ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of --

Interaction Research Institute, Inc. 

Under Contract No. 000000-00-0-0000 

APPEARANCE FOR THE APPELLANT: 

) 

) 

) 

) 

) 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 61505 

Ms. Barba B. Affourtit 

Vice President 

Craig D. Jensen, Esq. 

Navy Chief Trial Attorney 

John W. T orresala, Esq. 

Erin L. Hernandez, Esq. 

Russell R. Henry, Esq. 

Trial Attorneys 

Western Area Counsel Office 

Camp Pendleton, CA 

OPINION BY ADMINISTRATIVE JUDGE WOODROW ON THE 

GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION 

The Department of the Navy (government) moves to dismiss this appeal for 

lack of jurisdiction, asserting that Interaction Research Institute, Inc. (appellant), did 

not file a claim subject to the Contracts Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 

because there was no express or implied contract between the parties. For the reasons 

set forth below, we deny the motion. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

1. By letter dated September 1, 2011, appellant submitted a document labeled 

as a claim to the regional contracting office (RCO) for unpaid training services 

allegedly provided to I Marine Expeditionary Force (I MEF). Appellant's letter asserts 

that it "was paid for seven of these services via SF-182 (Certification, Authorization 

and Validation of Training) contract vehicles. However, the remainder of four training 

sessions conducted by [appellant] remain unpaid." (R4, tab 1 at 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 operating procedure (SOP) at the time 

provided that "any requirement under $25,000 was to submit and receive approval on 

SF-182's and then pay with the Government Commercial Purchase Card (GCPC). It 
was also the SOP for any requirement over $25,000 to submit a purchase request to the 

RCO for approval and award of a contract." (Id. at 1) The investigation was unable to 

locate any SF-182s or contracts for the alleged unpaid training services. However, 

based on other evidence, the investigation determined that some of the unpaid training 

services did occur. (Id. at 200) 

3. The RCO notified appellant that it was ratifying some of the unpaid training 

services as unauthorized commitments. Regarding the remaining alleged unpaid 

training services, the RCO stated that it "has found no evidence to support that a 

government representative made an agreement with you to provide the training on 

each of those dates or that training occurred. This includes the training dates of 

April 6-10, 2009 and June 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. Appellant requested "a document stating 

the final disposition regarding [appellant's] request for payment of services 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 

concluded that the remaining alleged unpaid training services could not be validated. 

(R4, tab 6 at 4-5) By letter dated October 31, 2017, the RCO notified appellant that no 

further actions or payments would be made (R4, tab 7). 

6. On January 24, 2018, appellant filed a notice of appeal with the Board 

alleging that it has not been paid for services provided to I MEF between April 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 FAR 2.101, because no express 

or implied contract existed between the parties. The government notes that the RCO 

purposefully did not style its October 31, 201 7 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 executed to fulfill an 

'implied' contract at the minimum, and quite possibly an 'express' contract that was 

2 
lost by the Government Agency during the long delays to process the SF-l 82s" ( 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 of establishing the Board's jurisdiction by a 

preponderance of the evidence. Reynolds v. Army & Air Force Exchange Service, 846 

F.2d 746, 748 (Fed. Cir. 1988); Total Procurement Service, Inc., ASBCA No. 53258, 

01-2 BCA ,i 31,436 at 155,237. Nevertheless, appellant "need only allege the 

existence of a contract to establish the Board's jurisdiction 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 "need not prove that either an express or implied-in-fact contract exists. 

Whether such a contract was formed and breached goes to the merits of the appeal." 

Tele-Consultants, Inc., ASBCA No. 58129, 13 BCA ,i 35,234 at 172,994. However, 

appellant must be 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 of an express and implied-in-fact contract with the government 

are the same. Hanlin v. United States, 316 F.3d 1325, 1328 (Fed. Cir. 2003). Each 

"requires proof of (1) mutuality of intent, (2) consideration, (3) an unambiguous offer 

and acceptance, and (4) 'actual authority' on the part of the government's 

representative to bind the government in contract." Id However, the nature of the 

evidence establishing the contract will differ. Id. "An implied-in-fact contract is one 

founded upon a meeting of minds and 'is inferred, as a fact, from the conduct of the 

parties showing, in the light of the surrounding circumstances, their tacit 

understanding.'" Id. (quoting Bait. & Ohio R.R. v. United States, 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 of purchasing 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 I MEF. (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 of the existence of a 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 of a contract. See 

3 
Advanced Team Concepts, Inc. v. United States, 68 Fed. Cl. 147 (2005); H. Landau & 

Co. v. United States, 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 of an implied-in-fact contract based on the alleged unpaid 

training services that were purchased via SF-182s. 

The government maintains there was no implied-in-fact contract because after 

multiple administrative investigations it could not locate any of the alleged SF- l 82s. 

Without this documentation the government states that any assertions made to 

appellant by unit-level personnel that these alleged trainings were authorized via 

SF-182s would amount to unauthorized commitments. (Gov't mot. at 8) 

Review of the record shows that appellant had in fact been properly paid for 

seven previously funded classes using SF-182s (SOF ~ 2). The use of an SF-182 to 

purchase training was authorized by the SOP at the 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 of whether these documents and, 

consequently, an implied-in-fact contract exists goes to the merit of the appeal and 

does not affect the Board's jurisdiction. Under the 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 brief in 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 statement by appellant is an acknowledgement that no 

documentation exists to support the allegation of an implied-in-fact contract (gov't 

resp. at 4-5). We do not read appellant's statement as broadly as the government 

argues. In doing so, we note that appellant is a pro se litigant and that typically pro se 

litigants lack knowledge and experience as to pleadings. MACH II, 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 contract because a contract requires proof of actual authority to bind 

the government. More importantly, acknowledging that the training services were 

unauthorized commitments would divest the Board of jurisdiction over this appeal. 

We do not believe appellant intended to argue against jurisdiction. If it did, appellant 

could have submitted a request to withdraw the appeal. Instead, appellant submitted a 

response to the motion to dismiss indicating that appellant believes the Board has 

jurisdiction to hear this appeal. 

4 
CONCLUSION 

Appellant alleges that it was properly retained to perform training services for 

I MEF via SF-182s that were either lost or destroyed over time. Under the 

circumstances, appellant's assertion is a non-frivolous allegation of an implied-in-fact 

contract sufficient to sustain the Board's jurisdiction. Accordingly, the government's 

motion is denied. 

Dated: November 5, 2018 

I concur 

RICHARD SHACKLEFORD 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

7

K ~ D. WOODROW 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

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. 61505, Appeal of 

Interaction Research Institute, Inc., rendered in conformance with the Board's Charter. 

Dated: 

5 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals