ASBCA 58366

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Protecting the Homeland Innovations, LLC ) ASBCA No. 58366 ) Under Contract No. FQ-12187 ) APPEARANCE FOR THE APPELLANT: Peter F. Carr II, Esq. Eckert Seamans Cherin & Mellott, LLC Boston, MA APPEARANCES FOR THE AUTHORITY: Kathryn Pett, Esq. General Counsel Bruce P. Heppen, Esq. Deputy General Counsel Donald A. Laffert, Esq. Associate General Counsel Washington Metropolitan Area Transit Authority OPINION BY ADMINISTRATIVE JUDGE HARTMAN ON RESPONDENT'S MOTIONS TO DISMISS AND TO QUASH Respondent, the Washington Metropolitan Area Transit Authority (WMATA), moves to dismiss Counts III ("Quantum Meruit/Unjust Enrichment") and IV ("Promissory Estoppel") of the complaint filed by appellant, Protecting the Homeland Innovations, LLC (PHI). WMATA asserts we lack jurisdiction to entertain those counts because they seek recovery, respectively, based upon theories of unjust enrichment and promissory estoppel when it is immune from "quasi-contractual claims." (Motion to Dismiss at 1-2) PHI contends Count III is based upon a theory of "implied contract," WMATA has waived its sovereign immunity with respect to its "contracts," and we therefore possess jurisdiction to entertain Count III. PHI, however, has not filed any response to WMATA's motion to dismiss Count IV. (Appellant's Opposition to Respondent's Motion to Dismiss Count Ill ofthe Complaint at 1-4) WMATA also moves to quash a request for admissions served by PHI. WMATA contends: that this appeal is governed by the "ASBCA's Rules for cases not under the Contracts Disputes Act" (CDA), approved 15 July 1963, and revised 1 May 1969, and 1 September 1973; those rules require a party to apply to the Board for permission to serve a request for admission of specified facts; and such applications shall be reviewed and approved only to the extent and on such terms as the Board in its discretion considers to be consistent with the objective of securing just and inexpensive determination of appeals without unnecessary delay (Reply to Appellant's Opposition to WMATA's Motion to Quash at 1-2). PHI responds it fails to understand how an unpublished Memorandum ofUnderstanding between the Board and WMATA controls and precludes conduct of routine discovery when (a) the Board has published rules of procedure addressing discovery consistent with modem trial practice, (b) a recent Board decision held there was no distinction between WMAT A and CDA contract claims, and (c) its request for admissions will assist in narrowing the issues in dispute, thereby facilitating prompt resolution ofthe appeal (Appellant's Sur-Reply to WMATA's Opposition to Motion to Quash at 1-2). STATEMENT OF FACTS FOR PURPOSES OF THE MOTIONS WMATA is an interstate compact agency, and an agency and instrumentality of the District of Columbia, State ofMaryland, and Commonwealth of Virginia (Complaint (Compl.) ,-r 2, Answer ,-r 2). WMATA operates public transit systems that provide local and regional transit service to the Washington, DC metropolitan area (Compl. ,-r 5, Answer ,-r 5). On 7 May 2012, WMATA issued Request for Proposal No. RFP-FQ-12187/RK (RFP) to provide "Terrorism Recognition Training" services for the Metro Transit Police Department's sworn personnel (Compl. ,-r 9, Answer ,-r 9). Two days later, on 9 May 2012, PHI submitted a proposal in response to the RFP in the amount of$1,117,500, which included a fee or profit of$432,914, and WMATA awarded service Contract No. FQ- 12187 to PHI on 23 May 2012 (Compl. ,-r,-r 17, 18, 19, 27, Answer,-r,-r 17, 18, 19, 27). PHI commenced performance under the contract and taught its first class to WMATA personnel on 29 May 2012. PHI provided additional training to WMATA, submitted invoices for all training provided, and was paid approximately $514,973 by WMAT A. PHI provided all services WMAT A requested by the 30 June 2012 deadline and granted WMAT A a license to use its proprietary training program materials and techniques, fully completing its scope of work under the contract. (Compl.