CBCA 6303

APPELLANT’S MOTION TO DISMISS GRANTED: September 25, 2019 CBCA 6303 LEIDOS INNOVATIONS CORPORATION, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Shelly L. Ewald of Watt, Tieder, Hoffar & Fitzgerald, LLP, McLean, VA, counsel for Appellant. Tyler J. Mullen and Sarah E. Park, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Judges SOMERS (Chair), HYATT, and LESTER. SOMERS, Board Judge. Pending before the Board is the motion of the General Services Administration (GSA or Government) to dismiss for lack of jurisdiction or for failure to state a claim. GSA contends that Leidos Innovations Corporation (Leidos) has no standing to appeal because it is not in privity of contract with the Government. GSA contends that Lockheed Martin Integrated Systems, Inc. (Lockheed), as the actual recipient of the GSA contracting officer’s final decision, did not timely file an appeal. Also pending is Leidos’ motion to dismiss for lack of jurisdiction or for failure to state a claim. Leidos asserts that GSA failed to issue a contracting officer’s final decision to CBCA 6303 2 Leidos, the entity currently under contract with GSA. Alternatively, appellant contends that GSA’s complaint must be dismissed for failure to state a claim upon which relief can be granted. We find that, as a result of a novation agreement, Leidos is the contractor in privity with GSA. As a consequence, the GSA contracting officer’s final decision, issued to Lockheed, is ineffective because the final decision was not issued to the proper contractor. Accordingly, we grant Leidos’ motion to dismiss for lack of jurisdiction. Our decision renders all other pending motions moot. Background This dispute arises out of a Federal Supply Schedule (FSS) contract awarded by GSA to Lockheed on December 1, 2002. On August 29, 2013, the GSA Office of Inspector General (OIG) concluded, through an audit, that some of Lockheed’s employees did not meet the labor qualification requirements for the positions which Lockheed billed under the GSA contract. On April 4, 2014, Lockheed requested that the contract be cancelled. GSA cancelled the contract on May 10, 2014. On July 28, 2016, GSA sent Lockheed a summary of findings following a post-award audit on the original contract. Leidos responded to GSA’s findings on September 30, 2016. Leidos responded instead of Lockheed because on August 16, 2016, Lockheed had divested itself of the business unit responsible for the GSA contract, which became a wholly-owned subsidiary of Leidos Holdings, Inc., known as Leidos Innovations Corporation. Effective that same day, Lockheed and Leidos executed a novation agreement that was signed by Lockheed’s Corporate Administrative Contracting Officer (CACO), who was an employee of the Defense Contract Management Agency (DCMA), and representatives of the two contractors. In the novation agreement, the parties expressly indicated that the agreement covered contracts that had been completely performed at the time of the novation, including the contract issued by GSA to Lockheed on December 1, 2002. The agreement stated, in pertinent part: (a) The parties agree to the following facts: (1) The Government, represented by various Contracting Officers, has entered into certain contracts with the Transferor, as shown in the attached list marked “Exhibit A” and incorporated in this Agreement by reference.