Dispute Over Existence of Contract Does Not Deprive Board of Jurisdiction to Hear Appeal; ASBCA No. 61505, Appeal of Interaction Research Institute Inc.

Government’s motion to dismiss an appeal for lack of jurisdiction is denied, where the appellant made a non-frivolous allegation that an implied-in-fact contract existed between it and the government, even though the agency was unable to located the documents used to order the services that remained unpaid. The board explained that the dispute over the existence of a contract went to the merits of the appeal and did not necessarily deprive the board of jurisdiction.

The Navy moved to dismiss an appeal for lack of jurisdiction, arguing that there was no express or implied contract between the agency and Interaction Research Institute Inc.

IRI submitted a document labeled as a claim for unpaid training services allegedly provided to I Marine Expeditionary Force. The letter stated the appellant was paid for seven instances of training services but not for four additional instances. Under standard operating procedures, any requirement under $25,000 would be submitted and approved on an SF-182 (Certification, Authorization and Validation of Training) contract vehicle and paid with a government purchase card. Any requirement valued more than $25,000 was required to be submitted on a purchase request for approval and award of a contract.

The agency confirmed that seven training services were ordered and properly paid using SF-182s. While the agency could not locate any SF-182s or contracts for the allege unpaid training services, it did confirm that some of the services did occur. The CO ratified some of the unpaid training services as unauthorized commitments. On January 5, 2016, the appellant submitted a request for the remaining unpaid services and requested a document stating the final disposition of the request for payment of services. The agency was unable to validate the request and notified IFI that no additional payments would be made. This appeal followed.

The government moved to dismiss for lack of jurisdiction, arguing that no contract existed between the parties. The agency noted that the CO purposefully did not style its as a contracting officer’s final decision because it did not recognize appellant’s request as a valid claim.

In response, the appellant argued that the services rendered were executed to fulfill an implied contract at the minimum, and quite possibly an express contract that was lost by the agency during the long delays to process the SF-l82s.

The board noted that IFI bore the burden of establishing jurisdiction, but only had to reasonably allege the existence of the contract. The appellant did not need to prove the existence of either an express or implied-in-fact contract to establish the board’s jurisdiction to consider the claim.

IFI consistently asserted that it was contracted to perform training services for I MEF via SF-182 contract vehicles. The board found that the SF-182 is not an express contract; rather, it is used to document a training, education and professional development event from a non-government source. However, the board explained that this characterization was not fatal to IFI’s allegation of the existence of a contract, however, it could have an implied-in-fact contract with the government, even without an express document. Moreover, under appropriate circumstances, “implied actual authority” may be used to bind the government in contract.

The government maintained there was no implied-in-fact contract because after multiple administrative investigations it could not locate any of the alleged SF- l 82s. Without this documentation, the government argued that any assertions made to IFI by unit-level personnel that these alleged trainings were authorized via SF-182s would amount to unauthorized commitments.

The board explained that whether the SF-182s and therefore an implied-in-fact contracts existed was a matter for consideration on the merits of the appeal and did not affect the board’s jurisdiction. The board concluded that the appellant had non-frivolously asserted the existence of an implied-in-fact contract based on the alleged purchase of training services via the SF-182s.

The government noted that the appellant’s reply brief described the unpaid services as unauthorized commitments and indicated the missing SF-182s would never be located. According to the government, IFI acknowledged that no documentation exists to support the allegation of an implied-in-fact contract. However, the court declined to read this statement in the same manner, noting that IFI is represented pro se.

The court did not believe the appellant intended to argue that the training services provided were both unauthorized commitments and implied-in-fact contracts. First, by definition, an unauthorized commitment cannot be an implied-in-fact contract because a contract requires proof of actual authority to bind the government. More importantly, acknowledging that the training services were unauthorized commitments would divest the board of jurisdiction over this appeal. The board did not believe IFI intended to argue against jurisdiction, but rather suggested that the SF-182s were either lost or destroyed over time.

Accordingly, the board denied the government’s motion to dismiss.

Interaction Research Institute Inc. is represented by Barba B. Affourtit, Vice President. The government is represented by Craig D. Jensen, Navy Chief Trial Attorney, and by John W. Torresala, Erin L. Hernandez, and Russell R. Henry, Trial Attorneys.