the 2004 contract.
“In general, a cause of action against the government accrues ‘when all the events
have occurred which fix the liability of the Government and entitle the claimant to institute
an action.’”  FloorPro, Inc. v. United States, 680 F.3d 1377, 1381 (Fed. Cir. 2012) (quoting
Goodrich v. United States, 434 F.3d 1329, 1333 (Fed. Cir. 2006)).  DOC’s obligation to
provide information under the 2009 contract could not have arisen before the 2009 contract
was awarded.  Accordingly, there is no basis for DOC’s argument that the statute of
limitations applicable to the 2009 contract claims arose prior to 2009.  We recognize that a
great deal of TGI’s complaint is based upon its allegations that DOC failed to provide copies
of documents and information that it was required to provide under the contracts.  Reviewing
the contracts accompanying TGI’s response brief, it seems clear that, although the 2004
contract contained a list of government-furnished data that DOC was to provide to TGI, the
2009 contract contains no such list.  That may affect the merits of TGI’s breach claims.  It
does not, however, make the 2009 breach claims untimely.  To the extent that DOC failed
to provide the information and documentation that it was required to provide under the terms
of its 2009 contract, that is a different cause of action that is separate and distinct from the
causes of action arising out of TGI’s 2004 contract.  DOC’s request to dismiss the 2009
contract claims as untimely is denied.

CBCA 4410 10
C. The merits of the 2009 contract breach claims (counts I and II)
1. The no-cost nature of the contract
DOC argues that, because the 2009 contract was a no-cost contract, and because TGI
admits that it actually earned profits from third parties under that no-cost contract, there is
no set of facts that could entitle TGI to relief.  
Generally, a no-cost contract is a formal arrangement between a government
entity and a vendor under which the government makes no monetary payment
for the vendor’s performance.  Under a typical no-cost contract, a vendor
provides a service that an agency would otherwise perform, but instead of
receiving compensation from the agency, the vendor charges and retains fees
assessed against third parties for its services.
Honorable Barbara A. Mikulski, B-308968 (Nov. 27, 2007) (citations and internal brackets
omitted).   Accordingly, an agency generally “has no financial obligation and the contractor
has no expectation of payment from the government” for services performed under such
contracts.  Id.
Although the Government will not pay for services rendered under no-cost contracts,
that does not mean that the Government is similarly immune from paying damages for
breaching the terms of a no-cost contract in a way that limits the contractor’s ability to earn
monies from third parties under its contract.  In a similar case, Impact Associates, Inc. v.
General Services Administration, CBCA 3552, 15-1 BCA ¶ 35,910, we rejected the
Government’s argument where it issued directives that potentially limited a contractor’s
compensation:
These clauses, the task order, and the underlying schedule contract do not
shield the ordering agency from liability arising from the directives.  The
directives by the ordering agency are not consistent with the contract, and the
limitations of the clauses are not applicable to the directives.  The
Government’s directives were not changes within the scope of the contract, as
they were neither a reduction in participation nor a withdrawal.  Rather, the
agency took away the contractor’s ability to receive compensation for its
services, thereby fundamentally changing the bargain.  Therefore, while the
contract clauses may have insulated the Government from liability in some
circumstances, when the ordering agency acted in a manner inconsistent with
the contract, it was indeed foreseeable that the contractor would be harmed.

CBCA 4410 11
Id. at 175,537; see SUFI Network Services, Inc. v. United States, 755 F.3d 1305, 1312-24 
(Fed. Cir. 2014) (finding contractor entitled to damages for breach, even though contract was
supposed to be at no cost to the Government).  Accordingly, we cannot dismiss TGI’s 2009
contract breach claims simply because the contract at issue was a no-cost contract.  Although
DOC calls TGI’s claim a request for “Government-backed indemnification against TGI’s
failure to achieve more lavish profits” than it actually earned, Respondent’s Motion to
Dismiss at 5, TGI is entitled to attempt to prove that DOC breached the contract and that the
breach caused it damage.
