United States Court of Appeals 

for the Federal Circuit ______________________ 

AVUE TECHNOLOGIES CORPORATION,

Appellant

v.

SECRETARY OF HEALTH AND HUMAN 

SERVICES, ADMINISTRATOR OF THE GENERAL 

SERVICES ADMINISTRATION,

Appellees

______________________ 

2022-1784

______________________ 

Appeal from the Civilian Board of Contract Appeals in 

Nos. 6360, 6627, Administrative Judge Kyle E. Chadwick, 

Administrative Judge Kathleen J. O’Rourke, Administrative Judge Patricia J. Sheridan.

______________________ 

Decided: March 6, 2024

______________________ 

MICHAEL BHARGAVA, Nichols Liu LLP, Washington, 

DC, argued for appellant. Also represented by ANDY LIU,

ROBERT NICHOLS, MADISON PLUMMER. 

 DANIEL B. VOLK, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, argued for appellees. Also represented by BRIAN 

M. BOYNTON, PATRICIA M. MCCARTHY, CORINNE ANNE 

NIOSI. 

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2 AVUE TECHNOLOGIES CORPORATION v. HHS

 ______________________ 

Before STOLL, CUNNINGHAM, and STARK, Circuit Judges.

STARK, Circuit Judge. 

Avue Technologies Corporation (“Avue”) appeals a decision by the Civilian Board of Contract Appeals (“Board”), 

which dismissed for lack of jurisdiction Avue’s appeal of a 

claim under the Contract Disputes Act (“CDA”). Avue nonfrivolously alleged that it is party to a procurement contract with the Food and Drug Administration (“FDA”) via

incorporation of Avue’s end-user licensing agreement 

(“EULA”) into an FDA task order, which is governed by a 

Federal Supply Schedule (“FSS”) contract between a thirdparty and the General Services Administration (“GSA”). 

Such an allegation is adequate to establish the Board’s jurisdiction over Avue’s CDA claim. Whether Avue actually 

is a “contractor” for purposes of pressing the CDA claim is 

a matter (among others) on which Avue will have to prevail 

on the merits. We vacate the Board’s dismissal and remand with instructions that the Board provide Avue with 

an opportunity to prove its claim. 

I 

Avue develops software that it sells to private and government entities, allowing them to automate administrative tasks while complying with statutory, regulatory, and 

policy requirements. Avue does not sell licenses to its software directly to federal agencies. Instead, it sells annual 

subscriptions – to what it calls Avue Digital Services 

(“ADS”) – through third party Carahsoft Technology Corporation (“Carahsoft”), an authorized reseller which is itself party to an FSS contract with GSA. Avue attempts to 

govern its relationship with end users of its software via an 

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AVUE TECHNOLOGIES CORPORATION v. HHS 3

EULA, which Avue calls a master subscription agreement 

(“MSA”).1

In 2012, Carahsoft and GSA amended the FSS contract

to which they were both parties to include reference to 

Avue’s ADS. The form effectuating this modification provided, among other things, that the “GSA approved EULA 

rider [is] hereby incorporated into this contract.” 

J.A. 2836. An attachment to the modification form included an unsigned, undated template version of Avue’s 

MSA, containing the words “[CLIENT NAME]” on the title 

page. The attached version of the MSA states, just above 

the empty signature blocks, “in the event this agreement is 

incorporated into a governmental contract award, execution by the parties is not necessary.” J.A. 3001 (capitalization altered). The MSA further states that, “[f]or federal 

government Subscribers, the Subscribed Services are commercial items under [48 C.F.R. §] 2.101 and this standard 

commercial license to the Subscribed Services shall be incorporated into and attached to the applicable contract.” 

J.A. 2993.

In September 2015, the FDA placed a task order under 

the FSS contract for a subscription to Avue’s ADS (“Task 

Order”). The Task Order was for one base year and four 

option years. Sometime in mid-September 2016, Avue

learned through “an anonymous text message” that the 

FDA “did not intend to renew its Avue subscription,” which 

1 The parties use the terms “MSA” and “EULA” interchangeably. See, e.g., Opening Br. at 8 n.1; Oral Arg. 

1:58-2:05, available at https://oralarguments.cafc.uscourts.gov/default.aspx?fl=22-1784_1005202

3.mp3 (Avue counsel stating EULA and MSA are interchangeable terms). We do so here as well. Both terms refer 

to the “GSA approved EULA rider [that was] []incorporated 

into [the amended FSS] contract” in 2012. J.A. 2836.

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4 AVUE TECHNOLOGIES CORPORATION v. HHS

was due to expire on September 29, 2016. J.A. 5789; see 

also J.A. 5288. Avue also “immediately conducted an analysis of the account activity and use of FDA account holders.” Id. On September 18, 2016, Avue accused the FDA 

of taking “acts in violation of Avue’s end user terms and 

conditions, intellectual property rights, and the Trade Secrets Act.” Id. On September 29, 2016, when the FDA 

chose not to exercise its option, the Task Order terminated. 

Over the ensuing months, Avue sent a “Cease and Desist Letter” and a claim letter to the FDA’s contracting officer. J.A. 6040-41 (cease and desist letter); J.A. 6069-86 

(claim letter). Then, in a series of communications back to

Avue in 2017 and 2018, the contracting officer denied 

Avue’s allegations, pointing out that the FDA’s contract 

was with Carahsoft, not Avue. J.A. 6067-68 (FDA’s response to cease and desist letter in October 2017); 

J.A. 6099 (FDA’s response to claim letter in August 2018). 

The contracting officer also noted that “[i]f Avue wishes to 

pursue its ‘claim,’ it can do so by having Carahsoft assert a 

pass-through claim against the FDA on Avue’s behalf.” 

J.A. 6099. 

On January 22, 2019, Avue filed an appeal at the Board 

of the contracting officer’s denial of its claim.2 Carahsoft 

2 The government argues that Avue’s Board appeal 

was untimely under 41 U.S.C. § 7104. Section 7104 requires a party to file an appeal with the Board “within 90 

days from the date of receipt of a contracting officer’s decision under [41 U.S.C. §] 7103.” The government concedes 

it did not raise this issue with the Board. In any event, the 

FDA’s August 17, 2018 letter did not start the clock governing Avue’s appeal since it failed to adequately “inform 

the contractor of the contractor’s rights,” 41 U.S.C. 

§ 7103(e); see also Pathman Constr. Co. v. United States, 

817 F.2d 1573, 1578 (Fed. Cir. 1987), and the letter did not 

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AVUE TECHNOLOGIES CORPORATION v. HHS 5

did not sponsor Avue’s claim. Avue asserted to the Board

that it was appealing from a “deemed denial” of its claim. 

The United States Department of Health and Human Services (HHS), of which the FDA is a part, moved to dismiss 

Avue’s appeal for lack of subject matter jurisdiction, arguing that Avue is not a “contractor” within the meaning of 

the CDA. The Board denied the HHS motion. After Avue 

filed a “protective” claim with GSA, the Board consolidated 

the appeal of the GSA claim with the ongoing appeal of the 

HHS claim. 

Following discovery, the agencies and Avue crossmoved for summary judgment. Before ruling on the parties’ motions, the Board sua sponte ordered supplemental 

briefing addressing whether a software license is a procurement contract subject to the CDA. After receiving the supplemental briefs, the Board dismissed Avue’s appeal for 

lack of jurisdiction. The Board’s opinion stated that it was 

not deciding whether Avue’s “MSA establishes privity of 

contract between Avue and the Government.” J.A. 4-5. Rather, the Board was dismissing because it agreed with the 

government’s view that “even if the Board were to find that 

the . . . MSA establishes an independent contract between 

the Government and Avue as Avue alleges, [the Board] 

lack[ed] jurisdiction to decide the case because the MSA is 

not a procurement contract within the meaning of the 

CDA.” J.A. 4 (internal quotation marks omitted). In the 

Board’s view, “the MSA standing alone lack[ed] core 

indicate that it was the contracting officer’s final decision, 

see J.A. 6099 (contracting officer stating “FDA will continue 

to research the allegations presented in Avue’s ‘claim’”) 

(emphasis added); see also 48 C.F.R. § 33.211 (requiring 

contracting officer’s written decision to include “paragraphs substantially as follows: ‘This is the final decision 

of the Contracting Officer . . . .’”). 

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6 AVUE TECHNOLOGIES CORPORATION v. HHS

aspects of a CDA procurement contract.” J.A. 5. The Board 

did not evaluate whether the FSS contract or the Task Order, which incorporated the MSA, constituted a procurement contract.

Avue timely appealed the Board’s dismissal. We have 

jurisdiction under 28 U.S.C. § 1295(a)(10). We review the 

Board’s decision on questions of law de novo. See 41 U.S.C. 

§ 7107(b). In particular, whether a tribunal “has jurisdiction over a claim presents a question of law we review de 

novo.” Lee’s Ford Dock, Inc. v. Sec’y of the Army, 865 F.3d 

1361, 1369 (Fed. Cir. 2017).

II

The Board’s jurisdiction over an appeal of a CDA claim

is derived from 41 U.S.C. § 7105(e)(1)(B), which confers “jurisdiction to decide any appeal from a decision of a contracting officer . . . relative to a contract made by that agency.” 

