ARMED SERVICES BOARD OF CONTRACT APPEALS

OPINION BY ADMINISTRATIVE JUDGE MELNICK PARTIALLY GRANTING 

AND PARTIALLY DENYING THE GOVERNMENT’S MOTION TO DISMISS 

FOR LACK OF JURISDICTION 

Erik Robinson d/b/a The Artwork Factory (TAF), has filed these appeals pro se, 

alleging that TAF was party to an implied-in-fact contract with the Army and Air Force 

Exchange Service (government or exchange) entitling TAF to certain concessions from 

the exchange, with the potential for wider distribution in the exchange’s stores and mall 

storefronts. TAF alleges the government breached the contract. It seeks damages and 

specific performance. The government moves to dismiss the appeals for lack of 

jurisdiction on the ground that the record does not support the allegations of an 

implied-in-fact contract and the Board lacks jurisdiction to grant specific performance. 

For the reasons stated below, we grant the government’s request to dismiss the specific 

performance claims and deny its request to dismiss the breach claim. 

 STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

1. TAF’s pro se complaint is voluminous and difficult to follow, but we discern the 

following from it. According to TAF, it contacted the exchange to be listed as a supplier 

(compl. ¶ 1). It provided product samples to the government that were initially well 

received, but less so after it disclosed the racial make-up of the company (compl. ¶ 2). 

TAF was then contacted by an unknown government vendor claiming to have received 

TAF’s confidential product information from the government (compl. ¶ 4). TAF alleges 

that the vendor said it had been tasked by the government to assist TAF with navigating 

the vendor approval process (compl. ¶ 5). Later, the government confirmed with TAF that 

it had spoken to the vendor, stating it would be in the mutual interest of both the 

government and TAF for it to work with the vendor, which was the only way TAF could 

Appeals of - )

)

Erik Robinson d/b/a The Artwork Factory ) ASBCA Nos. 63727, 63809

)

Under Contract No. 7235-0005-23 et al. )

APPEARANCE FOR THE APPELLANT: Mr. Erik D. Robinson

 Managing Director

APPEARANCES FOR THE GOVERNMENT: Dana J. Chase, Esq.

 Army Chief Trial Attorney

MAJ Chris Walton

 Trial Attorney
2 

proceed (compl. ¶¶ 6-8). TAF says this communication tricked it into providing more 

sensitive trade information, business secrets, pricing information, manufacturing insights, 

and additional samples to the government (compl. ¶ 8). 

2. After supplying the information, TAF says the exchange officially selected 

its products for listing and sale at a facility in Dallas, Texas. However, the 

government ultimately refused to send TAF purchase orders. (Compl. ¶ 9) In 2016, 

TAF discovered that the government had listed its products for purchase from the 

third-party vendor it had dealt with. TAF informed the government that it would hold 

the government liable for violating a non-compete/non-disclosure agreement. 

Nevertheless, the government awarded the third-party vendor with contracts to supply 

29 locations with the products TAF developed. (Compl. ¶ 10) Faced with potential 

litigation, in 2017, the government proposed an alternative scheme where it would 

grant TAF concessions in five locations in Germany that would set the stage for wider 

distribution in the exchange’s main stores and mall storefronts, through an implied-infact agreement (compl. ¶ 12). However, a condition of the agreement was that TAF 

suspend seeking damages for unfair trade practices (compl. ¶ 13). 

3. After the parties established their agreement, the government allowed TAF to 

hold concession events in Germany, which achieved high sales. However, the 

government did not permit the wider distribution allegedly contemplated. (Compl. 

¶¶ 13-16) It did provide TAF with a vacant shop at the Ramstein, Germany exchange. 

But after only four months, and despite “unmatched sales,” TAF was forced to vacate 

that space for another. (Compl. ¶ 17) Later, the government required TAF to leave that 

space as well without providing a justification (compl. ¶¶ 17-18). In 2023, TAF 

resumed its efforts to pursue its prior unfair trade practices complaint (compl. ¶ 19). 

Although there is much additional discussion in TAF’s complaint, it essentially alleges 

that the government’s treatment of it breached the implied-in-fact contract. TAF seeks 

$17.9 million in damages (compl. at 31). It also seeks the Board to order various 

remedial performance from the government (compl. at 31-32). 

DECISION 

The government requests dismissal of the appeals for lack of jurisdiction. It 

claims the record does not support an implied-in-fact contract. Also, it contends we do 

not possess jurisdiction to order the remedial actions sought by TAF. We can quickly 

address and express our agreement with the government about the peripheral remedial 

orders sought by TAF. Those requests seek specific performance that we indisputably 

lack jurisdiction to entertain. E.g., SBA Contracting, LLC, ASBCA No. 63320, 23-1 

BCA ¶ 38,443 at 186,849. 

