ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of --

Excel Link Construction Company 

Under Contract No. 000000-00-0-0000 

APPEARANCE FOR THE APPELLANT: 

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APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 60419 

Mr. Jaweed Jan 

Chairman 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

CPT Harry M. Parent III, JA 

Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE WOODROW 

ON THE GOVERNMENT'S MOTION TO DISMISS 

Excel Link Construction Company (appellant) filed a notice of appeal on 15 January 

2016, appealing its designation as "Not Eligible for installation Access" in the Joint 

Contingency Contracting System (JCCS). The JCCS is an internet-based application used by 

Expeditionary Contracting Command - Afghanistan for posting solicitations and proposals. 

The JCCS is part of a vendor vetting program for contractors seeking to do business with the 

U.S. Government in Afghanistan. The purpose of the vetting program is to "help identify and 

prevent insurgents, terrorists, militias, foreign intelligence and security services (FISS) and 

criminals from gaining access to U.S. and Coalition equipment, facilities, and personnel and 

using contracting proceeds to fund their operations." Afghan Premier Logistics, B-409971, 

2014 CPD iJ 293 (Comp. Gen. Sept. 26, 2014). 

Mr. Jaweed Jan, appellant's chairman, seeks to have appellant registered in the 

JCCS in order to access installations in Afghanistan administered by U.S. Forces in 

Afghanistan. Appellant's notice of appeal provides no reference to either a solicitation or 

contract between appellant and the government. 

On 5 February 2016, the government filed a motion to dismiss for lack of 

jurisdiction and stay of proceedings. Appellant responded by email on 17 April 2016 and 

the government elected to not file a reply brief. The government seeks dismissal on the 

grounds that the appeal does not involve a procurement contract subject to the Contract 

Disputes Act (CDA) and because appellant failed to submit a claim to the contracting 

officer. We hold that the Board lacks jurisdiction to entertain appellant's appeal of its 
denial of installation access on the grounds that appellant has failed demonstrate the 

existence of a contract within the Board's jurisdiction. 

DISCUSSION 

The fundamental basis for the Board's jurisdiction under the CDA is the 

contractor's submission of a proper claim to the contracting officer for a final decision. 

41 U.S.C. § 7103(a); CCIE & Co., ASBCA Nos. 58355, 59008, 14-1BCAii35,700 at 

174,816. Because the CDA does not define the term "claim," we look to the definition in 

the FAR. See, e.g., Taj Al Safa Co., ASBCA No. 58349, 13 BCA ii 35,278 at 173,156. 

The FAR defines a "Claim," in relevant part, as follows: 

Claim means a written demand or written assertion by 

one of the contracting parties seeking, as a matter of right, the 

payment of money in a sum certain, the adjustment or 

interpretation of contract terms, or other relief arising under 

or relating to the contract. 

FAR 2.101. We determine whether a contractor's communication is a CDA claim on a 

case-by-case basis and apply a common sense analysis. Todd Pac. Shipyards Corp., 

ASBCA No. 55126, 06-2 BCA ii 33,421at165,687. In determining whether a claim has 

been submitted, we may examine the totality of the correspondence between the parties. 

Vibration and Sound Solutions Ltd., ASBCA No. 56240, 09-2 BCA ii 34,257 at 169,270. 

In this appeal, appellant does not allege that it has submitted a claim to the 

contracting officer prior to filing this appeal. Although appellant repeatedly 

communicated with personnel within the Joint Expeditionary Contracting 

Command-Afghanistan regarding appellant's registration with the JCCS, these 

communications fall well short of being a claim. In particular, none of appellant's email 

communications with government personnel seek the payment of money, nor do they 

request any relief "arising under or relating to [a] contract" (notice of appeal at 2-3). 

Indeed, appellant does not allege that there was an express contract, either oral or written, 

between it and the government. Appellant admits that it is a new company and that it 

does not yet have any projects (notice of appeal at 1 ). Although appellant's email 

correspondence with the government indicates that it sought to have the company 

registered with the JCCS, and that the government responded with a request for 

additional information from the company, there is no mention of any agreement, contract, 

solicitation, or proposal. Therefore, the Board lacks jurisdiction to entertain the appeal. 

The Board also lacks jurisdiction to entertain the appeal because our jurisdiction is 

limited to disputes under contracts. See 41 U.S.C. § 7105(e)(l)(A). We can provide relief 

to appellants only in appeals in which the government has an express or implied contract 

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between the government and the appellant. See S. Harman & Associates, Inc., ASBCA 

No. 60214, 16-1 BCA ii 36,225 at 176,878. In this appeal, appellant admits that it has no 

projects with the government and does not allege that there was an express contract, either 

oral or written, between it and the government (notice of appeal at 1 ). Nor does appellant 

present any evidence of an implied-in-fact contract. An implied-in-fact contract has all of 

the same requirements as an express contract except that its terms are proved by the 

parties' behavior, rather than by an explicit agreement. See City of El Centro v. United 

States, 922 F .2d 816, 820 (Fed. Cir. 1990). These requirements include "lack of 

ambiguity in offer and acceptance" and that the government representative whose conduct 

is relied upon has "actual authority to bind the government." E.g., City of El Centro, 922 

F.2d at 820. Appellant's email correspondence with the government makes no mention of 

any oral agreement, contract, solicitation, or proposal. 

Moreover, there can be no contract based on an implied agreement to provide base 

access to appellant or security clearances for appellant's personnel. The few cases we 

have found that address a contractor's eligibility under the JCCS are bid protests, which 

are not within the Board's jurisdiction. See, e.g., Sohail Global Group, B-413132, 2016 

CPD ii 215 (Comp. Gen. Aug. 9, 2016) (rejecting proposal due to denfal of installation 

access in the JCCS); Afghan Premier Logistics, 2014 CPD ii 293 (rejecting proposal due 

to contractor's JCCS rating). The Board does not possess jurisdiction to entertain bid 

protests, which involve the alleged violation of a procurement law or regulation in 

connection with a solicitation for goods or services or the award of a contract. 1 Statistica, 

Inc., ASBCA No. 44116, 92-3 BCA ii 25,095 at 125,126-27 (citing Coastal Corp. v. 

United States, 713 F.2d 728 (Fed. Cir. 1983)). In any event, these circumstances are not 

present here, because appellant does not identify a particular solicitation, procurement, or 

contract, nor does the appellant allege a violation of a procurement law or regulation. 

Finally, installation access decisions are military command decisions. It is well 

established that the commanding officer of a military base has wide discretion as to 

whom he or she can exclude from the base. Cafeteria & Restaurant Workers Union, 

Local 473 v. McElroy, 367 U.S. 886, 893 (1961); see also Connor Bros. Constr. Co., 

ASBCA No. 54109, 07-2 BCA ii 33,703, aff'd, 550 F.3d 1368 (Fed. Cir. 2008) (holding 

that denial of installation access to contractor was a sovereign act); Nero and Associates, 

Inc., ASBCA No. 30369, 86-1BCAii18,579 at 93,296 (recognizing that installation 

access orders are sovereign acts). Therefore, even if we possessed jurisdiction to 

entertain appellant's challenge to the government's decision, the government likely 

1 Generally speaking, if a party interested in a government contract believes that an 

agency has violated procurement law or regulation in a solicitation for goods or 

services, or in the award of a contract, it may file a bid protest with the 

Government Accountability Office pursuant to 31 U.S.C. §§ 3551-3556, or in the 

United States Court of Federal Claims, pursuant to 28 U.S.C. § 1491(b)(l) (2006). 

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would contend that the denial of installation access was a sovereign act and that the 

government cannot be held liable for any damages sustained by the appellant. 2 

For these reasons, we hold that the Board lacks jurisdiction to entertain the appeal. 

Dated: 7 November 2016 

I concur 

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/MARK N. STE LER I 7 t 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

- " 

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. 60419, Appeal of Excel Link 

Construction Company, rendered in conformance with the Board's Charter. 

Dated: 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals 

2 Under the sovereign acts doctrine, the United States, when sued as contractor, cannot 

be held liable for obstruction to performance of a particular contract resulting from 

its public and general acts as sovereign. Zafer Taahhut Insaat ve Ticaret A.S. v. 

United States, 833 F.3d 1356 (Fed. Cir. 2016). 

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