ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- Interaction Research Institute, Inc.
Under Contract No. 000000-00-0-0000
APPEARANCE FOR THEAPPELLANT: ) ) ) ) )

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 61505

Ms. Barba B. Affourtit

Vice President Craig D. Jensen, Esq.

Navy ChiefTrial Attorney John W. Torresala, Esq. Erin L. Hernandez, Esq. Russell R. Henry, Esq.

Trial Attorneys Western AreaCounsel Office Camp Pendleton, CA
OPINION BYADMINISTRATIVE JUDGE WOODROW ON THE GOVERNMENT'S MOTION TO DISMISS FORLACK OF JURISDICTION
The Department ofthe Navy (government) moves to dismiss this appeal for lack of jurisdiction, asserting that Interaction Research Institute, Inc. (appellant), did not file a claim subjecttothe Contracts DisputesAct (CDA), 41 U.S.C. §§ 7101-7109 because there was no express or implied contract between the parties. Forthe reasons set forth below, we deny the motion.
STATEMENT OF FACTS (SOF) FORPURPOSES OF THEMOTION
1. By letter dated September 1, 2011, appellant submitted a document labeled as a claimtotheregional contracting office (RCO) for unpaidtraining services allegedly providedto I Marine Expeditionary Force (I MEF). Appellant's letter asserts that it "was paid for seven ofthese services via SF-182 (Certification, Authorization and Validation ofTraining) contract vehicles. However, theremainder offour training sessions conducted by [appellant] remain unpaid." (R4, tab 1at 1-4)
2. I MEF conducted an administrative investigation into appellant's allegations. The investigation confirmed that seven training services were properly paid utilizing SF-182s. (R4, tab 2 at 200) The standard operatingprocedure (SOP) at the time providedthat "anyrequirementunder $25,000 wasto submit and receive approval on SF-182's and then pay withthe Government Commercial Purchase Card (GCPC). It 

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i!was also the SOP for any requirement over $25,000 to submit a purchase request to the RCO for approval and award ofa contract." (Id. at 1) The investigation was unable to locate any SF-182s orcontracts for the alleged unpaid training services. However, based on otherevidence, the investigation determined that some ofthe unpaid training services did occur. (Id. at 200)
3. The RCO notified appellant that it was ratifying some ofthe unpaid training services as unauthorized commitments. Regarding the remaining alleged unpaid training services, the RCO statedthat it "has found no evidence to supportthat a government representative made an agreement with youto provide the training on each ofthose dates orthat training occurred. This includes the training dates of April 6-10, 2009 andJune 18 through August 15, 2009." (R4, tab 3 at 1-2)
4. By letter dated January 5, 2016, appellant submitted a request to the RCO for the remaining unpaid training services. Appellantrequested "a document stating the final disposition regarding [appellant's] request for payment ofservices completed in FY 2009, including the rationale and investigative findings for disposition decisions." (R4, tab 4 at 1)
5. I MEF conducted another administrative investigation. The investigation concludedthatthe remaining alleged unpaid training services could not be validated. (R4, tab 6 at4-5) By letter dated October 31, 2017, the RCO notified appellantthat no further actions orpayments would be made (R4, tab 7).
6. OnJanuary 24, 2018, appellant filed a notice ofappeal with the Board allegingthat it has not beenpaid for services provided to I MEF betweenApril 6 and August 15, 2009.
DECISION
In moving to dismiss for lack of jurisdiction,the government maintains that it has not received a claim from appellant, as defined by FAR2.101, because no express or implied contract existedbetweenthe parties. The government notes that the RCO purposefully did not style its October 31, 2017 letter as a contracting officer's final decision because it did not recognize appellant's request as a valid claim. (Gov't mot. at 6-8)Appellant argues that the services rendered "were executedto fulfill an 'implied' contract at the minimum, and quite possibly an 'express' contract that was

2lost by the Government Agency during the long delays to process the SF-l82s" (app. reply br. at I). Although the government's motion is ostensibly centered on the claim, in essence, it is an allegation that there was no contract. Accordingly, we will review it as such. Appellant bears the burden ofestablishing the Board'sjurisdictionby a preponderance ofthe evidence. Reynolds v. Army &AirForce Exchange Service, 846 F.2d 746, 748 (Fed. Cir. 1988); Total ProcurementService, Inc., ASBCA No. 53258, 01-2 BCA 

### ,i 31,436 at 155,237. Nevertheless, appellant "need only allege the existence ofa contract to establishthe Board'sjurisdiction under the CDA." American General Trading & Contracting, WLL, ASBCA No. 56758, 12-1 BCA ,i 34,905 at 171,640 (quoting Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1353 (Fed. Cir. 2011)). It "neednot prove that either an express or implied-in-fact contract exists. Whether such a contract was formed and breached goes to the merits ofthe appeal." Tele-Consultants, Inc., ASBCA No. 58129, 13 BCA 

