In most disputes before the Armed Services Board of Contract Appeals (“ASBCA”), there is a basic assumption that no one ever thinks about — the existence of a contract. And why would you think about it? After all, it’s hard to imagine a Board of Contract Appeals without the Contract. That’s like Whole Foods without the food. General Motors without the motors. Coca-Cola without the, well, Coca-Cola! The two just go together without ever having to think about it. Until now.
The Appeal of Black Tiger Company, ASBCA No. 59819, arose out of Black Tiger’s allegation that it had not been paid for equipment it provided to the Army under Contract No. W91GXE-11-P-0083. The Government filed a motion to dismiss the appeal due to one major problem with Contract No. W91GXE-11-P-0083 — it does not exist. An Army Contracting Officer averred “that he had searched various government contract retrieval and archival systems but had been unable to find any information related to the contract documents submitted by appellant.” The Government therefore contended that the ASBCA lacked jurisdiction over the appeal under the Contract Disputes Act (“CDA”).
The CDA describes the burden an appellant must satisfy to establish ASBCA’s jurisdiction: “The Armed Services Board has jurisdiction to decide any appeal from a decision of a contracting officer of the…Department of the Army…relative to a contract made by that department or agency.” This burden does not require that the appellant prove a contract actually exists, but rather, under the CDA, an appellant “need only allege the existence of a contract to establish the Board’s jurisdiction.”
Here, Black Tiger filed a properly certified claim on February 3, 2015. And, Black Tiger’s notice of appeal included a contract number; an SF 1449 that identified appellant on the first page as the contractor; and a document appellant asserted was an invoice for the equipment provided under the contract. As a result, ASBCA denied the Government’s motion to dismiss, holding that the question of whether a valid contract exists goes to the merits of the appeal and does not affect ASBCA’s jurisdiction over the appeal. So while a contract will be required to get relief, the contract is not required to start the ball rolling.