1 

ARMED SERVICES BOARD OF CONTRACT APPEALS

OPINION BY ADMINISTRATIVE JUDGE ARNETT 

 This appeal arises from denial of a claim filed by OSC Solutions, Inc. (OSC or 

appellant) seeking $1,152,858 for store labor services incurred in performance of a 

Blanket Purchase Agreement (BPA) with the U.S. Navy (Navy or government) (see 

generally R4, tab 6). OSC contends that it was not compensated for store labor service 

costs because only a “small percentage” of the orders estimated in the BPA were filled 

with OSC products and OSC’s service costs were included within the cost of its 

products rather than priced separately (id. at 115). Thus, OSC only received payment 

for service costs associated with its products that were ordered which was insufficient 

to cover the service costs it incurred. 

 The Navy asserts that the BPA was not a contract as it did not obligate any 

funds or bind the government to order the estimated quantity of OSC products. The 

Navy notes that OSC was invited through the solicitation and during discussions to 

submit separate pricing for store labor services but responded that services were 

provided at “no additional charge” (gov’t br. at 9-10). 

 

We have previously determined that we have jurisdiction over this appeal 

pursuant to the Contract Disputes Act of 1978, 41 U.S.C. §§ 7101-7109 (CDA). See

OSC Sol., Inc., ASBCA No. 63294, 23-1 BCA ¶ 38,266 at 185,805. Familiarity with 

the facts is presumed. The parties elected to submit this appeal on the record pursuant 

to Rule 11 and requested that the Board decide entitlement only. 

 

 Because the BPA is not a contract for purposes of the CDA, and OSC cannot 

prevail under express or implied-in-fact contract theories, the appeal is denied. 

Appeal of - )

)

OSC Solutions, Inc. ) ASBCA No. 63294

)

Under Contract No. N00189-20-A-0002 )

APPEARANCE FOR THE APPELLANT: Frank V. Reilly, Esq.

 Oakland Park, FL

APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq.

 Navy Chief Trial Attorney

Philip T. Rappmund, Esq.

 Trial Attorney
2 

FINDINGS OF FACT 

The Solicitation: 

 1. On or about May 2, 2019, the Navy issued a solicitation for a BPA1

 to 

provide maintenance, repair, and operations (MRO) supplies and materials for sale in 

“shop stores” at four Naval Facility Public Works Department (PWD) locations in the 

Northeastern United States (R4, tab 7 at 565). 

 2. The Performance Work Statement (PWS) required the contractor to “furnish 

all labor, supplies, equipment, management, supervision, and reports necessary to 

maintain an adequate supply of all parts, materials, and equipment needed to 

accomplish the needs of each PWD” (id. at 565). The contractor was required to fill 

“all customer requests for material” and “research and procure all items from vendors 

available from the approved GSA Schedules incorporated into” the BPA (id. at 572, 

582). If the Navy needed material that was not stocked in the shop stores through the 

approved GSA Schedules, the PWS required the contractor to assist the Navy to find 

sources of supply (id. at 580). 

 

 3. PWS § 2, Determination of Supply Requirements, indicated that the Navy 

could submit purchase requests for brand name or manufacturer-specific items. Unless 

otherwise stated in the purchase request, the contractor “may propose substitutes 

available on the Schedules” and the Navy could approve or reject the proposed 

substitution. (Id. at 568) Further, PWS § 2.1.4 stated, “MRO supplies and other 

product lines considered to be MRO items not initially identified in the Schedule 

provided may be added at any time based on the requirements of the ordering 

activity and must be added to the GSA Schedule” (id. at 568) (emphasis added). 

Regarding Ordering, PWS § 5.1 indicated, “The contractor is expected to research 

outside its own circle of suppliers to fulfill the Government’s needs in an expeditious 

manner in accordance with their Contractor Teaming Arrangement” (id. at 572). 

