MOTION TO DISMISS DENIED:  August 9, 2012 
CBCA 2452 
OMNI PINNACLE, L.L.C., 
Appellant, 
v. 
DEPARTMENT OF AGRICULTURE, 
Respondent. 
Adrian A. D’Arcy of Shields Mott Lund, L.L.P., New Orleans, LA, counsel for 
Appellant. 
Josh A. Newton, Office of General Counsel, Department of Agriculture, Little Rock, 
AR, counsel for Respondent. 
Before Board Judges HYATT, DRUMMOND, and WALTERS. 
HYATT, Board Judge. 
This appeal concerns a claim asserted under an alleged implied contract for channel 
excavation and removal of sediment from Bayou Terre Aux Boeufs, Louisiana. The claim 
was presented by appellant, Omni Pinnacle, L.L.C. (Omni), to respondent, the Natural 
Resources Conservation Service (NRCS), a component of the Department of Agriculture. 
Funding for the services performed by Omni was to be provided under a cooperative 
agreement between NRCS and St. Bernard Parish (the Parish), Louisiana, pursuant to the 
Emergency Watershed Protection Program. Omni asserted entitlement to an adjustment of 
its contract price because of inaccurate estimates of the quantity of sediment to be removed. 

     
       
     
       
        
    
    
   
      
       
        
 
   
        
      
        
      
      
     
     
       
      
      
     
       
         
  
2 CBCA 2452 
Respondent has moved to dismiss the appeal on the ground that the Board lacks subject 
matter jurisdiction to entertain it.  For the reasons stated herein, we deny the motion. 
Background 
Under the Emergency Watershed Protection Program, section 216 of Public Law 
81-516, and title IV of the Agricultural Credit Act of 1978, Public Law 95-334, NRCS 
provides funding for emergency measures required to safeguard lives and property from 
floods, drought, and the results of erosion on any watershed whenever fire, flood, or any 
other natural occurrence is causing or has caused a sudden impairment of the watershed. 
NRCS financial assistance is available only to a “qualified sponsor,” either a state or a 
political subdivision of a state, such as a city, county, general improvement district, or 
conservation district. 
On April 17, 2009, NRCS and the Parish entered into a cooperative agreement under 
which NRCS agreed to provide financial and other assistance to the Parish for the purpose 
of installing emergency watershed protection measures to relieve hazards and damages 
created by Hurricane Katrina.  The cooperative agreement provided that the Parish was to 
be responsible for, inter alia, contracting for the watershed improvements to be performed, 
paying the contractor(s), and taking reasonable measures necessary to dispose of any and all 
contractual disputes, claims, and litigation resulting from the projects listed in the 
cooperative agreement. 
In March 2010, the Parish entered into a contract with Omni to perform channel 
excavation and sediment removal of Bayou Terre Aux Boeufs, a major stream within the 
Parish. Under this contract, Omni was to be paid for its work by the Parish. Under the terms 
of the cooperative agreement, NRCS would reimburse the Parish for approved expenses 
incurred by the Parish for the watershed improvements made by Omni under its contract 
with the Parish. 
The contract between Omni and the Parish specified that the work to be performed 
by Omni would be reimbursed on a stated price per cubic yard basis. The contract estimated 
that there would be about 119,580 cubic yards of sediment to be removed from the Bayou. 
According to Omni, the specifications were inaccurate and only 49,888.69 cubic yards of 
sediment were ultimately removed.  
Omni realized that the estimate was overstated in the early stages of the project and 
requested a meeting to discuss, among other matters, this issue and renegotiation of the 
contract price. A meeting took place on June 22, 2010, and was attended in person by 
representatives of Omni, the Parish, and the project engineers.  A representative of NRCS 

       
      
   
       
     
     
      
        
     
   
     
      
       
       
     
    
         
     
       
 
 
3 CBCA 2452 
participated by telephone. At the meeting, Omni voiced its reluctance to move forward 
based on the original contract price. According to Omni, the NRCS representative 
responded that Omni should either attempt to renegotiate the price at that time, or perform 
the work and submit its actual costs at the end of the project. Omni understood this to mean 
NRCS would pay Omni on a cost reimbursement basis. 
Omni maintains that, in reliance on its understanding that it would be paid its costs, 
it proceeded to complete the work without renegotiating the price. Omni further alleges that 
NRCS at all times was fully directing the administration of the contract and disbursement 
of contract funds. Omni also alleges that NRCS was heavily involved in the preparation of 
bid specifications and estimates. Additionally, NRCS, according to Omni, made numerous 
owner-type decisions under the contract. Taken as a whole, Omni asserts that NRCS, 
through its actions, effectively entered into an implied-in-fact contract with Omni.  
At the conclusion of contract performance, Omni sought to get paid for its work on 
a cost-plus-fee basis, and submitted a request for payment to NRCS. 
1 The agency responded 
that it had no contract with Omni and advised that the Parish was the party responsible for 
paying for the work. Subsequently, Omni submitted a certified claim to an NRCS 
contracting officer and requested a final decision pursuant to the Contract Disputes Act 
(CDA). The NRCS representative responded that since the contract was between Omni and 
the Parish she had no authority to issue a final decision. Omni then appealed the deemed 
denial of its claim to the Board. 
Discussion 
Appellant alleges that NRCS entered into an implied-in-fact contract with it to 
perform channel excavation and sediment removal in Bayou Terre Aux Boeufs. Respondent 
questions whether subject matter jurisdiction exists such that the Board may entertain this 
appeal.  
1 Omni advises that it has sought payment from the Parish, as well, but has not 
been paid by either the Parish or NRCS. 

