ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of --

Man & Machine, Inc. 

Under Contract No. 000000-00-0-0000 

APPEARANCE FOR THE APPELLANT: 

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APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 61608 

Mr. Clifton Broumand 

President 

Laurel C. Gillespie, Esq. 

Chief Trial Attorney 

Ian F. Rothfuss, Esq. 

James A. Douglas, Esq. 

Trial Attorneys 

Defense Health Agency 

Falls Church, VA 

OPINION BY ADMINISTRATIVE JUDGE SHACKLEFORD ON THE 

GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION AND 

FAILURE TO STATE A CLAIM 

The government moves to dismiss this appeal for lack of jurisdiction, arguing 

that no contract existed between the parties, or, in the alternative, that appellant failed 

to state a claim upon which relief can be granted. Appellant opposes the motion. The 

Board grants the motion and dismisses the appeal for lack of jurisdiction. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

1. In 2015 , a nurse consultant for the Infection Prevention and Control Service 

at Walter Reed National IVIilitary Medicai Center (hereinafter WRNMMC) requested 

the WRNMMC information technology (IT) department conduct market research to 

determine if it could find a company with a common access card (CAC) enabled 

keyboard that could be easily sanitized and disinfected (gov't mot., ex. G-1 at 1 ). 

2. In response to the request, the WRNMMC chief information officer (CIO) 

assigned Mr. Marshall Bailey, an information technology contractor, to identify 

potential vendors of such CAC-enabled keyboards (gov't mot., exs. G-1 at 1, G-3 at 1). 

3. Mr. Bailey identified Man & Machine, Inc., (hereinafter appellant or MMI) 

as a potential vendor for such products, since MMI designed and manufactured 

keyboards, mice, and other computer accessories (gov't mot., ex. G-3 at 1-2). 
4. Mr. Bailey requested information about MMI's waterproof keyboards, mice, 

and accessories to test and evaluate (gov't mot., ex. 3 at 1 ). In response to the request 

from the government, MMI sent test products to WRNMMC on or about December 14, 

2015 (app. resp., exs. A-1 to -3). 

5. Over the course of the next year, MMI and WRNMMC communicated 

regarding the products provided. The parties discussed potential modifications and 

Mr. Bailey's inability to obtain funding for purchase of any products. (R4, tabs 1 (b ), 

l(c); app. resp., exs. A-3 , -4, -8) 

6. In an email dated January 16, 2017, MMI requested WRNMMC return the 

products, stating " [we] would like to get our products back so we can show them to 

other people. If not, then no problem. " (R4, tab 1 (b) at DHA-R4-9) 

7. On or about November 7, 2017, WRNMMC received two invoices from 

MMI dated October 23 , 2017 (gov't mot., ex. G-3 at 3). The first invoice number 

328291 , totaled $118,773.00 for miscellaneous product development costs (R4, tab l(a) 

at DHA-R4-2). The second invoice number 328290, totaled $1 ,744.18 for the various 

keyboards and mice sent to WRNMMC (R4, tab l(a) at DHA-R4-3-4). 

8. In addition to the invoices, WRNMMC received an undated letter, indicating 

it was included with the invoices. The letter stated that MMI "agreed to provide and 

understood that [WRNMMC] are not committing to the purchase of any product." 

Even so, MMI alleged in the letter that WRNMMC constructively accepted the 

products and was required to pay for them. (R4, tab 1) 

9. In November 2017, WRNMMC attempted to return the equipment provided 

by MMI (gov't mot., ex. G-2 at 2). MMI refused to accept the products, alleging that 

WRNMMC did not follow the "process" MMI required for return shipment. Additionally, 

MMI assumed that the products were not properly decontaminated before return, although 

it is unclear if this was ever investigated or discussed amongst the parties. (App. resp. at 3) 

10. By correspondence dated December 20, 2017, MMI forwarded the letter, 

invoices, and attachments to the head of the Defense Health Agency (DHA) contracting 

activity. The correspondence specifically states " [t]his is not under formal contract as 

we didn't know one was required." (R4, tab 2) 

11. The contracting officer sent a letter to MMI on December 21 , 201 7, 

indicating DHA would not respond to the package submitted by MMI because it was 

not a properly certified claim (R4, tab 3). MMI responded by correspondence dated 

December 22, 2017, certifying its claim (R4, tab 4). 

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12. The contracting officer issued a final decision denying appellant's claim by 

letter dated February 7, 2018 (R4, tab 5). MMI timely filed its notice of appeal with the 

Board on April 23 , 2018. 

DECISION 

The government contends that the Board lacks jurisdiction over this appeal 

because no contract, express or implied, existed. Alternatively, the government argues 

that even if the Board were to find jurisdiction over the appeal, MMI failed to state a 

claim upon which relief can be granted because the facts contained in appellant's 

complaint fail to allege the existence of a contract. MMI opposes the motion, arguing 

that it has made a non-frivolous assertion of an implied contract between the parties. 

MMI also argues that there has been a conversion of its property and efforts, allowing 

for recovery. 

"Appellant, as the proponent of the Board's jurisdiction, bears the burden of 

establishing jurisdiction by a preponderance of the evidence." CCIE & Co. , ASBCA 

Nos. 58355, 59008, 14-1 BCA ,r 35,700 at 174,816 (internal citations omitted). "The 

facts supporting jurisdiction are subject to our fact-finding upon a review of the 

record." Id. 

While the existence of a contract is essential to establish jurisdiction, an 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 ,r 34,905 at 171 ,640 (quoting Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 

1353 (Fed. Cir. 2011)). The appellant "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, 13-1 BCA ,r 

35,234 at 172,994 (internal citations omitted). "However, appellant must be able to 

make a non-frivolous allegation that a contract existed between it and the government." 

