ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of --

Tech Projects, LLC 

Under RFP Nos. W9124Q-08-T-0003 

W9124Q-08-R-0004 

APPEARANCE FOR THE APPELLANT: 

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APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 58789 

Joseph E. Schmitz, Esq. 

Schmitz & Socarras LLP 

McLean, VA 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

CPT Evan C. Williams, JA 

Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE YOUNGER 

ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION 

Appellant Tech Projects, LLC (Tech Projects), a participant in the Small 

Business Set-Aside Program, seeks to recover costs incurred in connection with two 

requirements issued by the White Sands Missile Range, New Mexico (White Sands or 

Army). The first requirement was to design and install a virtual fence, and the second 

was to operate and maintain target control services. The government subsequently 

withdrew one requirement and cancelled the other. The government now moves to 

dismiss, arguing that we lack jurisdiction because no contracts were awarded. Tech 

Projects opposes, chiefly arguing that it has made the requisite non-frivolous allegation 

of jurisdiction. We deny the motion. 

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 

A. Virtual Fence Requirement 

1. By letter to White Sands dated 12 May 2008, a lead business development 

specialist in the Small Business Administration (SBA), pursuant to section 8(a) of the 

Small Business Act, 15 U.S.C. § 637(a), accepted a requirement for design and 

installation of a virtual fence on behalf of Tech Projects (gov't mot., ex. G-1 ). 

2. In his letter to White Sands, the specialist stated that SBA's "preliminary 

analysis indicates that this requirement is suitable for 8(a) contracting, and that TECH 
PROJECTS, LLC has the requisite capabilities to ... perform the work" (gov't mot., 

ex. G-1). 

3. By letter to SBA dated 8 September 2008, White Sands advised of its 

decision "to withdraw the Virtual Fence requirement from Tech Projects" based upon 

"difficulties in getting detailed information from the contractor in a timely manner" 

(gov't mot., ex. G-2 at 1 ). 

B. Target Control Services Requirement 

4. By letter to White Sands dated 23 May 2008, a lead business development 

specialist at SBA, pursuant to section 8(a), accepted a requirement for the operation, 

maintenance, and other support of Target Control Services on behalf of Tech Projects 

(gov't mot., ex. G-3). 

5. By email dated 26 September 2008 to SBA, the contracting officer advised 

that the requirement "has been cancelled in its entirety and will be performed in-house 

by government personnel" (gov't mot., ex. G-4 ). 

C. Claim and Appeal 

6. By letter to the contracting officer dated 10 December 2008, Tech Projects 

submitted a certified claim aggregating $185,346.40 for both the Virtual Fence and the 

Target Control System requirements (R4, tab 27). 

7. Following multiple difficulties in auditing the claim, as well as an initial 

decision in 2009, and a reconsideration request in 2011, the contracting officer 

rendered his final decision by date of 22 March 2013. The contracting officer 

determined that Tech Projects was entitled to reimbursement for a portion of its initial 

claim and denied a supplemental claim in its entirety. (R4, tab 50 at 10) In his 

decision, the contracting officer also asserted that "[t]he government is in agreement 

with Tech Projects that there is an implied contract when SBA acceptance occurs" (id. 

at 3). The contracting officer further stated that "[i]t is understood that there was never 

a formal written contract but the SBA Acceptance Letter and actions by the 

government could be reasonably perceived by Tech Projects (or any other 8 (a) 

contractor) to constitute an implied contract" (id. at 4). 

8. By letter to the Recorder dated 20 June 2013, Tech Projects brought this 

appeal. In its notice of appeal, which is in the nature of a complaint, Tech Projects 

alleges that the contracting officer "properly recognized that there was a contract in 

fact" regarding the Target Control System requirement (Notice of Appeal at 2). Tech 

Projects further asserted that it disputed the contracting officer's assertion that "there 

was no contract for the Virtual Fence requirement" and asked the Board to 

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"acknowledge that there were two contracts and that[,] in each case, the Contracting 

Officer's actions amounted to a termination for the convenience of the Government" 

(id. at 2). 

DECISION 

A. Contentions of the Parties 

In moving to dismiss, the Army first contends that we lack jurisdiction because 

the two requirements were withdrawn before contract award (gov't mot. at 3-4). The 

Army also urges that Tech Projects fails to allege sufficient facts to establish an 

implied-in-fact contract (id. at 4-5). Finally, the Army asserts that we lack jurisdiction 

over implied-in-law contracts (id. at 5-6). 

In opposing the Army's motion, Tech Projects asserts that it does not claim 

jurisdiction "based on either an express contract or an implied-in-law contract" 

(Memorandum of Law in Opposition to Government's Motion to Dismiss for Lack of 

Jurisdiction (app. opp'n) at 1). Tech Projects then argues that the contracting officer's 

determination that "there is an implied contract when SBA acceptance occurs" (see 

statement 7) is conclusive (app. opp'n at 2-5). 