We reject the government’s contention that we lack jurisdiction over TAF’s 

core claim for breach of an implied-in-fact contract. It is solidly established that a 
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party “‘need only allege’—that is, it need not prove—‘the existence of a contract’ to 

which it is a party ‘to establish the Board’s jurisdiction under the [Contract Disputes 

Act (CDA)] ‘relative to’ an . . . implied contract with an executive agency.’” Avue 

Techs. Corp. v. Sec’y of Health and Human Servs., 96 F.4th 1340, 1344 (Fed. Cir. 

2024) (quoting Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1353 (Fed. Cir, 

2011) (emphasis added in cited authority’s quotation)). The court of appeals has 

unambiguously instructed that “‘the determination of whether or not a contract in fact 

exists is not jurisdictional; it is a decision on the merits.’” Id. (quoting Engage at 1355 

(emphasis added in cited authority’s quotation)). A party “need only allege, 

non-frivolously, that it has a contract (express or implied) with the federal 

government.” Id. at 1345 (emphasis in original). Indeed, “[t]he obligation to actually 

prove the existence of such a contract does not arise until the case proceeds to the 

merits.” Id. (emphasis in original). Though “the same question may resolve both the 

merits and a jurisdictional issue,” that “overlap . . . does not make it any less important 

to distinguish between jurisdiction, which need only be alleged (to survive a motion to 

dismiss), and the merits, which must be proven.” Id. n.4. The court of appeals has 

added that the party only “must allege, in substance, that there was a ‘mutual intent to 

contract including an offer, an acceptance, and consideration’ and that ‘the

Government representative who entered or ratified the agreement had actual authority 

to bind the United States.’” Id. n.3 (quoting Trauma Serv. Grp. v. United States, 

104 F.3d 1321, 1325 (Fed. Cir. 1997)). These are also the requirements for an 

implied-in-fact contract. Lewis v. United States, 70 F.3d 597, 600 (Fed. Cir. 1995)

(quoting City of El Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990)). 

TAF has alleged all the necessary elements of an implied-in-fact contract. It 

contends that the government offered to grant it concessions in five locations in 

Germany, with the potential for wider distribution in the exchange’s main stores and 

mall storefronts, in return for which TAF would suspend seeking damages for unfair 

trade practices, which TAF indicates it adopted (SOF ¶¶ 2-3). TAF alleges the parties 

proceeded performing, with the government initially providing concession 

opportunities and TAF foregoing its unfair trade practices complaint (SOF ¶ 3). These 

allegations facially reflect a mutual intent to contract. Although we have not 

specifically identified in the complaint a suggestion that the government representative 

was authorized to contract with TAF, TAF includes that allegation in its opposition to 

the government’s motion to dismiss (app. opp’n at 9). TAF’s assertion of that fact in 

its brief is sufficient given the leeway administratively afforded to pro se litigants. See 

GLJ, Inc., ASBCA No. 62964, 22-1 BCA ¶ 38,121 at 185,184. 

Undaunted by the well-established legal principles excluding a contract’s 

validity from our jurisdictional inquiry into TAF’s breach of contract action, the 

government plows forward, insisting that we consider evidence allegedly indicating 

the implied-in-fact contract was not formed. It seeks us to weigh evidence beyond the 

pleadings that supposedly demonstrates there was no offer by an authorized 
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government representative, mutuality of intent, or meeting of the minds. It also 

contends that other express agreements between TAF and the government preclude the 

existence of an implied-in-fact contract purportedly regarding the same subject 

matter.1

 The government’s hook for advancing these merits-based contentions is the 

court of appeals’ jurisdictional condition that the complaint’s allegation must be 

“non-frivolously” expressed. Avue, 96 F.4th at 1344-45. The government suggests 

that if it presents evidence that defeats the validity of the allegations then they are 

frivolous. 