Interaction Research Inst., Inc., ASBCA No. 61505, 18-1 BCA ,r 37,196 at 180,080 

(citing Leviathan Corporation, ASBCA No. 58659, 16-1 BCA ,r 36,372 at 177,294). To 

make a non-frivolous assertion of the existence of a contract, "an appellant must present 

at least some plausible evidence of a contract to satisfy both the 'preponderance of the 

evidence' standard and the 'non-frivolous' allegation standard." Safeco Ins. Co. of Am. , 

ASBCA No. 60952, 17-1 BCA ,r 36,819 at 179,450. 

The parties agree no express contract exists (SOF ,r 8). Thus, we must determine 

if the factual allegations amount to a "non-frivolous" allegation of an implied-in-fact 

contract. "An implied-in-fact contract has all the requirements of an express contract 

except that the evidence of the meeting of the minds differs." Safeco, 17-1 BCA ,r 

36,819 at 179,450 (citing Hanlin v. United States, 316 F.3d 1325, 1328 (Fed. Cir. 

2003)). As such, in order to establish the possibility of an implied-in-fact contract, an 

appellant should analyze its allegations of the existence of a contract with an eye 

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towards the following: ( 1) mutuality of intent; (2) consideration; (3) lack of ambiguity 

in offer and acceptance; and ( 4) the existence of a government representative whose 

conduct is relied upon who had actual authority to bind the government in a contract. 

Safeco, 17-1 BCA ,r 36,819 at 179,450 (quoting Todd Pacific Shipyards Corp. , ASBCA 

No. 55126, 08-2 BCA ,r 33,891 at 167,755). 

In Safeco, the Board looked to other decisions involving similar jurisdictional 

motions in order to analyze when an allegation amounted to "non-frivolous" stating: 

In Tech Projects, LLC, ASBCA No. 58789, 15-1 BCA ,r 

35,940, we denied a motion to dismiss for lack of jurisdiction 

because the contracting officer's final decision agreed that 

there was an implied-in-fact contract. Id. at 175,661. In 

Black Tiger Co. , ASBCA No. 59819, 16-1 BCA ,r 36,423 , 

we denied a government motion to dismiss for lack of 

jurisdiction because the "notice of appeal included (1) a 

contract number; (2) an SF 1449 that identified appellant on 

the first page of the contract as the contractor; and (3) a 

document appellant asserted was an invoice for the equipment 

provided under the contract." Id. at 177,570. In Leviathan 

Corp., 16-1 BCA ,r 36,372, we denied a motion to dismiss for 

lack of jurisdiction because of a contract modification that 

offered settlement "on behalf of the U.S. Government" and 

included a release of claims. Id. at 177,294. We concluded 

that in each of these cases appellant had made a 

"non-frivolous" allegation that a contract existed between it 

and the government. However, in each case there were facts 

that indicated a contract existed. We do not see any 

similarities between these cases and the facts alleged by 

Safeco. Some of the problems we have are that the COE was 

not a party to the escrow agreement [ ... ] and reliance by 

subcontractors iikewise does not indicate an intent to enter 

into a contract. The facts itemized above do not relate in any 

way to any of the elements of an implied-in-fact contract, i.e., 

mutuality of intent to contract, lack of ambiguity in offer and 

acceptance, consideration, and that the government 

representative whose conduct is relied upon had actual 

authority to bind the government in contract. Safeco has not 

made a "non-frivolous" allegation that an implied-in-fact 

contract existed between it and the COE. 

Id. at 179, 450-51. 

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Although MMI alleges there is an implied contract between the parties, like the 

appellant in Safeco, it does nothing more to support this assertion. Instead, appellant 

focuses on the fact that it provided pricing, terms and conditions to WRNMMC, and 

that WRNMMC did not return the products (SOF 115, 6; see also app. resp. at 6). The 

facts presented by appellant do not relate to the elements of an implied-in-fact contract. 

Appellant admits there was no mutual intent for the parties to enter into a contract. In 

fact, appellant admits that it knew the government was under no obligation to purchase 

any of the products it voluntarily sent for evaluation. (SOF 118, 10) Additionally, at 

no point during the exchanges between appellant and WRNMMC was a person with 

authority to bind the government involved. In fact, the majority, if not all substantive 

conversations about the product took place with Mr. Bailey, a contractor himself (SOF 

1 2). As such, we conclude that appellant has not made a "non-frivolous" assertion of 

an implied-in-fact contract between itself and the government. 

Further, while the Board understands appellant's position that WRNMMC is 

responsible for damages under a theory of conversion, "[t]he Board lacks jurisdiction to 

entertain a claim based upon tortious conduct which is independent of a contract 

between the government and a prime contractor." Qatar Int '! Trading Co. , ASBCA 

No. 55533, 08-1 BCA 133,829 at 167,428 (citing L&M Thomas Concrete Co., ASBCA 

Nos. 49198, 49615, 98-1BCA129,560 at 146,538). Here, because appellant failed to 

make a non-frivolous assertion about the existence of a contract, the Board does not 

have jurisdiction over any claims for tortious conduct, as such claims could not arise 

from a related contractual obligation. 

CONCLUSION 

The Board lacks jurisdiction over Man & Machine, Inc.' s appeal. The 

government's motion is granted and the appeal is dismissed for lack of jurisdiction. 

Dated: July 26, 2019 

(Signatures continued) 

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RICHARD SHACKLEFORD 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 
I concur 

OWEN C. WILSON 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 

I concur 

/1 .·~ CRAif:t. CLARKE 

Administrative Judge 

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. 61608, Appeal of Man & 

Machine, Inc., rendered in conformance with the Board's Charter. · 

Dated: 

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PAULLA K. GATES-LEWIS 

Recorder, Armed Services 

Board of Contract Appeals