CBCA 8087(6360)-REM

DISMISSED FOR LACK OF JURISDICTION OR, ALTERNATIVELY, DENIED: July 1, 2024 CBCA 8087(6360)-REM, 8088(6627)-REM AVUE TECHNOLOGIES CORPORATION, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent in CBCA 8087(6360)-REM, and GENERAL SERVICES ADMINISTRATION, Respondent in CBCA 8088(6627)-REM. Andy Liu of Nichols Liu LLP, Washington, DC, counsel for Appellant. Lucy G. Mac Gabhann and Douglas W. Kornreich, Office of the General Counsel, Department of Health and Human Services, Baltimore, MD, counsel for Respondent in CBCA 8087(6360)-REM. James T. Van Biber and Fallyme E. Guerrero, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent in CBCA 8088(6627)-REM. Before Board Judges SHERIDAN, O’ROURKE, and CHADWICK. CHADWICK, Board Judge. CBCA 8087(6360)-REM, 8088(6627)-REM 2 These consolidated appeals are before the Board on remand from the United States Court of Appeals for the Federal Circuit. See Avue Technologies Corp. v. Secretary of Health & Human Services, 96 F.4th 1340 (Fed. Cir. 2024). Appellant, Avue Technologies Corporation (Avue), licenses software that another company sells under a Federal Supply Schedule (FSS) contract awarded by respondent General Services Administration (GSA). The Food and Drug Administration (FDA) acquired a subscription to the software from the schedule contractor. Avue alleges that FDA breached the software license and owes Avue damages. The Court of Appeals vacated our prior holding that we lacked subject matter jurisdiction. Avue Technologies, 96 F.4th at 1346. We resumed the case by considering cross-motions for summary judgment on entitlement that the parties had filed and briefed in late 2021. As we explain, we conclude again that we lack jurisdiction—on a different basis, we believe, than the Court of Appeals considered. Alternatively, in case we have misunderstood the Court’s mandate, we grant the joint motion of respondents, Health and Human Services Administration (HHS) (FDA’s parent agency) and GSA, on the merits and deny the appeals. We base both our jurisdictional decision and our alternative merits holding on our conclusion that the license agreement under which Avue seeks relief is not a procurement contract. Background We determine the following historical and procedural facts to be undisputed for purposes of the cross-motions, except as noted. The FSS Order Avue offers a software “platform” that allows organizations to automate administrative and human resources tasks. Avue does not sell its software directly to federal agencies. For those users, Avue offers annual subscriptions to what it calls Avue Digital Services (ADS) through an unaffiliated reseller, Carahsoft Technology Corporation (Carahsoft), which holds an FSS contract. “Avue attempts to govern its relationship with end users of its software via an [end user license agreement (EULA)], which Avue calls a master subscription agreement (‘MSA’).” Avue Technologies, 96 F.4th at 1342. GSA and Carahsoft modified Carahsoft’s schedule contract to add ADS subscriptions in May 2012. As the Board wrote in 2022: [T]he modification form states in part, “GSA approved EULA rider are [sic] hereby incorporated into this contract.” The context indicates that the “EULA rider” described as being “incorporated” is [Avue’s MSA]. The attachments CBCA 8087(6360)-REM, 8088(6627)-REM 3 to the 2012 modification include an unsigned, undated template version of Avue’s MSA (with the words “CLIENT NAME” on the title page where the subscriber’s name would be) . . . . The template version of the MSA appended to the modification states, just above the empty signature blocks, “In the event this agreement is incorporated into a government contract award, execution by the parties is not necessary.” (Capitalization altered.) The document has seventeen sections with paragraphs numbered 1.0 to 17.6.