The government’s argument would devour the principle that “whether or not a 

contract in fact exists is not jurisdictional” and “[t]he obligation to actually prove the 

existence of . . . a contract does not arise until the case proceeds to the merits.” Id. 

at 1344-45. Under the government’s formulation, it can evade the contours of our 

simple allegation-based test for determining jurisdiction over a contract claim by 

demanding that we dive into a review of the pertinent evidence related to the 

allegations. If we find the evidence inadequate to support the allegations, we must 

then find them frivolous and dismiss for lack of jurisdiction. The law suggests the 

contrary. See Lewis, 70 F.3d at 603 (quoting Hart v. B.F. Keith Vaudeville Exch., 262 

1 The government’s reply brief cites Trinity Source Logistics LLC, ASBCA No. 62435, 

22-1 BCA ¶ 38,185 at 185,450-52, as support for its contention that the existence of an 

express contract on the same subject matter is a jurisdictional bar to our entertaining 

the implied-in-fact contract claim (gov’t resp. at 7). The initial issue in that appeal 

was whether the appellant was in privity of contract with the government respecting an 

existing express contract. Id. at 185,448-50. That is clearly a jurisdictional question. 

See Park Props. Assocs., L.P. v. United States, 916 F.3d 998, 1002 (Fed. Cir. 2019). 

In response to the government’s motion to dismiss, the appellant secondarily suggested 

it had a separate, implied-in-fact contract with the government. As a matter of law, 

“an implied-in-fact contract cannot exist if an express contract already covers the same 

subject matter.” Trauma Serv. Grp., 104 F.3d at 1326. In Trinity, the Board declined 

to exercise jurisdiction over the implied-in-fact contract claim after comparing it to the 

terms of the express contract. 22-1 BCA ¶ 38,185 at 185,450-51. That result is 

appropriate given that there is no indication that the appellant’s complaint contained 

the required allegations of an implied-in-fact contract to find jurisdiction. However, 

contrary to the government’s suggestion here, the court of appeals has analyzed 

whether an alleged implied contract is unrelated to an express contract as a merits 

question, not as a component of jurisdiction. See Bank of Guam v. United States, 578 

F.3d 1318, 1325-29 (Fed. Cir. 2009) (addressing whether the alleged implied-in-fact 

contract is unrelated to an express one in the context of a motion to dismiss for failure 

to state a claim); Trauma Serv. Grp., 104 F.3d at 132-27 (same); see also Schism v. 

United States, 316 F.3d 1259, 1278 (Fed. Cir. 2002) (en banc) (reviewing summary 

judgment on the merits). 
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U.S. 271, 273 (1923) (observing that “if the bill or declaration makes a claim that if 

well founded is within the jurisdiction of the Court it is within that jurisdiction whether 

well founded or not”). The court of appeals has also approvingly cited the Court of 

Claims’ holding that “claims of. . . an implied-in-fact contract are within the court’s 

jurisdiction, even if the claims are nonmeritorious”). Id. (citing Ralston Steel Corp. v. 

United States, 340 F.2d 663, 666-69 (Ct. Cl. 1965)). While recognizing that frivolous 

claims are subject to dismissal for lack of jurisdiction, the court of appeals has also 

noted that the Supreme Court’s references to that doctrine have been unenthusiastic. 

Id. Having so observed, the court of appeals has declared that the Supreme Court’s 

rule is that “jurisdictional dismissals for frivolousness must be ‘confine[ed]’ to cases 

‘that are very plain.’” Id. at 603-04 (quoting Hart, 262 U.S. at 274). Accordingly, 

“[a] well-pleaded allegation in the complaint is sufficient to overcome challenges to 

jurisdiction.” Trauma Serv. Grp., 104 F.3d at 1325 (citing Spruill v. Merit Sys. Prot. 

Bd., 978 F.2d 679, 686 (Fed. Cir. 1992)). An allegation that an implied-in-fact 

contract underlies the claim suffices to confer subject matter jurisdiction. Id. 

TAF’s allegations facially describe an implied-in-fact contract with the 

government. They are not plainly frivolous. Accordingly, its “allegations of the 

existence of a contract suffice to take the claim . . . into the world of claims within our 

CDA jurisdiction.” Avue, 96 F.4th at 1345. Whether a review of the evidence 

ultimately reveals them to be unfounded on the merits is irrelevant to that 

determination. 

CONCLUSION 

The government’s motion that we dismiss for lack of jurisdiction TAF’s request 

for remedial orders in the nature of specific performance is granted. The government’s 

motion to dismiss TAF’s breach of contract claim for lack of jurisdiction is denied. 

 Dated: July 15, 2024 

(Signatures continued) 

MARK A. MELNICK

Administrative Judge 

Armed Services Board 

of Contract Appeals
6 

I concur

OWEN C. WILSON

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals

I concur

MICHAEL N. O’CONNELL

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 Nos. 63727, 63809, Appeals of 

Erik Robinson d/b/a The Artwork Factory, rendered in conformance with the Board’s 

Charter. 

 Dated: July 16, 2024 

PAULLA K. GATES-LEWIS

Recorder, Armed Services 

Board of Contract Appeals