ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of

-- ) ) SKE Technical Services GmbH ) ) Under ContractNos. DABNOl-03-C-0025 ) W912PE-04-D-0001 )
APPEARANCES FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 59711

William F. Savarino, Esq. Andrew K. Wible, Esq.

Cohen Mohr LLP Washington, DC Raymond M. Saunders, Esq.

Army ChiefTrial Attorney CPT Lyn P. Juarez, JA

Trial Attorney
ORDER OF DISMISSAL ONAPPELLANT'S MOTION TO DISMISS FORLACK OF JURISDICTION
This order arises from SKE Technical Services GmbH's (SKE-TS's) motion to dismiss this appeal for lack ofsubject matterjurisdiction. The Department ofthe Army (government) awarded the captioned contracts to BOS GmbH (BOS) for various maintenance services at Army bases in Germany (R4, tabs 1-2). BOS is an acronym for Base Operation Services GmbH, ajointventure between SKE International GmbH, a German entity, and Burns & Roe Services Corp., an American entity (SKE-TS mot. at 1-2,,3; gov'tresp. at 1,, l; R4, tab 10 at 1,,2). On 17 November 2014, the contracting officer (CO) issued a final decision (COFD) asserting a government claim against BOS demanding payment for alleged unallowable costs under Federal Acquisition Regulation (FAR) Part 31 in fiscal year 2007. The decision was addressed to "SKE Technical Services GmbH (formerly Base Operation Services GmbH)." (R4, tab 9) The docketed appeal was captioned as "Appeal ofSKE Technical Services GmbH, f/k/a Base Operations Services GmbH" (Bd. notice ofdocketing dtd. 2 December 2014). 1

1 The notice ofappeal, as well as other documents in the correspondence and Rule 4 files, incorrectly refer to "Base Operations Services GmbH." The company's actual name is "Base Operation Services GmbH."

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SKE-TS moves to dismiss the appeal for lack of jurisdiction, arguing that it is not a "contractor" underthe Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, because it has no privity ofcontract with the government underthe relevant contracts (SKE-TS mot. at 3). The government does not oppose dismissal and agrees that its demand is not against SKE-TS, but against BOS, the contractor (gov't resp. at 4). In her declaration, the CO confirmedthat the final decision asserts a claim against BOS ratherthan SKE-TS (R4, tab 10 at 2-3,**~** 14). Forthe Board to exercisejurisdiction over an appeal from a COFD under the CDA, the appeal must be filed by a contractor. 41 U.S.C. § 7104(a); Binghamton Simulator Co., ASBCA No. 59117,**14-1BCA~35,715** at 174,871. Since the parties agree that SKE-TS is not a contractorwith respect to these contracts, and nothing in the review ofthe limited record indicates otherwise, it is determinedthat the Board lacksjurisdiction overthis appeal. Accordingly, SKE-TS's motion is granted and the appeal is dismissed. The appeal caption is changedto reflectthis opinion.
Dated: 23 March 2015

1 dmini rative Judge Armed Services Board ofContract Appeals

I certifythatthe foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA No. 59711, Appeal ofSKE Technical Services GmbH, rendered in conformance with the Board's Charter.
Dated:

2 JEFFREYD. GARDIN Recorder, Armed Services Board ofContract Appeals