ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of --

B3 Solutions LLC 

Under Contract No. SP4701-14-C-0046 

APPEARANCE FOR THE APPELLANT: 

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APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 60654 

Ms. Sharon Y. Thorpe 

Contracts Vice President 

Daniel K. Poling, Esq. 

DLA Chief Trial Attorney 

John F. Basiak, Jr., Esq. 

Theodore E. Lorenz, Esq. 

Trial Attorneys 

DLA Troop Support 

Philadelphia, PA 

OPINION BY ADMINISTRATIVE JUDGE PEACOCK 

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

The Defense Logistics Agency (DLA) moves to dismiss this appeal for lack of 

jurisdiction on the basis that B3 Solutions LLC (B3 Solutions) is a second-tier 

subcontractor with whom the government has no privity of contract. We grant DLA's 

motion and dismiss the appeal for lack of jurisdiction. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

1. DLA and Resource Metrix entered into Contract No. SP4701-14-C-0046 

(contract) on 31 July 2014 for program management and technical support services for 

the Wide Area Work Flow (WA WF) program management office (R4, tab 1 ). The 

contract contains DFARS 252.219-7009, SECTION 8(A) DIRECT AWARD (SEP 2007), 

which states, in relevant part: 

a) This contract is issued as a direct award between 

the contracting office and the 8(a) Contractor pursuant to 

the Partnership Agreement between the Small Business 

Administration (SBA) and the Department of Defense. 

Accordingly, the SBA, even if not identified in Section A 

of this contract, is the prime contractor and retains 

responsibility for 8(a) certification, for 8(a) eligibility 
determinations and related issues, and for providing 

counseling and assistance to the 8(a) Contractor under the 

8(a) Program. 

(R4, tab 1 at 21) 

2. By document signed 1August2014, Resource Metrix entered into an 

agreement with Supreme Solutions for work on the contract (notice of appeal (NOA), 

attach. 1 *). 

3. By document signed 20 October 2014, Supreme Solutions, Inc., entered 

into an agreement with B3 Solutions to provide WA WF operations support (NOA, 

attach. 2). 

4. DLA noted performance deficiencies on Resource Metrix's part and reduced 

Resource Metrix's April, May, and June invoices in 2015 by 20%. Resource Metrix 

subsequently reduced payment to its subcontractors. (NOA at 2) 

5. B3 Solutions submitted, in its own name, a claim, dated 2 June 2016, to a 

DLA contracting officer seeking to recover $56,064.25 from DLA for unpaid services 

(R4, tab 2). 

6. DLA denied B3 Solutions' claim by a contracting officer's final decision, 

dated 14 June 2016 (R4, tab 3). B3 Solutions appealed to this Board on 28 June 2016. 

B3 Solutions' notice of appeal did not include documentation showing it was 

submitted with the consent and cooperation, or sponsorship of Resource Metrix or 

Supreme Solutions. 

DECISION 

DLA moves to dismiss this appeal for lack of jurisdiction, asserting that B3 

Solutions lacks contractual privity with the government. B3 Solutions argues that it 

does have contractual privity since the contract was a directed 8(a) award from the 

SBA and the SBA in tum subcontracted the work out. Therefore, B3 Solutions argues, 

it has contractual privity with the government through SBA. 

B3 Solutions bears the burden of establishing the Board's jurisdiction by a 

preponderance of the evidence. Reynolds v. Army & Air Force Exchange Service, 

* In its notice of appeal, B3 Solutions states that the document at attachment 1 is the 

"Prime Contract Number SP4701-l 4-C-0034 Terminated for Convenience" 

(NOA at 1 ). However, the document at attachment 1 is the agreement between 

Resource Metrix and Supreme Solutions. 

2 
846 F.2d 746, 748 (Fed. Cir. 1988); Total Procurement Service, Inc., ASBCA 

No. 53258, 01-2 BCA ~ 31,436 at 155,237. 

