Appeal Filed Solely Under the Name of Prime Contractor Did Not Allege Different Operative Facts Than Underlying Claim Filed Under Names of Prime and Subcontractor; TKC Global Solutions, LLC v Department of the Interior, CBCA 6742

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Government’s motion to dismiss claim for lack of jurisdiction is denied. The government contended the board lacked jurisdiction because the appeal was brought under different names than the underlying claim. Specifically, the appeal was brought in the name of the prime contractor while the claim had been submitted under the names of the prime and subcontractor. The board found that regardless of the parties in the appeal, the appeal alleged the same operative facts as the claim. As a result, the board had jurisdiction.

TKC Global Solutions, LLC had a contract with the Bureau of Indian Affairs (BIA) under which it leased equipment to the agency. The contract provided that 90 days prior to the end of the contract term, BIA had to notify TKC whether it would renew the contract, purchase the equipment from TKC, or return the equipment to TKC. The BIA failed to give notice as required under the contract and kept the equipment after the contract ended.

TKC filed a claim with the contracting officer, seeking damages for the holdover period in which the agency kept the equipment. TKC’s claim was submitted under the names of TKC, ePlus Government, Inc., a subcontractor that provided some the equipment lease to BIA, and a bank that was the assignee of ePlus. TKC notified the BIA that it was sponsoring the claim on behalf of ePlus.

The BIA denied TKC’s claim. TKC appealed to the CBCA. TKC’s appeal, however, was only brought under the name of TKC; ePlus was not included. The government moved to dismiss TKC’s appeal, arguing that because appeal was not brought in ePlus’s name, it alleged different operative facts than the claim and thus the CBCA lacked jurisdiction.

An appeal brought under the Contract Disputes Act must be based on the same claim previously presented and denied by the contracting officer. The appeal must arise from the same operative facts and seek essentially the same relief.

Here, the facts alleged in the notice of appeal and complaint were the same facts presented in the claim. In both instances, TKC asserted that BIA breached the contract by failing to return the equipment. The board found no distinction between the claim presented and denied by the contracting officer and the action on appeal. The fact that TKC brought the claim under three names but later filed the notice of appeal under one did not change the operative facts of the complaint. Although the claim had requested that payment be made to ePlus’s assignee, the thrust of the claim always focused on whether the BIA had breached the contract.

TKC is represented by C. Peter Dungan and Roger V. Abbott of Miles & Stockbridge P.C. The government is represented by Brian A. Quint and Murphy H. Peterson of the Department of the Interior.

CBCA - TKC Global