 4. The PWS identified a Shop Stores Inventory List and an Authorized Use 

List as attachments2

 (id. at 565, 582). During quarterly reviews, the Navy could 

modify the list as well as “present the contractor with a list” of shop store stock list 

items that were purchased through other sources. In that event, the contractor would 

be responsible to provide “documentation supporting why those items could not be 

purchased through the shop store.” (Id. at 581)

1 A blanket purchase agreement (BPA) is a “simplified method of filling anticipated repetitive 

needs for supplies or services by establishing ‘charge accounts’ with qualified sources 

of supply” (FAR 13.303-1). 2 The attachments do not appear to be included in the record. 
3 

 5. The solicitation stated, 

This BPA does not obligate any funds. Funds will be 

obligated by placement of calls under Federal Acquisition 

Regulation Subpart 8.4, entitled “Federal Supply 

Schedules”, or the use of a Government wide purchase 

card issued under the Federal Acquisition Regulation 

13.303 entitled “Blanket Purchase Agreements”, and 

agency regulations.3

(Id. at 5). Further, it noted, “Orders will be placed against this BPA via Electronic 

Data Interchange (EDI), FAX, paper, or oral communications” (id. at 541). The 

solicitation stated, “Non-Schedule items will not be procured using the resulting 

Agreement” (id. at 551). 

 6. The solicitation provided the following instruction regarding discount rates 

in price proposals submitted by offerors: 

The offeror shall propose a fixed discount rate to be 

applied to the service and material requirements which will 

be established as a term in the resulting BPA. The offeror 

shall offer a fixed discount for each of the following: 

o Services; 

o Schedule 51V Materials; and 

o Each Schedule other than 51V used to complete the 

Test Market Basket. 

Note: All requirements to include services and materials 

must be on a FSS Schedule; no “open market” materials 

are permitted. 

(Id. at 550) (emphasis omitted)4

3

 “The Federal Supply Schedule program is directed and managed by GSA and provides 

Federal agencies . . . with a simplified process for obtaining commercial supplies and 

commercial services at prices associated with volume buying” FAR 8.402(a).

4 Schedule 51V Materials refers to GSA Schedule 51V Hardware Superstore. “Open market” 

refers to items that are not on Federal Supply Schedules. FAR 8.402(f).
4 

 7. The solicitation provided the following instruction regarding services 

pricing: 

Separate price information shall be submitted for each of 

the four (4) PWDs for a total of twelve (12) months of 

service support as required by the PWS. The price for the 

services shown in this spreadsheet shall include all fullyburdened labor required to provide services and shall be 

less than or equal to the offeror’s GSA Schedule 51 V 

rates. The offeror shall apply the Services Discount 

proposed in Tab 1 of Attachment 3 to the total proposed 

services price, which will result in the Total Discounted 

Service Price . . . . 

(Id. at 550) 

OSC’s Proposal and Revisions: 

 8. In response to the solicitation, OSC submitted a price proposal which stated, 

“10% Store service is included within the price of the products therefore there are no 

additional charge (sic) for services” (R4, tab 8 at 598). OSC’s proposal also included 

a table to reflect the monthly and total service price for each of the four shop store 

locations. It stated a cost of $0 as the monthly and total service price for each location 

and included the following note under the table: “Store service is included within the 

price of the products therefore there are no additional charge (sic) for services.” (Id.

at 599) 

 9. On August 2, 2019, the Navy indicated that it would conduct exchanges and 

request final proposal revisions. It identified weaknesses in OSC’s proposal, including 

noting that OSC’s price proposal “must contain separately priced services.” It 

requested that OSC address this concern. (R4, tab 9 at 605-06) 

 10. In response, OSC provided a seven-page letter dated August 2, 2019 and a 

subsequent email on August 8, 2019. Both communications from OSC stated: 

OSC is offering the required services to the Navy for no 

additional charge as they are incidental to the purchasing 

of the products from our GSA schedule contract. There is 

therefore no additional charge for OSC to offer the Navy 

the required services under the contract. Required services 

are included for no additional charge. 

(R4, tabs 10 at 613, 11 at 615-16) 
5 

The Agreement: 

 11. On January 2, 2020, the Navy and OSC entered into BPA 

No. N0018920A0002. The BPA included a base ordering period through January 1, 

2021, and four subsequent option years. (R4, tab 2 at 4, 39) 

 12. Paragraph (1) of the BPA stated, “The following contract services/products 

can be ordered under this BPA. All orders placed against this BPA are subject to the 

terms and conditions of the contract, except as noted below . . .” (Id. at 5) It noted, 

“Open market items may not be ordered under this BPA” (id.).5

 

 13. Paragraph (3) of the BPA stated, “The Government estimates, but does not 

guarantee, that the volume of purchases through this agreement will be 

$70,070,404.09” (id.). 

 14. Paragraph (4) of the BPA stated, 

 

This BPA does not obligate any funds. Funds will be 

obligated by placement of calls under Federal Acquisition 

Regulation Subpart 8.4 entitled “Federal Supply 

Schedules”, or the use of a Government wide purchase 

card issued under the Federal Acquisition Regulation 

13.303 entitled “Blanket Purchase Agreements”, and 

agency regulations. 

(Id.) 

 15. Paragraph (11) of the BPA stated, 

“Best Value: The Fleet Logistics Center Norfolk, 

Contracting Office, and OSC Solutions, enter into this 

blanket purchase agreement with the intent of ensuring the 

best value is achieved for the Navy when acquiring 

required materials and services as detailed in the PWS.” 

(Id. at 6) 

 16. Both the solicitation and the BPA referenced Federal Acquisition 

Regulation (FAR) 8.405-3, Blanket Purchase Agreements, and FAR 13.03, Blanket 

Purchase Agreements, and both consistently characterized the arrangement between 

the parties as a “BPA” (R4, tabs 7 at 541, 2 at 5). 

5 Open market items are items not on the Federal Supply Schedules or GSA schedules (FAR 

8.402(f)).
6 

 17. FAR 16.506(d)(1) instructs the government to insert FAR clause 52.216-

21, Requirements, in solicitations and contracts where a requirements contract is 

contemplated. Neither the solicitation nor the BPA referred to the arrangement 

between the parties as a “requirements contract” or referenced FAR Part 16.503 or 

FAR clause 52.216-21. (see generally R4, tabs 2 and 7) 

 18. We find the agreement between the parties to be a BPA, not a requirements 

contract. 

OSC’s Requests for Compensation for Store Labor Services: 

 19. After award of the BPA, OSC staffed the shop stores and filled an 

unidentified number of orders placed by the Navy under the BPA for products on 

OSC’s GSA Schedule. The dollar value of orders placed on OSC’s BPA was less than 

the government estimate (answer ¶ 23). 

 

 20. On December 31, 2020, the government exercised Option Period I, which 

extended the BPA to January 1, 2022 (R4, tab 5 at 112-13). 

 21. In July 2021, OSC submitted an invoice requesting payment of 

$1,013,729.28 for “unabsorbed store services direct costs.” OSC stated that it had 

discounted its store service costs based on the estimated volume of sales indicated in 

the BPA, which had not been realized. (R4, tab 12 at 619) In October 2021, OSC 

requested a “resolution” of the unpaid invoice indicating that it desired to cancel its 

obligation under the BPA effective October 29, 2021, if the government would not pay 

the invoice (R4, tab 13 at 627).6

 22. On November 19, 2021, the Navy indicated its intent not to exercise the 

next option period (R4, tab 12 at 622-23). As a result, the BPA expired on 

December 31, 2021. On November 29, 2021, the contracting officer stated that there 

was “no basis for the payment of OSC’s labor service invoices” and indicated that the 

Navy did not intend to pay the invoices or modify the BPA “to permit such charges” 

(R4, tab 13 at 621). 

 23. On February 17, 2022, OSC filed a certified claim seeking $1,152,858 for 

store labor services incurred in the performance of the BPA (see generally R4, tab 6). 

Rather than price the service costs separately, OSC included its store service costs 

within the cost of its products. OSC asserted that its service costs were not 

compensated because the Navy ordered “a small percentage” of the product amount 

estimated in the BPA, and OSC only received payment for services associated with its 

6 OSC incorrectly asserts that the Navy “backed out of” the BPA by declaring it 

“unenforceable” to avoid paying OSC (app. reply at 23).
7 

products that were ordered. Had the BPA estimate been realized, OSC concluded that 

it would have been paid in full. (Id. at 115-18) 

 24. On April 18, 2022, the Navy denied OSC’s certified claim (see generally

R4, tab 1). The contracting officer concluded that the BPA did not guarantee a 

particular volume of sales, that the BPA did not impose a contractual obligation upon 

the Navy, and that OSC made a business decision not to propose separate pricing for 

store labor prices since that was specifically identified in the Solicitation and discussed 

in the exchanges prior to award. The contracting officer noted that OSC elected to 

include its store service costs within the price of the products stating that “there are no 

additional charge for services.” (Id. at 1-2) 

 25. On June 2, 2022, OSC filed an appeal with the Board seeking $1,153,8587

for labor service costs it allegedly incurred to staff the four Naval PWD locations 

under the BPA. The appeal was docketed as ASBCA No. 63294. 

DECISION 

I. The Parties’ Contentions 

 OSC asserts that the BPA was a contract because it was an “order” which 

obligated OSC to provide staffing and, therefore, obligated funds to pay for staffing 

(app. br. at 11). OSC contends that it processed 100% of the estimated orders8

 which 

included “prohibited orders” for other vendors’ products but was only paid store labor 

service costs for the portion of the orders (approximately 17%) that were for OSC 

products (id.). OSC concludes that “only products on OSC’s authorized GSA pricelist 

could be ordered” and characterizes government purchases through other vendors as 

“prohibited open market purchases” (id. at 1, 5). In effect, OSC posits the BPA as a 

requirements contract9

 conferring exclusive rights upon OSC to fulfill all orders under 

the BPA with OSC’s products thereby earning store labor service costs for every order 

placed (id. at 11). Alternatively, OSC asserts that the Navy should be required to pay 

for OSC’s services under an implied in fact or constructive change theory since the 

Navy “cannot get free services by ordering prohibited goods outside the terms and 

conditions of the Order” (id. at 12). 

7 The amount sought in OSC’s complaint for $1,153,858 differs by $1,000 from the amount 

stated in OSC’s claim in the amount of $1,152,858. In its reply brief, OSC clarified 

that the claim amount of $1,152,858 is the correct amount sought.

8 The inference that OSC processed orders for other vendors’ products differs from its claim 

that the “estimated volume of orders did not materialize” (R4, tab 6 at 115). There is 

no evidence in the record that OSC filled orders for other vendors’ products.

9 While it does not use this term, OSC treats the BPA as if it were a requirements contract 

under FAR 16.503.
8 

 The Navy asserts that the BPA was not a contract as it did not obligate any 

funds and did not bind the government to order the estimated quantity. The Navy 

notes that OSC was invited both through the solicitation and during discussions to 

submit labor pricing, and OSC responded that its service costs were included in the 

price of the products and therefore “no additional charge” (gov’t br. at 9-10). The 

Navy contends that OSC made a “deliberate business decision in pricing its proposal” 

and is not entitled to relief under any legal theory (id. at 14). Finally, the Navy asserts 

that it did not enter into a requirements contract with OSC (gov’t reply at 4-5). 

II. Standard of Review under Board Rule 11 

 

 Under Board Rule 11, the parties may waive a hearing and instead have the 

Board issue a decision based on the record. “Unlike a motion for summary judgment, 

which must be adjudicated on the basis of a set of undisputed facts, pursuant to Board 

Rule 11, the Board ‘may make findings of fact on disputed facts.’” U.S. Coating 

Specialties & Supplies, LLC, ASBCA No. 58245, 20-1 BCA ¶ 37,702 at 183,031 

(citing Grumman Aerospace Corp., ASBCA No. 35185, 92-3 BCA ¶ 25,059 

at 124,886 n.13). 

III. OSC cannot prevail under an express contract theory. 

A. The dispute arises under the BPA, not the Schedule Contract. 

First, we must address where the dispute arises. The Court of Appeals for the 

Federal Circuit established a “bright-line rule” in its decision in Sharp Electronics v. 

McHugh that “all disputes requiring interpretation of the schedule contract go to the 

schedule [contracting officer], even if those disputes also require interpretation of the 

order, or involve issues of performance under the order.” 707 F.3d 1367, 1373 (Fed. 

Cir. 2013). However, the Court explained the application of this rule does not prevent 

the contracting officer from construing the language of the order or to apply relevant 

provisions of the schedule contract as long as there is no dispute in their meaning. The 

Federal Circuit held: 

FAR 8.406-6 does not authorize an ordering CO to decide 

a dispute requiring interpretation of schedule contract 

provisions, in whole or in part, regardless of whether the 

parties frame the dispute as pertaining to performance. 

However, the ordering CO is certainly authorized to 

construe the language of the order (or its modifications). 

Because an order's details—not merely price, quantity, and 

specifications, but also permissible variation in quality or 

quantity, hours and location of delivery, discounts from 

schedule pricing, etc.—are arranged between the schedule 
9 

contractor and the ordering CO, the ordering CO is able to 

construe these commonly disputed terms as long as the 

dispute does not involve interpretation of the schedule 

contract. 

(Id. at 1374) 

Pursuant to the bright-line rule from Sharp Electronics, we must determine whether 

this dispute requires interpretation of schedule contract provisions, in whole or in part. 

Id.

 In this case, the dispute does not require interpretation of or a dispute regarding 

schedule contract provisions. Instead, OSC’s claim focuses on the BPA and its 

asserted rights under the BPA. The Navy focuses on how OSC bid the BPA and 

asserts that the schedule contract has no relevance to this appeal (gov’t reply at 5). We 

agree. 

B. This BPA is not a contract. 

 While OSC attempts to bind the government to exclusively purchase OSC 

products, this BPA is not a requirements contract, or even a contract at all. There are 

fundamental differences between a requirements contract and a BPA. A requirements 

contract is a binding contract; a BPA generally is not. A requirements contract 

“creates a binding contractual obligation upon the government to order, and for the 

contractor to furnish the government’s needs or requirements of a specific item or 

service for a specified period of time.” Gen. Dynamics Ordnance and Tactical Sys., 

Inc., ASBCA No. 56870, 11-2 BCA ¶ 34,774 at 171,128 (citing Medart, Inc. v. Austin, 

967 F.2d 579, 581 (Fed. Cir. 1992)); see also FAR 16.503. “[A]n essential element of 

a requirements contract is the promise by the buyer to purchase the subject matter of 

the contract exclusively from the seller.” Modern Sys. Tech Corp. v. United States, 

979 F.2d 200, 205 (Fed. Cir. 1992). “[I]t is the very essence of a requirements 

contract . . . that the buyer agree to turn to the supplier for all of its needs.” Id. at 206 

(quoting Torncello v. United States, 681 F.2d 756 (Cl. Ct. 1982)). 

 

 Conversely, a BPA that does not impose a binding obligation upon the parties is 

not a contract. Crewzers Fire Crew Transp. Inc. v. United States, 741 F.3d 1380, 1384 

(Fed. Cir. 2014); Modern Sys. Tech Corp., 979 F.2d at 202-04. The Court of Appeals 

for the Federal Circuit and the Board have consistently held that a BPA was not a 

contract where it lacked mutuality of consideration and found that separate contracts 

“come into being each time the Government ordered services [under the BPA] and 

appellant provided such services.” Hewlett-Packard Co., ASBCA Nos. 57940, 57941, 

13-1 BCA ¶ 35,366 at 173,551 (quoting Julian Freeman, ASBCA No. 46675, 94-3 

BCA ¶ 27,280 at 135,906); see also Dr. Chauncey L. Duren d/b/a Chesapeake 

Orthopedics, ASBCA No. 35773, 90-1 BCA ¶ 22,386 at 112,487. Once an order is 
10 

placed under a BPA, a contract is created with respect to that order, but the BPA is not 

a contract where it lacks mutuality of consideration. See, Hewlett-Packard Co., 13-1 

BCA ¶ 35,366 at 173,551 (discussing Zhengxing v. United States, 204 F.App’x 885, 

886-87 (Fed. Cir. 2006), aff’g, 71 Fed. Cl. 732 (2006)). 

 A contract with the government requires (1) mutuality of intent, (2) 

consideration, (3) an unambiguous offer and acceptance, and (4) actual authority on 

the part of the government’s representative to bind the government in contract. 

Anderson v. United States, 344 F.3d 1343, 1353 (Fed. Cir. 2003). A failure of any of 

these requirements precludes the existence of a valid contract. 

 Here, the BPA is not a contract because it lacks mutuality of consideration. The 

BPA expressly stated that it did not obligate any funds or guarantee a specific volume 

of purchases (findings 13-14). While the BPA may have required OSC to perform 

some staffing services in preparation for issuing orders under the BPA, we hold that 

there is no consideration under the BPA for such work. OSC was solicited to provide 

service costs for staffing the four locations; however, OSC declined to do so in its 

proposal and exchanges prior to execution of the BPA (findings 8-10). Instead, OSC 

consistently indicated that its service costs were incidental to the purchase of products 

which would be sold under orders issued against the BPA and captured within the 

purchase price of the products sold (id.). At the time the BPA was executed, neither 

party intended any compensation for services until such time as an order might be 

issued. Lacking mutuality of consideration, we conclude that the BPA is not a 

contract. Because the BPA is not a contract, it does not serve as a basis for Board 

jurisdiction or afford OSC any remedy.10

IV. OSC cannot prevail under an implied contract theory. 

OSC asserts that an implied contract arose from the BPA whereby OSC would 

perform services to stock and staff the four locations and would be paid “the fair and 

reasonable value” of work performed (compl. at 2). 

A. OSC cannot prevail on its implied-in-fact contract argument.

An implied-in-fact contract is founded upon a meeting of the minds and “is 

inferred, as a fact, from the conduct of the parties showing, in the light of the 

surrounding circumstances, their tacit understanding.” Guardian Safety & Supply LLC 

dba Enviro Safety Products, ASBCA No. 61932, 19-1 BCA ¶ 37,333 at 181,560; 

Kam-Almaz v. United States, 682 F.3d 1364, 1368 (Fed. Cir. 2012) (quoting Hanlin v.

10 As indicated in the Board’s decision on the government’s motion to dismiss, we concluded 

that OSC’s assertion of an implied-in-fact contract was sufficient to establish 

jurisdiction over the dispute. 
11 

United States, 316 F.3d 1325, 1328 (Fed. Cir. 2003)); see also Prudential Ins. Co. of 

Am. v. United States, 801 F.2d 1295, 1297 (Fed. Cir. 1986) (“A contract implied in 

fact is not created or evidenced by explicit agreement of the parties, but is inferred as a 

matter of reason or justice from the acts or conduct of the parties.”). The requirements 

for an implied-in-fact contract with the government “are the same as for an express 

contract; only the nature of the evidence differs.” Hanlin, 316 F.3d at 1328; see also 

Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997). The 

elements of proof to establish a valid contract with the government are: (1) mutuality 

of intent to contract; (2) lack of ambiguity in offer and acceptance; (3) consideration; 

and (4) actual authority on the part of the government representative to bind the 

government in contract. Anderson, 344 F.3d at 1353. OSC bears the burden of 

proving the existence of an implied-in-fact contract. Altanmia Com. Mktg. Co., 

ASBCA No. 55393, 09-1 BCA ¶ 34,095 at 168,584. 

For the same reasons that the BPA is not an express contract, it also is not an 

implied-in-fact contract. The BPA did not obligate government funds (findings 5, 14). 

This demonstrates both a lack of government intent to contract as well as a lack of 

consideration. OSC proposed that it would perform services “for no additional 

charge” stating that service costs were “incidental to the purchasing of the products” 

(finding 10; see also findings 8-9). The repeated and express nature of OSC’s 

communications regarding this element of its price proposal demonstrates OSC’s 

intent to capture its service costs through orders, not the BPA. The meeting of the 

minds as expressed in OSC’s proposal, exchange communications, and the BPA was 

that OSC would be compensated for service costs through product orders, not through 

the BPA. The BPA lacks consideration. 

The compensation now sought by OSC for store labor services arises from how 

OSC bid the BPA, specifically its decision to not separately price service costs. While 

OSC attempts to explain the logic and intent behind its decision to bid the BPA in the 

manner that it did, it has not alleged or demonstrated grounds to recover for a mistake 

in its bid. Rather, OSC made a deliberate business decision to not separately price 

service costs. Further, OSC’s allegations regarding the source selection process for the 

BPA and the exclusion of another offeror are irrelevant and unsupported. OSC has 

presented no evidence to substantiate its assertions. Attorney argument is not 

evidence. Icon Health and Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1043 (Fed. Cir. 

2017); see, e.g., Gemtron Corp. v. Saint-Gobain Corp., 572 F.3d 1371, 1380 (Fed. Cir. 

2009) (“[U]nsworn attorney argument . . . is not evidence and cannot rebut . . . other 

admitted evidence . . . .”). 

We will not disregard the express language of OSC’s proposal or its 

communications regarding its price proposal prior to award of the BPA which clearly 

listed $0.00 for services, stated that the services were incidental to the purchase of 

products and were included “for no additional charge” (findings 8, 10). We find no 
12 

basis for an implied-in-fact contract that would be contrary to the terms of both OSC’s 

proposal and the BPA. OSC has not met its burden to demonstrate an implied-in-fact 

contract. 

B. OSC cannot prevail on a quantum meruit argument. 

A common theme among OSC’s arguments is the unfairness of the 

government’s refusal to pay the claimed service costs which appears to be a quantum 

meruit argument. Recovery in quantum meruit, or quasi-contract, is generally 

considered to involve a contract implied-in-law rather than a contract implied-in-fact. 

