ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of - )
)
Siemens Government Technologies, Inc. ) ASBCA No. 62806
)
Under Contract Nos. DE-AM36-09GO29041 )
NOO No. W912DY-15-R-ES17 )
APPEARANCES FOR THE APPELLANT: Andy Liu, Esq.
Robert S. Nichols, Esq.
Sam Van Kopp, Esq.
Haaleh Katouzian, Esq.
Nichols Liu LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
Karen L. King Vanek, Esq.
Engineer Trial Attorney
U.S. Army Engineer District, Huntsville
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE GOVERNMENT’S
MOTION TO DISMISS FOR LACK OF JURISDICTION
Appellant, Siemens Government Technologies, Inc. (SGT), requests $2,889,715 in
what it says are breach of contract damages, alleging both a written contract and a
contract implied-in-fact with the U.S. Army Corps of Engineers (compl. at 3 ¶ 4, 13 ¶ 55,
14). The Army Corps of Engineers moves to dismiss the appeal for lack of jurisdiction,
saying it never had a contract with SGT (gov’t mot. at 6).
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
Among SGT’s allegations are the following:
The United States Army Engineering and Support Center
(“CEHNC”) solicited an indefinite-delivery, indefinite-
quantity (“IDIQ”) Energy Savings Performance Contract
(“ESPC”) to improve the energy efficiency of the United
States Air Force’s Spangdahlem Air Base (SAB) located in
Rheinland-Pfalz, Germany. CEHNC selected Siemens
Government Technologies, Inc. (“SGT”) to produce plans for
the ESPC project at SAB, to audit SAB’s energy efficiencies,
and to assess whether selected Energy Conservation Measures
(“ECMs”) would constitute a viable ESPC at SAB. Over the
course of four years, SGT did this work at the United States
Government’s (“Government’s”) direction, incurring
$2,889,715 in costs in the process.
Construction projects at NATO facilities in Germany may be
subject to an administrative agreement known as
Auftragsbautengrundsatze 1975 (“ABG-75”), a component of
the Status of Forces Agreement that allows NATO troops to
operate on German soil. Under Article 30 of ABG-75, the
Government is responsible for coordinating U.S. construction
activity with the German government. Thus, CEHNC was
responsible for determining, in consultation with the
German government, whether ABG-75 applied to this ESPC
contract.
...
However, in this case, the U.S. government 1) failed to timely
inform SGT that ABG-75 would apply to this ESPC contract;
2) failed to timely decide that it would not request a waiver of
ABG-75, as authorized under the agreement; and
3) unreasonably decided not to request a waiver of ABG-
75.
...
SGT now seeks to recover the value of the developmental
work it performed for the Government’s benefit and at their
direction. The $2,889,715 in costs claimed by SGT are a
direct result of the Government’s breach of the covenant of
good faith and fair dealing, its failure to cooperate and share
superior knowledge regarding ABG-75, and the quantum
meruit benefiting the Government.
(Compl. at 1-2) (emphases added)
The contracting officer’s final decision from which SGT appeals states:
This decision is in reference to the contract awarded to
Siemens Government Technologies, Inc. (Siemens) by the
Department of Energy (DOE) for Energy Savings
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Performance Contracts, No. DE-AM 36-09GO29041.
Siemens is one of the energy contractors within the DOE set
of Multiple Award Task Order Contracts for ESPC work.
Siemens was down-selected under the Notice of Opportunity
No. W912DY-15-R-ES17 issued on 14 October 2015 to the
DOE MATOC holders to develop a preliminary assessment
(PA) and an investment grade audit (IGA) for Spangdalhem
AFB in Germany. Siemens was selected as the Energy
Savings Contractor (ESCO) under that NOO. No task order
was awarded to Siemens at the end of that process.
(R4, tab 3 at 14)
DECISION
Pursuant to 41 U.S.C. § 7105(e)(1)(A) (emphasis added), the Board “has
jurisdiction to decide any appeal from a decision of a contracting officer of the
Department of Defense, the Department of the Army, the Department of the Navy, the
Department of the Air Force, or the National Aeronautics and Space Administration
relative to a contract made by that department or agency.” Jurisdiction under this
provision requires no more than a non-frivolous allegation of a contract with the
government. Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1353 (Fed. Cir. 2011).
Thus, to establish Board jurisdiction under this provision, an appellant need only allege
the existence of a contract. Elizabeth Constr. Co., ASBCA No. 60723, 17-1 BCA
¶ 36,839 at 179,519. This bar is low. Premysler v. United States, 135 Fed. Cl. 657, 660
(2018).
Based upon the record material quoted above, we conclude that SGT has set forth
a non-frivolous allegation of a contract with the government, triggering our jurisdiction
under 41 U.S.C. § 7105(e)(1)(A). Cf. Elizabeth Constr. Co., 17-1 BCA ¶ 36,839
at 179,519. (granting motion to dismiss for lack of jurisdiction; appellant “[did] not allege
that a contract existed between it and the government”)”; Tele-Consultants, Inc., ASBCA
No. 58129, 13 BCA ¶ 35,234 at 172,994 (“Given [appellant’s] contention here that it did
indeed directly enter into an implied-in-fact contract with the government respecting the
services at issue, we conclude we possess jurisdiction over this claim”). Whether SGT
had a contract with the Corps of Engineers is a merits question for another day. See
Engage Learning, 660 F.3d at 1355.
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CONCLUSION
The government’s motion to dismiss for lack of jurisdiction is denied.
Dated: September 15, 2021
TIMOTHY P. MCILMAIL
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
RICHARD SHACKELFORD MARK A. MELNICK
Administrative Judge Administrative Judge
Acting Chairman Acting Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 62806, Appeal of Siemens
Government Technologies, Inc., rendered in conformance with the Board’s Charter.
Dated: September 16, 2021
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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