ASBCA 58789

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Tech Projects, LLC ) ASBCA No. 58789 ) Under RFP Nos. W9124Q-08-T-0003 ) W9124Q-08-R-0004 ) APPEARANCE FOR THE APPELLANT: Joseph E. Schmitz, Esq. Schmitz & Socarras LLP McLean, VA APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney CPT Evan C. Williams, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE YOUNGER ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION Appellant Tech Projects, LLC (Tech Projects), a participant in the Small Business Set-Aside Program, seeks to recover costs incurred in connection with two requirements issued by the White Sands Missile Range, New Mexico (White Sands or Army). The first requirement was to design and install a virtual fence, and the second was to operate and maintain target control services. The government subsequently withdrew one requirement and cancelled the other. The government now moves to dismiss, arguing that we lack jurisdiction because no contracts were awarded. Tech Projects opposes, chiefly arguing that it has made the requisite non-frivolous allegation of jurisdiction. We deny the motion. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION A. Virtual Fence Requirement 1. By letter to White Sands dated 12 May 2008, a lead business development specialist in the Small Business Administration (SBA), pursuant to section 8(a) of the Small Business Act, 15 U.S.C. § 637(a), accepted a requirement for design and installation of a virtual fence on behalf of Tech Projects (gov't mot., ex. G-1 ). 2. In his letter to White Sands, the specialist stated that SBA's "preliminary analysis indicates that this requirement is suitable for 8(a) contracting, and that TECH PROJECTS, LLC has the requisite capabilities to ... perform the work" (gov't mot., ex. G-1). 3. By letter to SBA dated 8 September 2008, White Sands advised of its decision "to withdraw the Virtual Fence requirement from Tech Projects" based upon "difficulties in getting detailed information from the contractor in a timely manner" (gov't mot., ex. G-2 at 1). B. Target Control Services Requirement 4. By letter to White Sands dated 23 May 2008, a lead business development specialist at SBA, pursuant to section 8(a), accepted a requirement for the operation, maintenance, and other support of Target Control Services on behalf of Tech Projects (gov't mot., ex. G-3). 5. By email dated 26 September 2008 to SBA, the contracting officer advised that the requirement "has been cancelled in its entirety and will be performed in-house by government personnel" (gov't mot., ex. G-4 ). C. Claim and Appeal 6. By letter to the contracting officer dated 10 December 2008, Tech Projects submitted a certified claim aggregating $185,346.40 for both the Virtual Fence and the Target Control System requirements (R4, tab 27). 7. Following multiple difficulties in auditing the claim, as well as an initial decision in 2009, and a reconsideration request in 2011, the contracting officer rendered his final decision by date of 22 March 2013. The contracting officer determined that Tech Projects was entitled to reimbursement for a portion of its initial claim and denied a supplemental claim in its entirety. (R4, tab 50 at 10) In his decision, the contracting officer also asserted that "[t]he government is in agreement with Tech Projects that there is an implied contract when SBA acceptance occurs" (id. at 3). The contracting officer further stated that "[i]t is understood that there was never a formal written contract but the SBA Acceptance Letter and actions by the government could be reasonably perceived by Tech Projects (or any other 8 (a) contractor) to constitute an implied contract" (id. at 4). 8. By letter to the Recorder dated 20 June 2013, Tech Projects brought this appeal. In its notice of appeal, which is in the nature of a complaint, Tech Projects alleges that the contracting officer "properly recognized that there was a contract in fact" regarding the Target Control System requirement (Notice of Appeal at 2).