After filing its opposition to the government's motion, Tech Projects filed both 

a supplemental response and a sur-reply. In both, Tech Projects asserted that the 

record supports "two implied-in-fact contracts (if not two express contracts)" 

(Supplemental Response to the Government's Motion to Dismiss for Lack of 

Jurisdiction (app. supp. resp.) at 1-2; Sur-Reply to Government's Reply to 

Supplemental Response to Government's Motion to Dismiss for Lack of Jurisdiction 

(app. sur-reply) at 7). Tech Projects also says that it "need only prove that either an 

express or an implied-in-fact contract exists" to establish jurisdiction (app. sur-reply 

at 6). We address these contentions below. 

B. Implied-In-Fact Contract 

We deny the Army's motion to dismiss. We conclude that Tech Projects has 

made a non-frivolous allegation that it had implied-in-fact contracts with the 

government. Under 41 U.S.C. § 7102(a), our Contract Disputes Act jurisdiction is 

limited to appeals involving "express or implied contracts for the procurement of 

services and property and for the disposal of personal property." Coastal Corp. v. 

United States, 713 F.2d 728, 730 (Fed. Cir. 1983). In Engage Learning, Inc. v. 

Salazar, 660 F.3d 1346 (Fed. Cir. 2011) the court recited its prior interpretation of a 

comparable provision in the Tucker Act, 28 U.S.C. § 149l(a)(l), which it read to 

"require[] no more than a non-frivolous allegation of a contract with the government." 

Engage, 660 F.3d at 1353. The court further explained that "a plaintiff need only 

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allege the existence of a contract to establish the Board's jurisdiction under the 

[Contract Disputes Act] 'relative to' an express or implied contract with an executive 

agency." Id. 

We followed Engage Learning in American General Trading & Contracting, 

WLL, ASBCA No. 56758, 12-1 BCA ~ 34,905, and in Tele-Consultants, Inc., ASBCA 

No. 58129, 13 BCA ~ 35,234. In American General, we rejected the government's 

argument that the contractor "must prove the existence of an implied-in-fact contract 

for the Board to exercise jurisdiction" over a breach claim. Instead, we quoted Engage 

to reemphasize that "a claimant 'need only allege the existence of a contract to 

establish the Board's jurisdiction." American General, 12-1BCA~34,905 at 171,640 

(quoting Engage Learning, 660 F.3d at 1353). Similarly, in Tele-Consultants, 

13 BCA ~ 35,234 at 172,994, we denied a motion to dismiss for lack of jurisdiction in 

which the government argued that the record contained no evidence of an 

implied-in-fact contract. We explained that "[g]iven [the contractor's] contention here 

that it did indeed directly enter into an implied-in-fact contract with the government..., 

we conclude we possess jurisdiction over this claim." 

The record here supports a similar conclusion. We reject the Army's argument 

that the appeal must be dismissed because Tech Projects "does not allege adequate 

facts to show that an implied-in-fact contract was ever formed" (gov't mot. at 5). To 

the contrary, Tech Projects has advanced more than a "non-frivolous allegation," 

Engage, 660 F .3d at 1353. The record contains the contracting officer's decision, in 

which he stated that "[t]he government is in agreement with Tech Projects that there is 

an implied contract when SBA acceptance occurs" and then declared that "the SBA 

Acceptance Letter and actions by the government could be reasonably perceived by 

Tech Projects (or any other 8 (a) contractor) to constitute an implied contract" 

(statement 7). Relying upon the contracting officer's decision, Tech Projects has 

alleged that he "properly recognized that there was a contract in fact" regarding the 

Target Control System requirement," and Tech Projects prayer for a determination 

"that there were two contracts and that[,] in each case, the Contracting Officer's 

actions amounted to a termination for the convenience of the Government" 

(statement 8), cannot be dismissed as frivolous. Given their grounding, they must be 

regarded as non-frivolous and sufficient to defeat the jurisdictional challenge posed by 

the present motion. 

We stress that we here decide only the issue of whether we have jurisdiction 

over Tech Projects' appeals. Our cases do not support converting a motion to dismiss 

for lack of jurisdiction to one for summary judgment. Tele-Consultants, 13 BCA 

~ 35,234 at 172,994; American General, 12-1 BCA ~ 34,905 at 171,640; Aries Marine 

Corp., ASBCA No. 37826, 90-1 BCA ~ 22,484 at 112,846-47. 

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We accordingly defer ruling whether contracts were formed regarding the two 

requirements to a merits proceeding, whether on a motion for summary judgment or 

after a hearing. 

CONCLUSION 

The government's motion to dismiss is denied. 

Dated: 26 March 2015 

I concur 

~~~ Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

RICHARD SHACKLEFORD 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 

I certify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals in ASBCA No. 58789, Appeal of Tech 

Projects, LLC, rendered in conformance with the Board's Charter. 

Dated: 

5 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals