ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- Excel Link Construction Company Under ContractNo. 000000-00-0-0000 APPEARANCE FOR THE APPELLANT: ) ) ) ) )

APPEARANCES FORTHE GOVERNMENT: ASBCANo. 60419

Mr. Jaweed Jan

Chairman Raymond M. Saunders, Esq.

Army ChiefTrial Attorney CPT Harry M. Parent III, JA

Trial Attorney OPINION BYADMINISTRATIVE JUDGE WOODROW ON THE GOVERNMENT'S MOTION TO DISMISS Excel Link Construction Company (appellant) filed a notice ofappeal on 15 January 2016, appealing its designation as "NotEligible 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 ofa vendor vetting program for contractors seeking to do business with the U.S. Government in Afghanistan. The purpose ofthe 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 PremierLogistics, 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 orderto access installations in Afghanistan administered by U.S. Forces in Afghanistan. Appellant's notice ofappeal 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 ofproceedings. 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 lacksjurisdiction to entertain appellant's appeal ofits 

# I Idenial ofinstallation access on the grounds that appellant has failed demonstrate the existence ofa contract within the Board'sjurisdiction. DISCUSSION The fundamental basis for the Board'sjurisdictionunderthe CDA is the contractor's submission ofa 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 lookto the definition in the FAR. See, e.g., TajAlSafa Co., ASBCA No. 58349, 13 BCAii 35,278 at 173,156. The FAR defines a "Claim," in relevant part, as follows: Claim means a written demand orwritten assertion by one ofthe contracting parties seeking, as a matter ofright, the payment ofmoney in a sum certain, the adjustment or interpretation ofcontract terms, or otherreliefarising under orrelating to the contract. FAR2.101. We determine whether a contractor's communication is a CDA claim on a case-by-case basis and apply a common sense analysis. ToddPac. Shipyards Corp., ASBCA No. 55126, 06-2 BCAii 33,421at165,687. In determining whether a claim has been submitted, we may examine the totality ofthe correspondence between the parties. Vibration andSoundSolutions Ltd., ASBCA No. 56240, 09-2 BCAii 34,257 at 169,270. In this appeal, appellant does not allege that it has submitted a claim to the contracting officerpriorto filing this appeal. Although appellant repeatedly communicatedwith personnel within the Joint Expeditionary Contracting Command-Afghanistan regarding appellant's registration with the JCCS, these communications fall well short ofbeing a claim. In particular, none ofappellant's email communications with government personnel seek the payment ofmoney, nor do they request any relief"arisingunder or relating to [a] contract" (notice ofappeal 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 ofappeal at 1 ). Although appellant's email correspondence with the government indicates that it soughtto have the company registered with the JCCS, andthat the governmentresponded with a request for additional information from the company, there is no mention ofany agreement, contract, solicitation, orproposal. Therefore, the Board lacksjurisdictionto entertain the appeal. The Board also lacksjurisdictionto entertain the appeal because ourjurisdiction 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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# Ibetween the government and the appellant. See 

### S. Harman &Associates, Inc., ASBCA No. 60214, 16-1 BCAii 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 ofappeal at 1 ). Nor does appellant present any evidence ofan 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, orproposal. 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 underthe JCCS are bid protests, which are not within the Board'sjurisdiction. See, e.g., Sohail Global Group, B-413132, 2016 CPDii 215 (Comp. Gen. Aug. 9, 2016) (rejecting proposal due to denfal ofinstallation access in the JCCS);AfghanPremierLogistics, 2014 CPD ii 293 (rejecting proposal due to contractor's JCCS rating). The Board does not possessjurisdiction to entertain bid protests, which involve the alleged violation ofa procurement law orregulation in connection with a solicitation for goods or services orthe award ofa contract. 1 Statistica, Inc., ASBCANo. 44116, 92-3 BCAii 25,095 at 125,126-27 (citing Coastal Corp. v. UnitedStates, 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 ofa procurement law orregulation. Finally, installation access decisions are military command decisions. Itis well established that the commanding officer ofa military base has wide discretion as to whom he or she can exclude from the base. Cafeteria & Restaurant Workers Union, Local473 v. McElroy, 367 U.S. 886, 893 (1961); see also ConnorBros. Constr. Co., ASBCA No. 54109, 07-2 BCAii 33,703, aff'd, 550 F.3d 1368 (Fed. Cir. 2008) (holding that denial ofinstallation access to contractor was a sovereign act); Nero andAssociates, Inc., ASBCA No. 30369, 86-1BCAii18,579 at 93,296 (recognizing that installation access orders are sovereign acts). Therefore, even ifwe possessedjurisdictionto entertain appellant's challenge to the government's decision, the government likely

1 Generally speaking, ifa party interested in a government contract believes that an agency has violated procurement law orregulation in a solicitation for goods or services, or in the award ofa contract, it may file a bid protestwith the Government Accountability Office pursuantto 31 U.S.C. §§ 3551-3556, or in the United States Court ofFederal Claims, pursuant to 28 U.S.C. § 1491(b)(l) (2006).

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# Iwould contend that the denial ofinstallation access was a sovereign act and that the government cannot be held liable for any damages sustained by the appellant.2 Forthese reasons, we hold that the Board lacksjurisdictionto entertain the appeal. Dated: 7 November 2016

I concur

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Administrative Judge Acting Chairman Armed Services Board ofContractAppeals Administrative Judge Armed Services Board ofContractAppeals I concur

- " RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContractAppeals I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCANo. 60419, Appeal ofExcel Link Construction Company, rendered in conformance with the Board's Charter. Dated:

JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals

2 Under the sovereign acts doctrine, the United States, when sued as contractor, cannot be held liable for obstruction to performance ofa particular contract resulting from its public and general acts as sovereign. Zafer TaahhutInsaat ve TicaretA.S. v. UnitedStates, 833 F.3d 1356 (Fed. Cir. 2016).

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