ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- Tech Projects, LLC UnderRFP Nos. W9124Q-08-T-0003 W9124Q-08-R-0004 APPEARANCE FORTHEAPPELLANT: ) ) ) ) ) )

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 58789

Joseph E. Schmitz, Esq.

Schmitz & Socarras LLP McLean, VA Raymond M. Saunders, Esq.

Army ChiefTrial Attorney CPTEvan C. Williams, JA

Trial Attorney OPINION BYADMINISTRATIVE JUDGE YOUNGER ON THE GOVERNMENT'S MOTION TO DISMISS FORLACK 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, NewMexico (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 onerequirement and cancelled the other. The government now moves to dismiss, arguingthat we lackjurisdictionbecause 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 FORPURPOSES OF THE MOTION A. Virtual Fence Requirement 1. By letterto White Sands dated 12 May 2008, a lead business development specialist in the Small Business Administration (SBA), pursuant to section 8(a) ofthe Small Business Act, 15 U.S.C. § 637(a), accepted a requirement for design and installation ofa virtual fence on behalfofTech Projects (gov't mot., ex. G-1). 2. In his letterto White Sands, the specialist stated that SBA's "preliminary analysis indicates thatthis requirement is suitable for 8(a) contracting, and that TECHPROJECTS, LLC has the requisite capabilities to

...perform the work" (gov'tmot., ex. G-1). 3. By letter to SBA dated 8 September 2008, White Sands advised ofits decision "towithdraw the Virtual Fence requirement from Tech Projects" based upon "difficulties in getting detailed information from the contractor in a timely manner" (gov'tmot., ex. G-2 at 1 ). B. Target Control ServicesRequirement 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 ofTarget Control Services on behalfofTech Projects (gov'tmot., ex. G-3). 5. By email dated 26 September 2008 to SBA, the contracting officer advised that the requirement "hasbeen cancelled in its entirety and will be performed in-house by governmentpersonnel" (gov'tmot., ex. G-4). C. Claim andAppeal 6. By letterto 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 Systemrequirements (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 of22 March 2013. The contracting officer determined that Tech Projects was entitled to reimbursement for a portion ofits initial claim and denied a supplemental claim in its entirety. (R4, tab 50 at 10) In his decision, the contracting officer also assertedthat "[t]he government is in agreement with TechProjects that there is an implied contractwhen SBA acceptance occurs" (id. at 3). The contracting officerfurther stated that "[i]tis understood that there was never a formal written contractbut the SBAAcceptance Letter and actions by the government couldbereasonably perceived by Tech Projects (or any other 8 (a) contractor) to constitute an implied contract" (id. at 4). 8. By letterto the Recorder dated 20 June 2013, Tech Projects broughtthis appeal. In its notice ofappeal, which is in the nature ofa complaint, Tech Projects alleges that the contracting officer "properly recognized that there was a contract in fact" regarding the Target Control System requirement (Notice ofAppeal at 2). Tech Projects further assertedthat it disputedthe contracting officer's assertion that "there was no contract for the Virtual Fencerequirement" and asked the Boardto

2"acknowledgethatthere were two contracts and that[,] in each case, the Contracting Officer's actions amounted to a termination for the convenience ofthe Government" (id. at 2). DECISION A. Contentions of the Parties In moving to dismiss, the Army first contends that we lackjurisdictionbecause 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 lackjurisdiction over implied-in-law contracts (id. at 5-6). In opposingthe Army's motion, Tech Projects asserts that it does not claim jurisdiction "basedon either an express contract or an implied-in-law contract" (Memorandum ofLawin 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 (ifnot 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 Motionto Dismiss for Lack ofJurisdiction (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 establishjurisdiction (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 ContractDisputes Actjurisdiction is limitedto appeals involving "express orimplied contracts for the procurement of services and property and for the disposal ofpersonal property." Coastal Corp. v. UnitedStates, 713 F.2d 728, 730 (Fed. Cir. 1983). In EngageLearning, Inc. v. Salazar, 660 F.3d 1346 (Fed. Cir. 2011) the courtrecited its prior interpretation ofa 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 ofa contractwith the government." Engage, 660 F.3d at 1353. The court further explained that "aplaintiffneed only

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### allege the existence ofa contract to establish the Board'sjurisdiction under the [Contract Disputes Act] 'relative to' an express or implied contract with an executive agency." Id. 

### We followed Engage Learning

### inAmerican General Trading & Contracting, WLL, 

### ASBCA No. 56758, 12-1 BCA**~** 

### 34,905, and in Tele-Consultants, Inc., 

### ASBCA No. 58129, 13 BCA**~** 

### 35,234. InAmerican General, 

### we rejected the government's argument thatthe contractor "mustprove the existence ofan implied-in-fact contract for the Board to exercisejurisdiction" over abreach claim. Instead, we quoted Engage 

### to reemphasize that "a claimant 'need only allege the existence ofa contract to establish the Board'sjurisdiction." American General,**12-1BCA~34,905** 

### at 171,640 (quotingEngage 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 ofan 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 contractwith the government..., we conclude we possessjurisdiction overthis 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'tmot. at 5). To the contrary, Tech Projects has advanced more than a "non-frivolous allegation," Engage, 

### 660 F.3dat 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 bythe 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 "properlyrecognized that there was a contract in fact" regarding the Target Control System requirement," and Tech Projects prayer for a determination "thatthere were two contracts and that[,] in each case, the Contracting Officer's actions amounted to a termination for the convenience ofthe Government" (statement 8), cannotbe dismissed as frivolous. Given their grounding, they must be regarded as non-frivolous and sufficient to defeat thejurisdictional challenge posed by the present motion. We stress that we here decide only the issue ofwhetherwe havejurisdiction over Tech Projects' appeals. Our cases do not support converting a motion to dismiss for lack of jurisdiction to one for summaryjudgment. Tele-Consultants, 

### 13 BCA**~** 

### 35,234 at 172,994;American General, 

### 12-1 BCA**~** 

### 34,905 at 171,640;AriesMarine Corp., 

### ASBCA No. 37826, 90-1 BCA**~** 

### 22,484 at 112,846-47.

4We accordingly deferruling whether contracts were formed regarding the two requirements to a merits proceeding, whether on a motion for summaryjudgment or after a hearing. CONCLUSION The government's motionto dismiss is denied. Dated: 26 March 2015

I concur

# ~~~ AdministrativeJudge Acting Chairman Armed Services Board ofContractAppeals Administrative Judge Armed Services Board ofContractAppeals

RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContractAppeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCA No. 58789, Appeal ofTech Projects, LLC, rendered in conformance with the Board's Charter. Dated:

5 JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals 

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