This is not to say that all of the allegations contained in TGI’s claim and complaint
identify actionable contract breaches.  TGI’s complaint is a hodgepodge of allegations of
malfeasance and impropriety by DOC, some of which do not withstand scrutiny as a basis
for a breach claim (particularly when compared with the actual language of the 2009
contract).  For example, TGI alleges that DOC breached the 2009 contract by “[r]efusing to
seriously evaluate incorporating the [Featured United States Exporters (FUSE)] program into
CNUSA as outlined in the 2009 Contract, thereby forcing [TGI] to compete against this
program for U.S. export advertising dollars.”  Appellant’s Opposition to Motion to Dismiss
at 8.  Yet, as it relates to FUSE, the 2009 contract provides only that, “[a]t a later date, the
contractor may also be requested to provide marketing and maintenance services for the
[FUSE] program.”  Complaint, Exhibit B at 4.  There is no language in the 2009 contract
including FUSE in, or obligating DOC to add FUSE to, TGI’s contract.  At most, the
language in the 2009 contract provides TGI with notice of the FUSE program and of the
possibility that DOC might add the FUSE program to CNUSA at some point.  The contract
language does not appear to create any rights for TGI in the FUSE program or create a
contractual obligation upon DOC to “seriously evaluate” adding FUSE to CNUSA.
Similarly, TGI complains that DOC refused TGI’s “requests to reduce its largest cost,
i.e., distribution, by leveraging the Government’s strategic partnerships with official strategic
partners to distribute CNUSA overseas.”  Appellant’s Opposition to Motion to Dismiss at 7. 
Yet TGI cites nothing in the 2009 contract that would require DOC to do that.  TGI appears
to be alleging that, despite the absence of any contractual language obligating DOC to
perform such a task, DOC had an implied duty of good faith and fair dealing to do so.  That
theory does not permit TGI to impose extra-contractual obligations upon the Government that
go beyond what the actual contract terms require.  See CAE USA, Inc. v. Department of
Homeland Security, CBCA 4776, 16-1 BCA ¶ 36,377, at 177,349 (implied duty of good faith
and fair dealing “is not designed to give the contractor additional rights beyond, or greater
rights than, those that the contract provides”).
The motion and briefing that we have before us, however, do not allow us to address
all of TGI’s allegations of breach.  DOC’s motion is focused mainly upon the nature of TGI’s

CBCA 4410 12
no-cost contract, rather than upon which of TGI’s breach allegations are tied to actual
contract terms.  To the extent that DOC wishes to narrow the issues in dispute between the
parties in this appeal, it will need to file a motion (to which TGI can respond) that addresses
with specificity each of TGI’s allegations of breach (which appear to be identified in a list
format on pages 7 and 8 of TGI’s response brief) and show the extent to which some or all
of them are untethered from any contractual requirements under the 2009 contract.
2. The contract termination issue
TGI alleges in its complaint that DOC acted in bad faith by terminating the 2009
contract.  Complaint ¶¶ 221-60.  It is clear from TGI’s allegations that it is actually
complaining about DOC’s failure to extend the contract through the affirmative exercise of
contract options.  
A failure to exercise an option is not a contract termination – it merely reflects the
Government’s decision not to extend the contract.  Uniq Computer Corp. v. United States,
20 Cl. Ct. 222, 235 (1990).  An option is “a unilateral right in a contract by which, for a
specified time, the government may elect to purchase additional supplies or services called
for by the contract, or may elect to extend the term of the contract.”  Alliant Techsystems, Inc.
v. United States, 178 F.3d 1260, 1276 (Fed. Cir. 1999) (quoting FAR language now located
at 48 CFR 2.101 (2015)).  “An option contract generally binds the option giver, not the
option holder,” Continential Collection & Disposal, Inc. v. United States, 29 Fed. Cl. 644,
650 (1993), and it gives the option holder “the legal privilege of not exercising” the option. 
Dynamics Corp. of America v. United States, 389 F.2d 424, 431 (Ct. Cl. 1968) (quoting 1A
Arthur Corbin, Contracts § 259, at 464 (1963)); see Hi-Shear Technology Corp. v. United
States, 356 F.3d 1372, 1380 (Fed. Cir. 2004) (if the contract is renewable at the
Government’s option, the Government is under no obligation to exercise the option).  “The
government’s failure to exercise an option in a contract does not ordinarily give rise to a
breach of contract action.”  Optimal Data Corp. v. United States, 17 Cl. Ct. 723, 731 (1989),
aff’d, 904 F.2d 45 (Fed. Cir. 1990) (table); see Fields v. United States, 53 Fed. Cl. 412, 419
(2002) (“the exercise of the contract’s options rested within the sole discretion of the
[agency], and its decision not to exercise those options does not breach the contract”).
TGI alleges that there are two reasons that the general rule about the Government’s
discretionary right not to exercise an option does not apply to its situation.  First, TGI alleges
that the language of the option in the 2009 contract limits DOC’s discretion and requires
DOC to exercise each option so long as TGI’s performance was satisfactory.  Complaint
¶ 157.  It relies on the following contract language from section 6 of the 2009 contract:

CBCA 4410 13
The initial term of the resulting contract will be for a base year starting
September 1, 2009 and ending August 31, 2010, with options for four (4)
one-year periods based upon satisfactory performance.
Complaint, Exhibit B at 7.  Pursuant to this provision, according to TGI, DOC “was obligated
to exercise the option period provided that [TGI’s] performance with the CNUSA was
‘satisfactory.’”  Complaint ¶ 157.  That is, TGI asserts that, in reality, it had a five-year
contract rather than a contract of only one year, subject only to a requirement that it provide
satisfactory performance each year.  Complaint ¶ 222.  
The inclusion of the words “based upon satisfactory performance” at the end of the
option language does not somehow eliminate the discretion that the Government typically
enjoys in deciding whether to exercise an option.  Section 6 of the contract expressly
addresses “option periods” and sets forth the Government’s right to extend the contract by
one-year periods.  The FAR expressly defines an option as “a unilateral right.”  48 CFR
2.101.  TGI’s interpretation of the provision would take that unilateral right – the right to
decide whether to extend the contract – out of the Government’s hands and give it solely to
TGI.  That is, if TGI were to perform satisfactorily, the Government would have no choice
but to exercise the option, eliminating the Government’s discretion.  That is the reverse of
how the FAR defines an option.  “[O]nly specific language will limit [the Government’s]
choice.”  Sundowner 102, LLC v. United States, 108 Fed. Cl. 737, 741 (2013); see
Government Systems Advisors, Inc. v. United States, 847 F.2d 811, 813 (Fed. Cir. 1988) (“An
option is normally an option, and nothing . . . limited the circumstances under which the
government could decline to exercise that bargained-for right in this case.”).  Here, the option
provision is most reasonably interpreted not as an obligation upon the Government to
exercise the option if TGI performs satisfactorily, but a limitation upon the Government’s
discretion:  that is, the Government cannot exercise the option unless TGI is performing
satisfactorily, even though DOC is not obligated to exercise the option simply because it
finds satisfactory performance.  We cannot find that DOC was required to exercise each
option if TGI satisfactorily performed.  We therefore grant the motion to dismiss for failure
to state a claim, to the extent that it addresses this TGI argument.
Second, TGI asserts that, even if DOC retained the Government’s traditional
discretion in deciding whether to exercise an option, the Government acted in bad faith, with
a specific intent to injure TGI, when it failed to exercise the options.  Complaint ¶ 24.  We
have previously held that a contractor can successfully challenge an agency’s decision not
to exercise an option “if the contractor proves that the decision was made in bad faith or was
so arbitrary or capricious as to constitute an abuse of discretion.”  G2G, LLC v. Department
of Commerce, CBCA 4996, 16-1 BCA ¶ 36,266, at 176,916, reconsideration denied, 16-1
BCA ¶ 36,346 (quoting Greenlee Construction, Inc. v. General Services Administration,

CBCA 4410 14
CBCA 416, 07-1 BCA ¶ 33,514, at 166,062).  Nevertheless, in applying that precedent, we
must recognize that the Government’s right to decline to exercise an option is so broad that,
“unless the contract says otherwise, the Government’s discretion is nearly complete.”  Id.
(quoting Integral Systems, Inc. v. Department of Commerce, GSBCA 16321-COM, 05-2
BCA ¶ 32,984, at 163,472); see 1 Samuel Williston & Richard A. Lord, A Treatise on the
Law of Contracts § 5:15, at 1016 (4th ed. 2007) (the amount of discretion that the option
holder possesses generally leaves the option holder “free to either accept or not, at his or her
whim”).  “Generally, such options are made for the benefit of the Government and absent
express limitations in the contract, contractors have no recourse for the Government’s failure
to exercise an option.”  Brenda R. Ronhaar, AGBCA 98-147-1, 00-1 BCA ¶ 30,591, at
151,074 (1999).  A contractor might be able to establish an abuse of discretion by showing,
for example, that the Government failed to follow mandatory regulatory procedural
requirements in declining to exercise the option, that the decision not to exercise created an
illegality, or that the contract itself otherwise required the agency to consider factors that the
agency did not, in fact, consider.  See, e.g., Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d
859, 874-75 (D.C. Cir. 1970); Northrop Grumman Computing Systems, Inc. v. United States,
93 Fed. Cl. 144, 149 (2010).  Absent the existence of tangible standards that the Government
has to apply in deciding whether to exercise an option, though, a contractor would have an
extremely difficult time challenging a government decision not to exercise.  See Drake v.
Federal Aviation Administration, 291 F.3d 59, 70 (D.C. Cir. 2002) (in applicable
circumstances, an agency’s discretion can be so broad “as to essentially rule out the
possibility of abuse”); Baird Corp. v. United States, 1 Cl. Ct. 662, 664 n.2 (1983) (the greater
the discretion that underscores an agency decision, the heavier the burden of proof the
challenger has in seeking to overturn it).
In this appeal, TGI has not identified any standards in the contract itself that DOC was
required to consider when deciding whether to exercise any options (other than the limitation
upon DOC’s authority requiring that TGI perform satisfactorily before option exercise).  In
addition, although it alleges mismanagement and, perhaps, incompetence in DOC’s handling
of its contract options, see Complaint ¶¶ 221-60, TGI does appear to have alleged any facts
indicating a specific intent by DOC to injure TGI, a necessary element of a bad faith claim
against the Government.  Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234,
1240 (Fed. Cir. 2002).  The Court of Federal Claims has held that, where “the agency was
under no contractual obligation to continue exercising option years, it could not have been
bad faith for the agency to end the contract . . . , even if it did so for ill motives.”  Sundowner,
108 Fed. Cl. at 743.  “The covenant of good faith and fair dealing,” the court held, “presumes
a contract right in the [appellant] that [respondent] has thwarted by extra-contractual
conduct.”  Id.  By failing to exercise an option, the Government generally is “not interfer[ing]
with [appellant’s] contract rights,” but is “merely exercis[ing] its own rights.”  Id.

CBCA 4410 15
Nevertheless, based on the record before us, there is an argument that DOC did, in
fact, actually exercise some of the options, even if it did not satisfy administrative
mechanisms that it might typically follow.  The parties agree that on September 2, 2011, the
DOC contracting officer sent an email message to TGI stating that “[t]he Government is
exercising CLIN (contract line item number) 2001 of DOC/NOAA Contract DC1350-09-
UE0012 (Sept. 3, 2011 to Sept. 2, 2012) at no cost to the Government” and that FAR 52.217-
9, Option to Extend the Term of the Contract, “is hereby added to this contract.”  Complaint
¶ 225; Answer ¶ 225.  “The acceptance of an option, to be effective, must be unqualified,
absolute, unconditional, unequivocal, unambiguous, positive, without reservation, and
according to the terms or conditions of the option.”  Uniq Computer, 20 Cl. Ct. at 231
(quoting Civic Plaza National Bank v. First National Bank in Dallas, 401 F.2d 193, 197 (8th
Cir. 1968)).  There was nothing in this contract’s option clause that set any specific
prerequisites for the manner in which these options could be exercised, Complaint ¶ 221;
Answer ¶ 221, making it appear as though the email message above could constitute an
effective exercise of the option.  Even though the contracting officer further indicated in the
email message that “[a] modification to the contract will be issued to formalize this
agreement,” Complaint ¶ 225, and even though that modification was never issued, TGI
allegedly continued to perform the CNUSA services until 2013 without objection from, and
with the explicit approval of, DOC employees, who were allegedly actively reviewing TGI’s
work during the option years.  It is unclear in the record here whether each party ever viewed
the email message as an effective option exercise or what actions occurred that allowed TGI
to continue providing CNUSA services.  In addition, to the extent that DOC actually
permitted performance through 2013, with or without an affirmative option exercise, it is
unclear what damages, if any, TGI could be seeking for this period of performance (during
which time it presumably was earning monies from third parties with the implicit permission
of DOC employees).  The record here is sufficiently unclear as to warrant further
proceedings, during which time the parties can more fully develop the record on whether
DOC should be viewed as having exercised any of the 2009 contract options at issue here
(other than the first-year option), whether DOC permitted performance of a contract after it
had expired, and what remedies and damages, if any, are available to TGI for that.  We
consequently deny the motion to dismiss for failure to state a claim, to the extent that it
addresses this aspect of TGI’s bad faith assertion.  
D. Unfair competition claims
DOC contends that count III of TGI’s complaint fails to state a claim upon which
relief may be granted.  In count III of its complaint, TGI alleges that DOC “unfairly
competed” with TGI under the 2004 and 2009 contracts “by hindering [TGI’s] efforts to
leverage the BuyUSA.com and FUSE programs.”  Complaint ¶ 305.  It asserts that the
contracts “specifically contemplate[d] that [TGI] would ultimately benefit from the

CBCA 4410 16
programs, but [DOC] never engaged in any discussion with [TGI] about either program.” 
Id. ¶ 306.  TGI also asserts that DOC “unfairly competed” with it “by repeatedly refusing to
cooperate with [TGI] by opening a discussion with . . . its official strategic partners in regard
to the distribution or marketing of the CNUSA program.”  Id. ¶ 296.  Instead, TGI complains,
DOC “leveraged those strategic partner arrangements, including [an] arrangement with
[Federal Express], to increase revenue by benefitting other fee-based government programs
and services in competition with [TGI] and/or to prevent [TGI from] reducing its costs,
which in turn could impact the revenue [DOC] received from these other competing
programs.”  Id. ¶ 297.
 DOC’s motion is akin to a Rule 12(b)(6) motion under the Federal Rules of Civil
Procedure.  To survive the motion, the complaint must contain sufficient factual matter,
accepted as true, that would entitle TGI to the requested relief.  Sigma Services, Inc. v.
Department of Housing & Urban Development, CBCA 2704, 12-2 BCA ¶ 35,173, at 172,591
(citing Arctic Slope Native Ass’n v. Department of Health & Human Services, CBCA 294-
ISDA, et al., 09-2 BCA ¶ 34,281, at 169,350).
DOC correctly argues that neither the 2004 nor the 2009 contract grants TGI a right
to provide services for the FUSE program.  Rather, the 2009 contract states that, “[a]t a later
date, the contractor also may be requested to provide marketing and maintenance for the
[FUSE] program.”  Complaint, Exhibit B at 6 (emphasis added).  DOC never issued an
amendment for TGI to provide services for the FUSE program.  Similarly, there is no
contract language that could be interpreted as requiring DOC to provide “leverage” for TGI
in its BuyUSA.com program or to fold TGI into DOC’s pre-existing shipping contracts with
Federal Express or other shipping contractors.  Indulging in every reasonable inference in
favor of TGI, as we must, we find that TGI has failed to plead sufficient facts to state a
facially plausible claim for relief on an unfair competition theory.  While TGI recognizes that
the contract language does not obligate DOC to add TGI to any of these programs or
contracts, TGI maintains that DOC was required to do so under its implied duty of good faith
and fair dealing. TGI cannot rely upon that theory to create extra-contractual obligations
upon the Government.  See CAE USA, 16-1 BCA ¶ 36,377, at 177,349.  We dismiss, for
failure to state a claim, count III of TGI’s complaint alleging unfair competition.
E. TGI’s Freedom of Information Act challenges
TGI complains that DOC improperly used FOIA “as a tool to harm [TGI] by depriving
it access to documents for years to which it was entitled to receive voluntarily under both [the
2004 and 2009] contracts.”  Complaint ¶ 298.  To the extent that TGI’s contract entitled it
to documents that DOC failed to provide, TGI can potentially complain that the
Government’s failure to deliver those documents constituted a breach of its contract. 

CBCA 4410 17
However, TGI cannot complain to the Board that the Government’s delay in responding to
FOIA requests constituted or is a part of an actionable contract claim.  An entity’s ability to
obtain documents through FOIA is a right created by statute, not by contract.  Challenges to
an agency’s response (or failure to respond) to a FOIA request are properly made to the
United States district courts, 5 U.S.C. § 552(a)(4)(B) (2012), and, even then, the FOIA does
not provide a private right of action for money damages associated with a delay in, or even
malfeasance in, FOIA processing.  Campbell v. United States Department of Justice, 133 F.
Supp. 3d 58, 65 (D.D.C. 2015) (citing Johnson v. Executive Office for United States
Attorneys, 310 F.3d 771, 777 (D.C. Cir. 2002)).  TGI cannot recover damages here for any
DOC delays in processing its FOIA requests, even if the requests sought documents
associated with TGI’s contracts.  To the extent that TGI has included allegations about
DOC’s FOIA delays and alleged gamesmanship in its complaint under the guise of its unfair
competition argument, they do not create a cause of action properly before this Board.
Decision
For the foregoing reasons, DOC’s motion to dismiss for failure to state a claim is
GRANTED IN PART.  Accordingly, 
1.    DOC’s motion to dismiss for lack of jurisdiction is denied.
2.   DOC’s motion to dismiss for failure to state claim is granted as to the 2004
contract breach claims in counts I and II of the complaint and some aspects of the 2009
contract breach claims in those counts -- and denied in part -- as to another aspect of the 2009
breach of contract claims in Counts I and II of the complaint.
3.  DOC’s motion to dismiss for failure to state a claim is granted as to the unfair
competition claims under the 2004 and 2009 contracts in count III of the complaint.
_________________________________
JEROME M. DRUMMOND
Board Judge
We concur:
_______________________________ _________________________________
PATRICIA J. SHERIDAN HAROLD D. LESTER, JR.
Board Judge Board Judge