### ,i 35,234 at 172,994. However, appellant mustbe able to make a non-frivolous allegation that a contract existed between it and the government. Leviathan Corporation, ASBCA No. 58659, 16-1 BCA

### ,J 36,372 at 177,294. The elements ofan express and implied-in-fact contract with the government are the same. Hanlin v. UnitedStates, 316 F.3d 1325, 1328 (Fed. Cir. 2003). Each "requires proofof(1) mutuality ofintent, (2) consideration, (3) an unambiguous offer and acceptance, and (4) 'actual authority' on the part ofthe government's representative to bindthe government in contract." Id However, the nature ofthe evidence establishing the contract will differ. Id. "Animplied-in-fact contract is one founded upon a meeting ofminds and 'is inferred, as a fact, from the conduct ofthe parties showing, in the light ofthe surrounding circumstances, theirtacit understanding.'" Id. (quotingBait. & Ohio R.R. v. UnitedStates, 261 U.S. 592, 597 (1923)). Appellant consistently has asserted that it was contracted to perform training services for 

### I MEF via "SF-182 contract vehicles." The practice ofpurchasing training by using a GCPC in conjunction with an SF-182 was authorized for commercial training up to $25,000 and was apparently, often utilized by 

### IMEF. (SOF ,i 2; gov't ex. 12 at 36) According to an internal Navy memorandum, an SF-182 is not an express contract; rather, it is used to document a training, education and professional development event from a non-government source. (Gov't ex. 13) This is not fatal to appellant's allegation ofthe existence ofa contract, however, because it may have an implied-in-fact contract with the government, even without an express document. Moreover, under appropriate circumstances, "implied actual authority" may be used to bind the government in contract, thus satisfying the fourth element ofa contract. See

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# IAdvancedTeam Concepts, Inc. v. UnitedStates, 68 Fed. Cl. 147 (2005); H. Landau 

### & Co. v. UnitedStates, 886 F.2d 322 (Fed. Cir. 1989). In the present appeal, the SF-182 could be used as evidence to support finding an implied-in-fact contract between the government and appellant. Therefore, we must determine whether appellant has made a non-frivolous allegation ofan implied-in-fact contractbased on the alleged unpaid training services thatwere purchased via SF-182s. The government maintains there was no implied-in-fact contract because after multiple administrative investigations it could not locate any ofthe alleged SF-l82s. Without this documentation the government states that any assertions made to appellant by unit-level personnel thatthese alleged trainings were authorized via SF-182s would amount to unauthorized commitments. (Gov't mot. at 8) Review ofthe record shows that appellant had in fact been properly paid for seven previously funded classes using SF-182s (SOF**~** 2). The use ofan SF-182 to purchase training was authorized by the SOP atthe time. While the government may have been unable to locate any SF-182s for the remaining alleged unpaid training services at issue in this appeal, the question ofwhetherthese documents and, consequently, an implied-in-fact contract exists goes to the merit ofthe appeal and does not affect the Board'sjurisdiction. Underthe circumstances, appellant's allegation that it had an implied-in-fact contract based on alleged training purchased via SF-182s is not frivolous.
We next address appellant's reply briefin which it "acknowledges that the unpaid services represent 'Unauthorized Commitments' at this point in time, since the Standard Form 182s (SF-182s) will probably never be located" (app. reply br. at 1). The government argues that this statementby appellant is an acknowledgement that no documentation exists to supportthe allegation ofan implied-in-fact contract (gov't resp. at 4-5). We do notread appellant's statement as broadly as the government argues. In doing so, we note that appellant is apro se litigant and that typicallypro se litigants lack knowledge and experience as to pleadings. MACHII, ASBCA No. 56630, 10-1 BCA**~** 34,357 at 169,672. We do not believe appellant intends to argue that the training services provided were both unauthorized commitments and implied-in-fact contracts. First, by definition, an unauthorized commitment cannot be an implied-in-fact contractbecause a contract requires proofofactual authority to bind the government. More importantly, acknowledgingthat the training services were unauthorized commitments would divest the Board of jurisdiction overthis appeal. We do not believe appellant intended to argue againstjurisdiction. Ifit did, appellant could have submitted a requestto withdrawthe appeal. Instead, appellant submitted a response to the motion to dismiss indicatingthat appellant believes the Board has jurisdictionto hearthis appeal.

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# ICONCLUSION Appellant alleges that it was properly retained to perform training services for IMEF via SF-182s that were either lost or destroyed overtime. Underthe circumstances, appellant's assertion is a non-frivolous allegation ofan implied-in-fact contract sufficient to sustain the Board'sjurisdiction. Accordingly, the government's motion is denied. Dated: November 5, 2018

I concur

RICHARD SHACKLEFORD Administrative Judge Acting Chairman Armed Services Board ofContractAppeals 7

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# D.WOODROW Administrative Judge Armed Services Board ofContract Appeals
I concur

Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA No. 61505, Appeal of Interaction Research Institute, Inc., rendered in conformance with the Board's Charter. Dated:

5 JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals 

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