R.G.W. Commc’n Inc., ASBCA Nos. 54495, 54557, 05-1 BCA ¶ 32,972 at 163,333; 

Perri v. United States, 340 F.3d 1337, 1343 (Fed. Cir. 2003); see also Trauma Service 

Grp. v. United States, 104 F.3d at 1327 (receipt of services benefiting the government 

does not create an implied-in-fact contract to pay for them but involves a contract 

implied-in-law scenario). Generally, the Board lacks jurisdiction to grant relief arising 

from an implied-in-law contract. R.G.W. Communications Inc., 05-1 BCA ¶ 32,972 

at 163,333; United Pacific Ins. Co., ASBCA No. 53051, 03-2 BCA ¶ 32,267 

at 159,623, aff’d, United Pacific Ins. Co. v. Roche, 380 F.3d 1352 (Fed. Cir. 2004). To 

the extent that OSC seeks equitable relief under an implied-in-law contract or quantum 

meruit theory of recovery, OSC’s claim is denied because the Board lacks jurisdiction 

to grant such relief. 

V. OSC has failed to demonstrate a constructive change. 

OSC argues that government orders for other vendors’ products constituted 

changes for which OSC should be compensated (app. br. at 12). “A constructive 

change occurs where a contractor performs work beyond the contract requirements 

without a formal order, either by an informal order or due to the fault of the 

Government.” Int’l Data Prods. Corps. v. United States, 492 F.3d 1317, 1325 (Fed. 

Cir. 2007) (citing Miller Elevator Co. v. United States, 30 Fed. Cl. 662, 678 (1994)). 

“If a contractor performs work that cannot be characterized as additional work under 

the contract, it does not constitute a change.” South Bay Boiler Repair, Inc., ASBCA 

No. 59281, 17-1 BCA ¶ 36,634 at 178,426 (citing Int’l Data, 492 F.3d at 1325); see 

also Bell/Heery v. United States, 739 F.3d 1324, 1335 (Fed. Cir. 2014) (“To 

demonstrate a constructive change, a plaintiff must show (1) that it performed work 

beyond the contract requirements, and (2) that the additional work was ordered, 

expressly or impliedly, by the government.”). 

To recover based on a “change” theory, a contractor must show that the extra 

work allegedly performed was not “volunteered,” but a result of direction from a 

Government official. See, e.g., Len Co. & Assoc. v. United States, 181 Ct. Cl. 29, 38 

(1967); Inman & Assoc. Inc., ASBCA No. 37869 et al. 91-3 BCA ¶ 24,048 at 120,370. 
13 

Here, OSC’s “change” argument is underdeveloped and unsupported. While 

OSC alleges that it incurred service costs operating the shop stores, there is no 

apparent change or extra work required from OSC. OSC committed to staff the shop 

stores in exchange for service costs earned through the sale of its products. OSC 

offers no evidence, only counsel argument, of any extra work performed. “Attorney 

argument is not evidence.” Icon Health and Fitness, Inc., 849 F.3d at 1043. 

As previously discussed, the BPA did not create a requirements contract 

whereby OSC would be the exclusive provider to the Navy for the MRO products at 

issue (finding 18). Additionally, the solicitation notified OSC that it might be required 

to assist the government in finding sources of supply for items not on OSC’s GSA 

Schedule and that MRO products not “initially identified in the Schedule provided 

may be added at any time based on the requirements of the ordering activity and must 

be added to the GSA Schedule” (findings 2-3). The PWS also indicated that the 

government could submit purchase requests for brand-name or manufacturer-specific 

items and OSC’s proposed substitution of OSC Schedule products may be denied 

(finding 3). Thus, we find that OSC was on notice, before it submitted its proposal, 

that it might be required to add products to its GSA Schedule (findings 2-3). We find 

no evidence of extra work. OSC has failed to demonstrate a constructive change. 

CONCLUSION 

 For the reasons stated herein, the appeal is denied. 

 Dated: July 20, 2023 

LAURA J. ARNETT

Administrative Judge 

Armed Services Board 

of Contract Appeals

I concur

RICHARD SHACKLEFORD

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals

I concur

OWEN C. WILSON

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals
14

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. 63294, Appeal of OSC 

Solutions, Inc., rendered in conformance with the Board’s Charter.

Dated: July 24, 2023

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals