CBCA 6360

DISMISSED FOR LACK OF JURISDICTION: January 14, 2022 CBCA 6360, 6627 AVUE TECHNOLOGIES CORPORATION, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent in CBCA 6360, and GENERAL SERVICES ADMINISTRATION, Respondent in CBCA 6627. Andy Liu and Andrew Victor 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 6360. Fallyme E. Guerrero and James T. Van Biber, Office of General Counsel, General Services Administration, Kansas City, MO, counsel for Respondent in CBCA 6627. Before Board Judges SHERIDAN, O’ROURKE, and CHADWICK. CHADWICK, Board Judge. CBCA 6360, 6627 2 These consolidated appeals raise a novel issue. The appellant, Avue Technologies Corporation (Avue), developed and licenses software that another company sells to the Government under a schedule contract awarded by the General Services Administration (GSA). The Food and Drug Administration (FDA) acquired a subscription to the software from the schedule contractor. Avue now seeks damages under Avue’s software license agreement, which, as discussed below, we may assume is fully incorporated in the prime contractor’s schedule contract and in FDA’s order from the prime contractor. The parties briefed cross-motions for summary judgment on entitlement, but we focus on a jurisdictional issue on which we invited supplemental briefing after the respondent agencies raised it in their reply. We must decide without benefit of precedent directly on point whether Avue’s claim that FDA breached the software license is a claim under a procurement contract within our limited jurisdiction under the Contract Disputes Act (CDA). We hold that we lack jurisdiction because Avue does not seek relief under a CDA contract. Background The Board previously addressed these appeals in Avue Technologies Corp. v. Department of Health & Human Services, CBCA 6360, 19-1 BCA ¶ 37,375 (denying a motion to dismiss arguing that “Avue is [only] a subcontractor”), and Avue Technologies Corp. v. Department of Health & Human Services, CBCA 6360, et al., 20-1 BCA ¶ 37,503 (denying two motions to dismiss arguing that (1) Avue submitted its claim to the wrong agency, and (2) Avue had no GSA contract and “[n]ever dealt directly with GSA”). We focus here on the background relevant to the current jurisdictional issue and rely on undisputed facts propounded by Avue to support its merits motion. See Board Rule 8(f)(1), (2) (48 CFR 6101.8(f)(1), (2) (2020)). Avue developed a software “platform” that allows government agencies “to automate federal job classification” by interacting with a database. Access to Avue’s software, called Avue Digital Services (ADS), is sold commercially for a fixed annual subscription. Avue does not sell subscriptions to the Government directly. Rather, Carahsoft Technology Corp. (Carahsoft) is an authorized reseller of ADS subscriptions under Carahsoft’s Federal Supply Schedule (FSS) contract with GSA. Carahsoft and GSA added ADS to Carahsoft’s existing FSS contract by modification in May 2012. Box 14 of the modification form states in part, “GSA approved EULA [end user license agreement] rider are [sic] hereby incorporated into this contract.” The context indicates that the “EULA rider” described as being “incorporated” is what Avue calls its master subscription agreement (MSA). The attachments to the 2012 modification include an unsigned, undated template version of Avue’s MSA (with the words “CLIENT NAME” CBCA 6360, 6627 3 on the title page where the subscriber’s name would be), which Carahsoft had forwarded to GSA earlier in May 2012. As noted below, the MSA refers to itself as a “standard commercial license” for software services and contains terms purporting to bind agency subscribers. The respondent agencies decline to admit that the Avue MSA was “incorporated” in the FSS contract or in an FDA order, and they emphasize that the MSA in the modification file is unsigned. They identify no document other than the MSA, however, that could be the end user license agreement that the modification says it incorporates. Cf.