Under the Contracts Dispute Act (CDA), only a contractor may appeal to the 

Board from a contracting officer's final decision. Rahil Exports, ASBCA No. 56832, 

10-1BCA~34,355 at 169,646; 41 U.S.C. § 7104(a). The CDA defines "contractor" as 

"a party to a Federal Government contract other than the Federal Government." 

41 U .S.C. § 7101 (7). Parties that are not in privity of contract with the government 

normally may not avail themselves of the CDA's appeal provisions. Binghamton 

Simulator Company, ASBCA No. 59117, 14-1BCA~35,715 at 174,871. The CDA is 

a waiver of sovereign immunity, and as such it must be strictly construed. Winter v. 

FloorPro, Inc., 570 F.3d 1367, 1370 (Fed. Cir. 2009). 

"Aggrieved subcontractors have the option of enforcing their subcontract rights 

against the prime contractor in appropriate proceedings, or of prosecuting a claim 

against the government through and in right of the prime contractor's contract, and 

with the prime contractor's consent and cooperation." Erickson Air Crane Co. of 

Washington, Inc. v. United States, 731 F.2d 810, 813 (Fed. Cir. 1984). Only in very 

limited and rare circumstances can a subcontractor bring a direct claim against the 

government, such as when the prime contractor acts as a government agent or when 

the contract documents indicate that the government intended to allow direct 

subcontractor appeals. United States v. Johnson Controls, Inc., 713 F .2d 1541, 

1551-56 (Fed. Cir. 1983). 

Here, B3 Solutions argues that it has contractual privity with the government 

because the contract was a direct 8(a) award from th.e SBA and the SBA in tum 

subcontracted the work out. We need not address SBA' s role in this contract because, 

even if B3 Solutions' assertion is correct, it still would not have contractual privity 

with the government since it is a second-tier subcontractor that contracted with 

Supreme Solutions, and not DLA or the SBA (SOF ~~ 1-3). B3 Solutions also fails to 

show that any of the limited or rare circumstances which would allow it to bring a 

direct claim against the government apply here. 

B3 Solutions argues that FloorPro, Inc., ASBCA No. 54143, 04-1 BCA 

~ 32,571, vacated, Winter, 570 F.3d at 1371-73; andD&H Distributing Co. v. United 

States, 102 F.3d 542 (Fed. Cir. 1996) provide a basis for jurisdiction. Neither case 

allows B3 Solutions to bring a direct claim against the government. In D&H, the court 

held that although the subcontractor "was not a party to the contract," it "enjoys the 

status of a third party beneficiary with respect to the payment clause of the modified 

contract and is therefore entitled to enforce that clause against the government." 

D&H, 102 F.3d at 546. D&H invoked the Court of Federal Claims' jurisdiction under 

the Tucker Act, not the CDA. Winter, 570 F.3d at 1372. In FloorPro, the Board 

concluded based on D&H, that there was an exception to the CDA's privity 

requirement for subcontractors qualifying as third-party beneficiaries of contracts 

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between the government and the prime contractor. FloorPro, 04-1 BCA ii 32,571 at 

161,183-84. However, the court in Winter vacated the Board's decision and held that 

the Board's ruling in FloorPro was erroneous and that no such exception to the CDA's 

privity requirement exists for third-party beneficiaries. Winter, 570 F.3d at 1371-73. 

Thus, we need not address whether B3 Solutions is a third-party beneficiary of the 

contract because, even if B3 Solutions' assertion is correct, it would not be allowed to 

bring a direct claim against the government. 

CONCLUSION 

Because B3 Solutions fails to establish a basis allowing it to appeal directly to 

the Board, the Board lacks jurisdiction and the appeal is dismissed. 

Dated: 1 December 2016 

I concur 

~~$ RK N. STEMPLER~ 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

ROBERT T. PEACOCK 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

A 

I concur t\

1 

________ _ 

---~Ji=\/ 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. 60654, Appeal of B3 

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

Dated: 

4 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals