Opinion

Council for Tribal Employment Rights v. United States

112 Fed. Cl. 231
2013 U.S. Claims LEXIS 1174
2013 WL 4572625

Court: United States Court of Federal Claims
Filed: Aug 27, 2013
Status: Published
Author: Lettow
On the bench: Lettow
Cited by: 15 cases
Authority: More cited than 51.8%

The opinion

In the United States Court of Federal Claims

No. 12-326C

(Filed: August 27, 2013)

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) Claim of breach of a contract entered

COUNCIL FOR TRIBAL ) under the Indian Self-Determination and

EMPLOYMENT RIGHTS, ) Education Assistance Act of 1975, 25

) U.S.C. §§ 450-458ddd-2; applicability of

Plaintiff, ) the Indian Employment, Training and

) Related Services Demonstration Act of

v. ) 1992; 25 U.S.C. §§ 3401-3417; Contract

) Disputes Act, now codified as 41 U.S.C.

UNITED STATES, ) §§ 7101-7109; contracting officer’s

) authority; third-party beneficiary rights;

Defendant. ) recovery in quantum meruit

)

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Daniel S. Press, VanNess Feldman, LLP, Washington, D.C. for plaintiff. With him on

the briefs was Sean P. Jamieson, VanNess Feldman, LLP, Washington, D.C.

Joseph E. Ashman, Trial Attorney, Commercial Litigation Branch, Civil Division, United

States Department of Justice, Washington, D.C., for defendant. With him on the briefs were

Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Donald

F. Kinner, Assistant Director, Commercial Litigation Branch, Civil Division, United States

Department of Justice, Washington, D.C. Of counsel were Charles Wallace and William B.

Blake, Branch of Acquisitions and Intellectual Property, Solicitor’s Office – Division of General

Law, United States Department of the Interior, Washington, D.C.

OPINION AND ORDER1

LETTOW, Judge.

Council for Tribal Employment Rights (“Council”), a national intertribal nonprofit

organization which represents the employment interests of certain Indian tribes, seeks $500,000

in damages for the alleged breach of two agreements which involved the Council, the Office of

Indian Energy and Economic Development (“the Office”), a component of the Bureau of Indian

Affairs (“the Bureau”), U.S. Department of the Interior, and the Spirit Lake Tribe (“Spirit Lake”

or “the Tribe”), a federally recognized Indian tribe. Both agreements were executed as

A protective order was entered in this case to shield from disclosure records subject to

the Privacy Act, 5 U.S.C. § 552a. Nothing in this opinion and order sets out information subject

to that Act, and consequently the decision is being issued publicly as an initial matter.

amendments to an existing contract between the Office and Spirit Lake. The first, Amendment

2, involved the provision of funds to support a Native Construction Careers Initiative (“NCCI”)

commercial construction training program, and called upon the Council to conduct the training

program. The second, Amendment 6, allocated funds to support training projects approved by

the Federal Highway Administration (“FHWA”). The statement of work for that Amendment

referenced an FHWA training program agreement which contemplated that the Council would

provide training to develop certain certification programs for road construction activities.

Several years after the execution of Amendments 2 and 6, the Council submitted to the

Office a certified claim for $200,000 for an alleged breach of contract relating to Amendment 2,

as well as a certified claim for $300,000 for an alleged breach of contract arising from

Amendment 6. See Compl. ¶ 5; Pl.’s Resp. to Order of Aug. 15, 2013, Attach. A (Certified

Claim (Feb. 21, 2012)), Attach. B (Certified Claim (Mar. 13, 2012)), ECF No. 62.2 The Office

did not respond to Council’s claims. See Def.’s Mot. to Dismiss, or in the Alternative, Mot. for

Summary Judgment (“Def.’s Mot.”) at 10, ECF No. 25. The Council then filed a complaint in

this court on May 23, 2012. The government filed a motion to dismiss, or in the alternative,

motion for summary judgment on December 11, 2012, and Council filed a motion for partial

summary judgment as to its third-party beneficiary status in relation to Amendments 2 and 6 on

April 16, 2013. The motions have been briefed, and a hearing was held on June 4, 2013.

Supplemental submissions were filed on June 7 and 13, 2013, and on August 19, 2013.

STATUTORY FRAMEWORK

A. The Indian Self-Determination and Education Assistance Act of 1975

In 1975, Congress passed the Indian Self-Determination and Education Assistance Act of

1975, Pub. L. 93-638, 88 Stat. 2203 (codified at 25 U.S.C. §§ 450-458ddd-2) (“ISDA” or the

“638 Act”). ISDA was enacted to “promote tribal autonomy by permitting Indian tribes to

manage federally funded services that were previously administered by the federal government.”

Arctic Slope Native Assoc., Ltd. v. Sebelius, 583 F.3d 785, 788 (Fed. Cir. 2009); see also 25

U.S.C. § 450a. ISDA reiterates the government’s:

commitment to the maintenance of the [f]ederal [g]overnment’s unique and

continuing relationship with, and responsibility to, individual Indian tribes and to

the Indian people as a whole through the establishment of a meaningful Indian

self-determination policy which will permit an orderly transition from the

[f]ederal domination of programs for, and services to, Indians to effective and

meaningful participation by the Indian people in the planning, conduct, and

administration of those programs and services.

25 U.S.C. § 450a(b).

The court had by order requested that the Council provide copies of the claims the

Council had previously submitted to the Office. See Order of August 15, 2013, ECF No. 61.

The Council promptly responded.

Pertinent to this litigation, ISDA confers upon the Secretary of the Interior the authority

to “enter into a self-determination contract or contracts with a tribal organization to plan,

conduct, and administer programs or portions thereof.” 25 U.S.C. § 450f(a)(1). A tribal

organization is defined as

the recognized governing body of any Indian tribe; any legally established

organization of Indians which is controlled, sanctioned, or chartered by such

governing body or which is democratically elected by the adult members of the

Indian community to be served by such organization and which includes the

maximum participation of Indians in all phases of its activities: Provided, [t]hat

in any case where a contract is let or grant made to an organization to perform

services benefiting more than one Indian tribe, the approval of each such Indian

tribe shall be a prerequisite to the letting or making of such contract or grant.

25 U.S.C. § 450b(l) (emphasis added).

ISDA sets forth a model agreement that must be contained within, or incorporated by

reference in, any self-determination contract entered into pursuant to 25 U.S.C. § 450f(a)(1). See

25 U.S.C. § 450l(a), (c); see also Thompson v. Cherokee Nation of Okla., 334 F.3d 1075, 1082

(Fed. Cir. 2003) (“The ISDA requires that every self-determination contract incorporate the

terms of a model agreement, which is provided by 25 U.S.C. §§ 450l(c).”).

Additionally, amendments to ISDA in 1988 made the Contract Disputes Act (“CDA”),

now codified at 41 U.S.C. §§ 7101-7109, applicable to disputes concerning self-determination

contracts. See 5 U.S.C. § 450m-1(d); see also Arctic Slope, 583 F.3d at 789.3

B. Indian Employment, Training and Related Services Demonstration Act of 1992

In 1992, Congress passed the Indian Employment, Training and Related Services

Demonstration Act of 1992, Pub. L. 102-477, 106 Stat. 2303 (codified at 25 U.S.C. ch. 36,

§§ 3401-3417) (“the 477 Act”). The purpose of the 477 Act was “to demonstrate how Indian

tribal governments can integrate the employment, training and related services they provide in

order to improve the effectiveness of those services, reduce joblessness in Indian communities

and serve tribally-determined goals consistent with the policy of self-determination.” 25 U.S.C.

§ 3401. In essence, the 477 Act was designed to simplify and streamline the fund disbursal and

reporting processes. The law instructs that the Secretary of the Interior

shall, upon the receipt of a plan acceptable to the Secretary of the Interior

submitted by an Indian tribal government, authorize the tribal government to

coordinate, in accordance with such plan, its federally funded employment,

training, and related services programs in a manner that integrates the program

As amended, Subsection 450m-1(d) provides that “Chapter 71 of Title 41 shall apply to

self-determination contracts, except that all administrative appeals relating to such contracts shall

be heard by the Interior Board of Contract Appeals established pursuant to section 8 of such

Act[, 41 U.S.C. § 7105].” 25 U.S.C. § 450m-1(d).

services involved into a single, coordinated, comprehensive program and reduces

administrative costs by consolidating administrative functions.

25 U.S.C. § 3403. The programs authorized under this Chapter are often referred to as “477

programs.” Def.’s Mot. at 5. The 477 Act does not authorize the distribution of funds; rather,

funding is obtained under other applicable statutes. See, e.g., 25 U.S.C. § 3408(a) (“The plan

submitted by a tribal government may involve the expenditure of funds . . . if such expenditures

are . . . consistent with the purposes specifically applicable to Indian programs in the statute

under which the funds are authorized.”); Office of Management and Budget, Compliance

Supplement, Circular No. A-133 (June 2012), 2012 WL 6764077, at *735 (“Pub. L. No. 102-477

refers to the Indian Employment, Training and Related Services Demonstration Act of 1992, the

purpose of which is to provide for the integration of employment, training and related services to

improve the effectiveness of those services.”) (emphasis added).

BACKGROUND4

On February 17, 2009, Congress enacted the American Recovery and Reinvestment Act

of 2009 (“ARRA”), Pub. L. 111-5, 123 Stat. 115, in which, among other things, it allocated $40

million to the Bureau of Indian Affairs for the operation of Indian “workforce training programs

and the housing improvement program.” Pub. L. 111-5, 123 Stat. 115, at tit. VII. Some of these

funds were apportioned internally to the Office, a component of the Bureau. In addition, ARRA

allocated $550 million to FHWA “for investments in transportation at Indian reservations and

[f]ederal lands.” Id. at tit. XII.

On June 1, 2009, the Office wrote to Spirit Lake and stated that funds had been allocated

to the Tribe under the provisions of ARRA. See Def.’s Mot. App. at A40 (Letter from Robert

Middleton, Director of the Office, to Myra Pearson, chairperson of Spirit Lake). The funds

would be administered through Contract No. GTK00T109AR (“the ARRA contract”), see Def.’s

Mot. App. at A39 (Letter from Middleton to Pearson (June 1, 2009)), a 638 contract between the

Office and the Tribe, see id. at A41 (ARRA Contract Agreement). The ARRA contract was

awarded on June 8, 2009. Def.’s Mot. App. at A80. The ARRA contract’s purpose was to

“provide Indian [e]mployment, [t]raining, and [r]elated [s]ervices in accordance with the terms,

provisions[,] and conditions of this contract and funding agreement; and provisions of [ARRA].”

Def.’s Mot. App. at A43 (638 Act, Section 108 Model Agreement for the ARRA Contract).

A. Amendment 2 to the ARRA Contract

On August 5, 2009, the Office issued Amendment 2 to the ARRA contract. Def.’s Mot.

App. at A83 (Amendment 2), A110 (ARRA Contract Amended Funding Agreement).

Amendment 2 identified the Office and Spirit Lake as the parties to the ARRA contract, id. at

A83, and noted that the “Contractor, Recipient, Tribe (ARRA related)” was Spirit Lake, id. at

A88 (ARRA Contract Amended Funding Agreement). Amendment 2 was signed by Ms. Lynn

The recitations that follow do not constitute findings of fact by the court. Instead, the

recitals are taken from the parties’ filings and either are undisputed or alleged and assumed to be

true for purposes of the pending motions, except where a factual controversy is explicitly noted.

Forcia, an awarding official from the Office, and Ms. Myra Pearson, chairperson of Spirit Lake.

Id. at A83 (Amendment 2). Amendment 2 allocated ARRA funds for a Solar Heat Panel

Training and Installation Project and the Native Construction Careers Initiative (“NCCI”)

Project, a commercial construction training program. Id. at A94 (ARRA Contract Amended

Funding Agreement). Separate statements of work for the two projects were attached. See id. at

A111-13 (Solar Heat Panel Installation Training Project Statement of Work), A114-24 (NCCI

Project Statement of Work); see also id. at A94 (noting that statements of work for the two

projects were attached to the amended funding agreement statement of work). The statement of

work for the NCCI aspect noted that the Council “has nine (9) proposed projects called the

Native Construction Careers Initiative (NCCI) to work with tribes nationwide to provide hands-

on commercial construction training. [Spirit Lake] is well positioned to assist [the Council] to

conduct these activities, to ensure contract compliance, issue quarterly payments, to collect

quarterly data reports[,] including program and financial[,] from [the Council,] and related tasks.

. . . Therefore, [Spirit Lake] proposes to enter into a contract with [the Council] to conduct the

[NCCI].” Id. at A114. The statement of work identified eight Indian tribes and one Alaska

Native Village which would be involved in the arrangement between the Council and Spirit

Lake. See id. The statement of work also described the types of training to be afforded to each

tribe or native village. Id. at A115-119. Additionally, it set forth the responsibilities of both the

Council and Spirit Lake. The Council’s responsibilities included performance of the training

projects for each of nine tribes and villages and completion of various ARRA reporting

requirements. Id. at A119-21. Spirit Lake’s responsibilities included “administer[ing] the NCCI

project to ensure that the goals of the project are being met, including on-site program

monitoring as needed,” “transfer[ring ARRA] funds to [the Council],” and “monitor[ing] the

progress of the [Council’s] activities and provid[ing] quarterly reports to the Public Law 102-477

Tribal Work Group.” Id. at A121. According to the statement of work, the NCCI project was to

be funded by a $950,000 “award under [ARRA].” Id. The NCCI statement of work included a

page for representatives from the Office, Council, and Spirit Lake to sign and acknowledge their

acceptance of the terms. See id. at A123. Ms. Forcia, the awarding official, signed on behalf of

the Office on August 5, 2009. Id. Representatives from Spirit Lake and the Council signed to

acknowledge their acceptance of the terms on August 11 and 12, 2009, respectively. Id. at A124.

B. Interagency Agreement between the Office and FHWA

On September 16, 2009, the Office and the FHWA entered into an interangency

agreement, Def.’s Mot. App. at A126 (Office-FHWA Interagency Agreement), which allowed

the Office to use $1.5 million of the funds allocated to FHWA by ARRA to “provide support to

disadvantaged tribes and tribal members to increase their participation in the highway

construction workforce,” id. at A127. The statement of work that accompanied the interagency

agreement noted that the Office in the past had collaborated with the Council to “establish[]

partnerships with prime contractors and develop[] matchmaking opportunities to mentor Indian

firms and provide supportive services to increase the American Indian Highway Construction

business quotes/bids on highway construction projects.” Id. at A130 (Office-FHWA Interagency

Agreement Statement of Work). The statement of work also lists the Council as a “key partner,”

id. at A136, A139, and notes that $500,000 of the $1.5 million in available funds would be

allocated to the Council to “provide funding for the [NCCI] that will be conducting on-site

apprenticeship training programs to at least 6 tribes,” id. at A143.

C. Amendment 6 to the ARRA Contract

On June 11, 2010, the Office issued Amendment 6 to Spirit Lake’s ARRA contract. See

Def.’s Mot. App. at A150 (Amendment 6); see also id. at A148 (Letter from Middleton to

Pearson (June 11, 2010)). Amendment 6 identified the Office and Spirit Lake as the parties to

the ARRA contract, id. at A150, and noted that the “Contractor, Recipient, Tribe (ARRA

related)” was Spirit Lake, id. at A155 (ARRA Contract Second Amended Funding Agreement).

Amendment 6 was signed by Ms. Forcia of the Office, and Ms. Pearson of Spirit Lake. Id. at

A150. The statement of work for Amendment 6 noted that the funds were to be used in part to

support the “Department of Transportation-Federal Highway Administration’s approved training

projects,” for which a separate statement of work was attached. Id. at A161 (ARRA Contract

Second Amended Funding Agreement Statement of Work). That statement of work, entitled

“Council for Tribal Employment Rights (CTER) Statement of Work for FHWA Project”

(“FHWA Project Statement of Work”), noted that the purpose of Amendment 6 was “a

modification to the current ARRA contract between [Spirit Lake, Council,] and adding the

National Indian Ironworkers training center that is an ARRA project under an interagency

agreement that is between [FHWA] and [t]he Department of the Interior/Indian Affairs.” Id. at

A187 (FHWA Project Statement of Work). The statement of work allocated $500,000 to the

Council to “develop Indian preference certification programs for road construction activity” to

six Indian tribes. Id. The statement of work asserted that Spirit Lake was “well positioned” to

assist the Council in conducting its activities, id., and made the following representation:

“Therefore, [Spirit Lake] proposes to enter into a contract with [the Council] and the National

Indian Ironworkers Training Program to administer the [FHWA-Office] Training Initiative,” id.

at A188.

The statement of work for the FHWA project also assigned reporting requirements to the

Council. Def.’s Mot. App. at A188-89. Spirit Lake’s duties included “administer[ing] the

[Office-FHWA] project to ensure that the goals of the project are being met” and transferring

funds to the Council and the National Indian Ironworkers. Id. at A190. The statement of work

for the FHWA project was signed by Ms. Forcia for the Office on June 11, 2010, by Ms. Pearson

for Spirit Lake on June 28, 2010, and by Mr. Conrad Edwards, president of the Council, on June

21, 2010. Id. at A192-93. It appears to include handwritten changes made by Mr. Edwards on

June 21, which were initialed and accepted by Ms. Forcia on July 6, 2010. See id. at A188,

A190.

D. The Awarding Official’s Authority

At the times Ms. Forcia, the government awarding official, signed Amendments 2 and 6,

she was designated as a “Level I Awarding Official” for the Office. See Def.’s Mot. App. at A1-

2 (Forcia Certification). Such designations are supervised by the Bureau, see id. at A1, which

also publishes the “Indian Self-Determination Awarding Official Certification System (AOCS)

Handbook” to give context to, and details about, the designation, id. at A3-38 (AOCS

Handbook). The handbook is available to the public online.5 The handbook defines “Awarding

Official” to mean a contracting officer possessing the authority to issue self-determination

contracts and grants under ISDA:

“Awarding Official” means Contracting Officer and shall be any person in the

self-determination career field, who has been certified under the Awarding

Official Certification System as an Awarding Official, other than an Approving

Official, who has the delegated authority to award, modify, and administer all

self-determination contracts as defined in the 25 U.S.C.A. Section 450b(j),

including where applicable construction contracts as defined in 25 U.S.C.A.

Section 450b(m), as amended, and shall make decisions and issue findings and

determinations with respect thereto. The awarding official shall also have the

authority to award, modify[,] and administer self-determination grants.

Id. at A8. The handbook further notes that a “Level I Awarding Official” has authority that

“covers all self-determination non-construction contracts, and grants.” Id. at A11 (emphasis

added). Ms. Forcia’s authority, however, was encumbered with an additional limitation not

expressly contemplated by the Bureau’s handbook. According to a letter from the director of the

Bureau approving Ms. Forcia as a Level I Awarding Official, Ms. Forcia was “conditionally

approved . . . as a Level I Awarding Official to award only Pub. L. 102-477 grants.” Id. at A1;

see also id. at A2.

E. Alleged Breach

In September 2011, Mr. Edwards, president of the Council, sent a letter to the Assistant

Secretary for Indian Affairs at the Department of the Interior, stating that he had provided a letter

to the assistant secretary almost a year earlier, in October 2010, “describing how two employees

of [the Office] were engaged in inappropriate behavior designed to block [the Council] from

successfully implementing the NCCI program.” Def.’s Mot. App. at A201 (Letter from Edwards

to The Hon. Larry Echo Hawk, Assistant Secretary, Indian Affairs, Department of the Interior

(Sept. 14, 2011)). Mr. Edwards stated that Office employees subsequently had sent by facsimile

copies of his October 2010 letter to “every 477 job training director in the country to turn those

programs against [the Council]. One of those recipients was the director of [Spirit Lake’s] 477

program, who . . . served as administrator of [the Council’s] NCCI contract. . . . She has since

refused to take any steps to release to [the Council] the $500,000 due [the Council] under its

NCCI contracts, including funds for training programs [the Council] has already provided to

tribes in Nevada.” Id. at A202.

Four months later, on February 21, 2012, the Council submitted to Karen Atkinson,

Director of the Office, a certified claim for $200,000 related to the government’s alleged breach

of contract with respect to Amendment 2 and the NCCI program. See Pl.’s Resp. to Order of

August 15, 2013, Attach. A. On March 13, 2012, the Council submitted to Ms. Atkinson a

See Indian Self-Determination Awarding Official Certification System (AOCS)

Handbook, Bureau of Indian Affairs, http://www.bia.gov/cs/groups/xraca/documents/text/idc-

000560.pdf (last visited August 23, 2013).

second certified claim for $300,000 related to an alleged breach of contract with respect to

Amendment 6 and the FHWA project. Id., Attach. B. The Office did not respond to these

claims. Def.’s Mot. at 10. On May 23, 2012, the Council filed its complaint in this court

alleging breach of contract and requesting $500,000 in damages. See Compl. at 1.