Under 41 U.S.C. § 7103(a)(1) & (2), the contracting officer’s 

decision that gives rise to a Board appeal must be with respect to a claim by a “contractor.” The term “contractor” is 

expressly defined in 41 U.S.C. § 7101(7) as “a party to a 

Federal Government contract other than the Federal Government.” Accordingly, “the CDA does not permit appeals 

by anyone who is not a party to a Government contract.” 

Winter v. FloorPro, Inc., 570 F.3d 1367, 1371 (Fed. Cir. 

2009) (internal quotation marks omitted); see also id. at 

1370 (“[T]he provisions of the CDA apply only to ‘contractors,’ i.e., ‘part[ies] to a Government contract other than 

the Government.’”) (quoting 41 U.S.C. § 601(4)). 

In some circumstances, however, we have held that certain third parties that are in privity with the federal government may “become a ‘contractor’ within the meaning of 

the CDA” and, hence, press a claim under the CDA. Lumbermens Mut. Cas. Co. v. United States, 654 F.3d 1305, 

1321 (Fed. Cir. 2011); see also Admiralty Constr. By Nat’l 

Am. Ins. Co. v. Dalton, 156 F.3d 1217, 1222 (Fed. Cir. 1998)

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AVUE TECHNOLOGIES CORPORATION v. HHS 7

(“Because National is neither a contractor nor an entity in 

privity with the Navy, National alone is not eligible to appeal to the Board under the CDA.”); Erickson Air Crane Co. 

of Washington, Inc. v. United States, 731 F.2d 810, 813

(Fed. Circ. 1984) (“The government consents to be sued 

only by those with whom it has privity of contract . . . .”).

“[A] plaintiff 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 CDA ‘relative to’ an express or implied contract with an executive 

agency.” Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 

1353 (Fed. Cir. 2011) (emphasis added). Notwithstanding 

our clear holding in Engage Learning, the government argues that if a “motion denies or controverts the pleader’s 

allegations of jurisdiction . . . , the movant is deemed to be 

challenging the factual basis for the court’s subject matter 

jurisdiction,” and at that point “[a]llegations alone will not 

suffice.” Gov. Br. at 29 (citing Cedars-Sinai Med. Ctr. v. 

Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993)). According 

to the government, then, establishing the Board’s jurisdiction requires that “Avue must convince this [c]ourt that 

there is a genuine issue of material fact for trial as to that 

issue,” i.e., that the record contains sufficient evidence 

from which a reasonable factfinder could find that Avue is 

party to a contract with the federal government. Gov. Br. 

at 31.

The government’s position is contrary to our precedent. 

In Engage Learning, we held that “the determination of 

whether or not a contract in fact exists is not jurisdictional; 

it is a decision on the merits.” 660 F.3d. at 1355 (emphasis 

added). It follows, then, that to establish the Board’s jurisdiction over a CDA claim, a party need only allege, nonfrivolously, that it has a contract (express or implied) with 

Case: 22-1784 Document: 45 Page: 7 Filed: 03/06/2024
8 AVUE TECHNOLOGIES CORPORATION v. HHS

the federal government.3 The obligation to actually prove

the existence of such a contract does not arise until the case 

proceeds to the merits, at which point the claimant can only 

prevail on its claim if it proves (among other things) that it 

has rights under a “procurement contract.”4

None of the cases on which the government relies for 

its contention that a claimant, in order to establish the 

Board’s jurisdiction, must produce sufficient evidence of a 

contract to at least create a genuine dispute of fact, see 

Govt. Br. at 29, actually involves a CDA claim or the Board. 

See McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 

U.S. 178, 189 (1936) (discussing diversity jurisdiction in 

district court); Cedars-Sinai, 11 F.3d at 1583 (applying 

Federal Rule of Civil Procedure 12(b)(1) in district court action); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 

746, 747 (Fed. Cir. 1988) (same). In contrast, Engage 

Learning is directly on point, as it involved a CDA claim 

before the Board – and, again, Engage Learning expressly 

3 That is, the party 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.” Trauma 

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

1997). 

4 The government correctly notes that “the same 

question may resolve both the merits and a jurisdictional 

issue.” Gov. Br. at 30 (citing Brownback v. King, 141 S. Ct. 

740, 749 (2021)). Such potential overlap, however, 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.

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AVUE TECHNOLOGIES CORPORATION v. HHS 9

held that nonfrivolous allegations are adequate to establish jurisdiction and avoid dismissal.

Avue has made the requisite non-frivolous allegations 

to establish the Board’s jurisdiction. Indeed, this was the

conclusion the Board itself reached early in the case when 

it denied the initial motions to dismiss. See J.A. 198 

(Board: “Avue is not pursuing its claim as a subcontractor. 

Avue alleges that it is a contractor. More than this, Avue 

points to a specific writing (the EULA, allegedly ‘incorporated’ in the FSS contract) that it considers a government 

contract.”). At that stage, the Board correctly explained 

that Avue’s “allegations of the existence of a contract suffice to take the claim out of the realm of subcontractor 

claims and into the world of claims within our CDA jurisdiction.” J.A. 198 (citing Engage Learning, 660 F.3d at 

1353 and Gould, Inc. v. United States, 67 F.3d 925, 929 

(Fed. Cir. 1995)). 

After the parties filed their motions for summary judgment and supplemental briefs, however, the Board found it 

lacked jurisdiction, for a new reason. At that point, the 

Board held that the MSA, standing alone, is not a “procurement contract” within the meaning of the CDA. J.A. 4. 

Central to the Board’s rationale was that “the Government

did not acquire anything directly from Avue under a procurement contract with Avue.” J.A. 6.

Whether or not the MSA, all by itself, is a “procurement 

contract” is not a question we need to decide. The pertinent 

question, instead, is whether Carahsoft’s FSS contract 

with GSA or the Task Order placed by the FDA, each of 

which incorporates the MSA, constitutes a “procurement 

contract” giving rise to rights enforceable by Avue. See 

Opening Br. at 28 (“The Board’s fundamental error was to 

improperly disaggregate the Carahsoft Schedule Contract 

from its incorporated parts . . . .”). While Avue, confusingly, urged the Board to treat the MSA as a standalone 

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10 AVUE TECHNOLOGIES CORPORATION v. HHS

contract, see J.A. 170-71 (“MSA [i]s a [f]reestanding [c]ontract [b]etween Avue and FDA.”); see also J.A. 4 (“[E]ven if 

the Board were to find that the . . . MSA establishes an independent contract between the Government and Avue, as 

Avue alleges . . . .”) (emphasis added), Avue also sufficiently, and alternatively, made the more comprehensive 

allegation that its rights arise from the combination of the 

MSA with the FSS contract or with the Task Order, see 

J.A. 737 (“[T]here is no question that the MSA is incorporated by reference into FDA’s FSS order, and so, whether 

or not it is a CDA contract standing alone, CDA jurisdiction 

attaches to a claim based on its breach.”). The government 

agrees that Avue made this broader allegation to the 

Board, see Oral Arg. at 14:44-15:09 (government acknowledging that “[b]oth arguments will probably show up in 

[Avue’s] briefs including from below”) and that “the MSA 

was not a stand-alone contract,” Gov. Br. at 51. 

Importantly, the government further concedes that if, 

as we are requiring on remand, the MSA is to be considered 

part of a larger contract (i.e., in conjunction with the FSS

contract or the Task Order), that larger contract is a procurement contract. See Gov. Br. at 52 (“Unquestionably, 

Carahsoft’s contracts with GSA and the FDA were procurement contracts.”); Oral Arg. at 24:19-34 (government counsel stating “[i]t is not a question of whether there is or isn’t 

a procurement contract. There was. It was with Carahsoft.”). 

Under these circumstances, in which the Board found 

it lacked jurisdiction without considering a basis for jurisdiction that all parties to this appeal agree was fairly presented to the Board, we will not affirm the Board’s 

dismissal of Avue’s claim. Instead, we conclude that Avue’s 

allegation that it is a party to a procurement contract (i.e., 

the FSS contract or the Task Order) with the federal government that incorporates its MSA is nonfrivolous and, 

therefore, sufficient to establish the Board’s jurisdiction

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AVUE TECHNOLOGIES CORPORATION v. HHS 11

under the Engage Learning standard, which we reaffirm is 

applicable here. 

On remand, the Board must proceed to consider the 

merits, treating as a merits issue the matter of whether 

Avue is a party to – or otherwise has enforceable rights 

pursuant to, for example by being in privity with Carahsoft 

– the conceded procurement contract (i.e., the MSA plus 

the FSS or the Task Order). We decline the parties’ invitation, see e.g., Opening Br. at 50; Oral Arg. at 17:53-18:32, 

to resolve merits issues (including privity) ourselves in the 

first instance. Instead, we will benefit from the Board’s 

considerable “expertise on questions of government contracts” and its considered views on these issues. R.B. 

Wright Constr. Co. Through Rembrant v. United States, 

919 F.2d 1569, 1571 (Fed. Cir. 1990). 

III

We have considered the government’s remaining arguments and find they are unpersuasive and do not warrant 

further discussion. Thus, for the reasons stated above, we 

vacate the Board’s dismissal for lack of jurisdiction and remand for further proceedings on the merits consistent with 

this opinion.

VACATED AND REMANDED

COSTS

No costs

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