   
   
    
  
      
      
   
        
    
     
      
       
      
      
 
      
     
 
    
4 CBCA 2452 
Initially, respondent made two principal arguments: (1) there was no express or 
2implied contract between Omni and NRCS ; and (2) even if there was such a contract, the
construction services procured were not for the direct benefit of the Government and thus 
it was not the type of contract that is covered by the CDA. 
In this regard, the Board’s subject matter jurisdiction under the CDA “applies to any 
express or implied contract . . . made by an executive agency for” -­
(1) the procurement of property, other than real property in being; 
(2) the procurement of services; 
(3) the procurement of construction, alteration, repair or maintenance of real 
property; or 
(4) the disposal of personal property. 
41 U.S.C. § 7102(a). The Court of Appeals for the Federal Circuit has explained that the 
term procurement refers to “the acquisition by purchase, lease or barter, of property or 
services for the direct benefit or use of the Federal Government.” Wesleyan Co. v. Harvey, 
454 F.3d 1375, 1378 (Fed. Cir. 2006) (quoting New Era Construction v. United States, 890 
F.2d 1152, 1157 (Fed. Cir.1989)); accord Inversa, S. A. v. Department of State, CBCA 440, 
07-2 BCA ¶ 33,690, at 166,778-79. Under the Federal Acquisition Regulation (FAR), a 
“contract” is defined to be “a mutually binding legal relationship obligating the seller to 
furnish the supplies or services (including construction) and the buyer to pay for them. . . . 
Contracts do not include grants and cooperative agreements covered by 31 U.S.C. § 6301, 
et seq.”  48 CFR 2.101 (2011). 
The use of cooperative agreements by a federal agency is governed by the Federal 
Grants and Cooperative Agreements Act, which addresses the distinction between a grant 
and a procurement, stating that: 
2 Respondent’s initial brief in support of its motion was filed prior to the 
decision issued by the Court of Appeals for the Federal Circuit in Engage Learning, Inc. v. 
Salazar, 660 F.3d 1346, 1353-54 (Fed. Cir. 2011), holding that a litigant need only allege 
a non-frivolous implied-in-fact contract to avoid dismissal for lack of subject matter 
jurisdiction. 

  
   
      
    
       
     
   
   
       
       
  
    
       
             
             
              
               
        
           
            
         
         
     
                
              
             
             
5 CBCA 2452 
An executive agency shall use a cooperative agreement as the legal instrument 
reflecting a relationship between the United States Government and a State, 
a local government, or other recipient when – 
(1) the principal purpose of the relationship is to transfer a thing of 
value to the State, local government, or other recipient to carry out a public 
purpose of support or stimulation authorized by a law of the United States 
instead of acquiring (by purchase, lease or barter) property or services for the 
direct benefit or use of the United States Government; and 
(2) substantial involvement is expected between the executive agency 
and the State, local government, or other recipient when carrying out the 
activity contemplated in the agreement. 
31 U.S.C. § 6305. 
Ordinarily, an arrangement such as the one originally contemplated by NRCS and the 
Parish would not give rise to a cause of action under the CDA. The underlying arrangement, 
a cooperative agreement between the Federal Government and a local government, is a use 
of grant funds not subject to the provisions of the CDA. Nutritional Support, Inc., AGBCA 
2002-141-1, 03-1 BCA ¶ 32,115 (2002). This is so even if there is substantial federal 
government involvement with the agreement between the municipality and contractor. 
The United States Court of Appeals for the Federal Circuit has held that the 
unambiguous language of the CDA is limited to express or implied contracts for the 
procurement of services and property and for the disposal of personal property. The CDA 
does not cover all government contracts. Coastal Corp. v. United States , 713 F.2d 728, 730 
(Fed. Cir. 1983). The Federal Circuit has stated: 
In determining whether contracts are within the scope of the Contract Disputes 
Act, we are mindful of the legislative intent behind that Act. Congress created 
the Contract Disputes Act to promote economy, efficiency and effectiveness 
in the government’s procurement of goods. Accordingly, the associated 
regulations emphasize the buyer-seller relationship. 
G. E. Boggs & Associates, Inc. v. Roskens , 969 F.2d 1023, 1027 (Fed. Cir. 1992); see also 
Delta Steamship Lines, Inc. v. United States , 3 Cl. Ct. 559, 569 (1983) (the conventional 
contract for the direct procurement of property, services and construction, to be used directly 
by the Government, is the type of Government contract covered by the Act.); Opportunities 

             
      
  
    
   
     
       
     
      
      
      
    
    
 
       
      
      
     
     
    
        
    
      
        
               
        
             
          
    
       
       
 
6 CBCA 2452 
for the Aging Housing Corp. v. Department of Housing & Urban Development , CBCA 1501, 
10-1 BCA ¶ 34,311 (2009). 
In its recent decision in Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1353-54 
(Fed. Cir. 2011), the Court of Appeals for the Federal Circuit ruled that to invoke the 
Board’s jurisdiction to entertain an appeal relative to an express or implied contract under 
the CDA, a contractor need only allege the existence of a contract with an executive agency. 
The contractor is then entitled to the opportunity to pursue discovery and attempt to prove 
that a contract existed. If appellant is thereafter unable to establish the existence of an 
alleged contract with the Government, the proper remedy is dismissal for failure to state a 
claim.   Id. at 1354. 
In light of the Engage Learning opinion, NRCS refocused its arguments on the 
second prong of its argument. Accepting, for the purpose of going forward, the proposition 
that there was an implied contract between NRCS and Omni, NRCS maintains that such a 
contract would nonetheless not qualify as a procurement contract as that term is defined in 
the CDA. Respondent argues that Engage Learning did not address or alter the 
jurisdictional requirement for a procurement contract and cites various decisions in which 
no procurement contract was found to have existed. See, e.g., Rick’s Mushroom Service, 
Inc. v. United States, 521 F.3d 1338, 1343-44 (Fed. Cir. 2008) (affirming dismissal of claim 
for lack of subject matter jurisdiction where the cost-sharing contract between Rick’s 
Mushroom and the Government was not a procurement contract within the meaning of the 
CDA). 
Respondent points out that the relationship between it and the Parish is solely that of 
grantor/grantee under the emergency watershed protection program, an arrangement not 
encompassed within the FAR’s definition of a contract. The parties entered into a 
cooperative agreement under which the Parish was defined to be a sponsor for the purposes 
of obtaining the agreed-to improvements and repairs. The Court of Appeals for the Federal 
Circuit has observed that 
“the government’s involvement in the financing and supervision 
of a contract between a public agency and a private contractor does not create a contract 
between the government and the contractor, for the breach of which the contractor may sue 
the government.” New Era Construction v. United States , 890 F.2d 1152, 1155 (Fed. Cir. 
1989). 
Thus, even if Omni can meet its burden to prove that an implied contract with NRCS 
came into existence, respondent maintains that such an instrument would nonetheless not 
be a procurement contract as defined by statute, regulation, and the case law. 
NRCS urges that even if Omni’s allegation that there is an implied contract between 
it and NRCS is sufficient to establish jurisdiction, the alleged contract cannot satisfy the 
requirement that the contract be one for the procurement of property, services, and 

   
     
       
       
       
  
  
  
        
        
      
     
     
      
      
    
      
    
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7 CBCA 2452 
construction for the direct benefit of the Government. Omni responds that the Government 
received a direct benefit through the achievement of its mandate under the Emergency 
Watershed Protection Program. It also maintains that it is entitled to proceed at this juncture 
because it is enough to allege that the implied contract created between it and NRCS is a 
procurement contract. Although respondent’s position may ultimately be determined to be 
valid, it would be premature for the Board to come to this conclusion now. 
Appellant has alleged that the implied contract was a procurement contract.  Under 
the reasoning of Engage Learning, this assertion suffices to invoke our CDA jurisdiction. 
Thus, this question is a matter to be addressed on a fully developed record after Omni has 
had an opportunity to conduct discovery with respect to whether the alleged contract would 
qualify as a CDA procurement. Omni may well not be able to prove that the alleged implied 
contract was a procurement contract within the meaning of the CDA. Indeed, at its 
inception, the matter involved a grant agreement between the Parish and NRCS, and was 
clearly not within the purview of the Board’s jurisdiction. At this preliminary stage of 
proceedings, however, Omni has alleged that an implied contract for the procurement of 
construction services for the benefit of the Government came into existence. Appellant must 
be afforded the opportunity to prove its allegations. Once discovery is completed, it may be 
appropriate to reassess whether a procurement contract was created between the two parties. 
Decision 
The motion to dismiss for lack of jurisdiction is DENIED . 
CATHERINE B. HYATT 
Board Judge 
We concur: 
JEROME M. DRUMMOND RICHARD C. WALTERS 

8 CBCA 2452 
Board Judge Board Judge