ASBCA 60654

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) B3 Solutions LLC ) ASBCA No. 60654 ) Under Contract No. SP4701-14-C-0046 ) APPEARANCE FOR THE APPELLANT: Ms. Sharon Y. Thorpe Contracts Vice President APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq. DLA Chief Trial Attorney John F. Basiak, Jr., Esq. Theodore E. Lorenz, Esq. Trial Attorneys DLA Troop Support Philadelphia, PA OPINION BY ADMINISTRATIVE JUDGE PEACOCK ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION The Defense Logistics Agency (DLA) moves to dismiss this appeal for lack of jurisdiction on the basis that B3 Solutions LLC (B3 Solutions) is a second-tier subcontractor with whom the government has no privity of contract. We grant DLA's motion and dismiss the appeal for lack of jurisdiction. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. DLA and Resource Metrix entered into Contract No. SP4701-14-C-0046 (contract) on 31 July 2014 for program management and technical support services for the Wide Area Work Flow (WA WF) program management office (R4, tab 1). The contract contains DFARS 252.219-7009, SECTION 8(A) DIRECT AWARD (SEP 2007), which states, in relevant part: a) This contract is issued as a direct award between the contracting office and the 8(a) Contractor pursuant to the Partnership Agreement between the Small Business Administration (SBA) and the Department of Defense. Accordingly, the SBA, even if not identified in Section A of this contract, is the prime contractor and retains responsibility for 8(a) certification, for 8(a) eligibility  determinations and related issues, and for providing counseling and assistance to the 8(a) Contractor under the 8(a) Program. (R4, tab 1 at 21) 2. By document signed 1August2014, Resource Metrix entered into an agreement with Supreme Solutions for work on the contract (notice of appeal (NOA), attach. 1*). 3. By document signed 20 October 2014, Supreme Solutions, Inc., entered into an agreement with B3 Solutions to provide WA WF operations support (NOA, attach. 2). 4. DLA noted performance deficiencies on Resource Metrix's part and reduced Resource Metrix's April, May, and June invoices in 2015 by 20%. Resource Metrix subsequently reduced payment to its subcontractors. (NOA at 2) 5. B3 Solutions submitted, in its own name, a claim, dated 2 June 2016, to a DLA contracting officer seeking to recover $56,064.25 from DLA for unpaid services (R4, tab 2). 6. DLA denied B3 Solutions' claim by a contracting officer's final decision, dated 14 June 2016 (R4, tab 3). B3 Solutions appealed to this Board on 28 June 2016. B3 Solutions' notice of appeal did not include documentation showing it was submitted with the consent and cooperation, or sponsorship of Resource Metrix or Supreme Solutions. DECISION DLA moves to dismiss this appeal for lack of jurisdiction, asserting that B3 Solutions lacks contractual privity with the government. B3 Solutions argues that it does have contractual privity since the contract was a directed 8(a) award from the SBA and the SBA in tum subcontracted the work out. Therefore, B3 Solutions argues, it has contractual privity with the government through SBA. B3 Solutions bears the burden of establishing the Board's jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air Force Exchange Service, * In its notice of appeal, B3 Solutions states that the document at attachment 1 is the "Prime Contract Number SP4701- l 4-C-0034 Terminated for Convenience" (NOA at 1). However, the document at attachment 1 is the agreement between Resource Metrix and Supreme Solutions. 2 846 F.2d 746, 748 (Fed. Cir. 1988); Total Procurement Service, Inc., ASBCA No. 53258, 01-2 BCA ~ 31,436 at 155,237. Under the Contracts Dispute Act (CDA), only a contractor may appeal to the Board from a contracting officer's final decision. Rahil Exports, ASBCA No. 56832, 10-1BCA~34,355 at 169,646; 41 U.S.C. § 7104(a).