STANDARDS FOR DECISION

Jurisdiction

Subject matter jurisdiction must be established before a case can proceed on its merits.

See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88-89 (1998). In considering a motion

to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Rules of the Court of

Federal Claims (“RCFC”), the court will ordinarily construe the allegations of the complaint

favorably to the pleader. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747

(Fed. Cir. 1988) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Air Prod. & Chems., Inc.

v. Reichhold Chems., Inc., 755 F.2d 1559, 1562 n.4 (Fed. Cir. 1985)). Nonetheless, the burden

of establishing the court’s jurisdiction rests with the party seeing to invoke it, McNutt v. General

Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936), and this burden must be satisfied by

a preponderance of the evidence, Reynolds, 846 F.2d at 748.

Motion to Dismiss for Failure to State a Claim

A complaint must be dismissed under RCFC 12(b)(6) “when the facts asserted by the

claimant do not entitle him to a legal remedy.” Lindsay v. United States, 295 F.3d 1252, 1257

(Fed. Cir. 2002). While “‘the allegations of the complaint should be construed favorably to the

pleader,’” Grayton v. United States, 92 Fed. Cl. 327, 331 (2010) (quoting Scheuer, 416 U.S. at

236), “[t]he court must also inquire whether the complaint meets the ‘plausibility standard’ . . . ,

i.e., whether it adequately states a claim and provides a ‘showing [of] any set of facts consistent

with the allegations in the complaint,’” id. at 331-32 (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 560-63 (2007)). The “[f]actual allegations must be enough to raise a right to relief

above the speculative level.” Twombly, 550 U.S. at 555. If the plaintiff has not alleged a set of

facts constituting a plausible claim to relief, the complaint will be dismissed for failure to state a

claim upon which relief can be granted. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Twombly, 550 U.S. at 570).

Motions for Summary Judgment

A grant of summary judgment is warranted when the pleadings, affidavits, and

evidentiary materials filed in a case reveal that “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” RCFC 56(a). A material fact is

one “that might affect the outcome of the suit under the governing law.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute is one that “may reasonably be

resolved in favor of either party.” Id. at 250.

The party moving for summary judgment has the burden of demonstrating the absence of

any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Accordingly, “the inferences to be drawn from the underlying facts . . . must be viewed in the

light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654,

655 (1962)). In this case, both parties have filed a motion for summary judgment. Because

cross-motions for summary judgment are pending, the court must evaluate each motion on its

own merits and “tak[e] care in each instance to draw all reasonable inferences against the party

whose motion is under consideration.” Mingus Constructors, Inc. v. United States, 812 F.2d

1387, 1391 (Fed. Cir. 1987).

To establish “that a fact cannot be or is genuinely disputed,” a party must “cite[] to

particular parts of materials in the record, including depositions, documents, electronically stored

information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or

other materials,” RCFC 56(c)(1)(A), or “show[] that the materials cited do not establish the

absence or presence of a genuine dispute, or that an adverse party cannot produce admissible

evidence to support the fact,” RCFC 56(c)(1)(B). “Where the record taken as a whole could not

lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial,’”

and summary judgment is appropriate. Matsushita, 475 U.S. at 587 (quoting First Nat’l Bank of

Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

ANALYSIS

I. Express Contract Claims

A. Tucker Act Jurisdiction

“Absent an unequivocal consent to suit, [this court] lacks authority to grant relief against

the United States.” Travelers Cas. & Sur. Co. of Am. v. United States, 103 Fed. Cl. 101, 103

(2012) (citing United States v. Testan, 424 U.S. 392, 399 (1976)). Under the Tucker Act, this

court has subject matter jurisdiction over disputes arising under the recodified Contract Disputes

Act. See 28 U.S.C. § 1491(a)(2).6 As discussed supra, the CDA applies to self-determination

contracts entered into pursuant to ISDA, except that all “administrative appeals relating to such

contracts shall be heard by the Interior Board of Contract Appeals.” 25 U.S.C. § 450m-1(d); see

also Arctic Slope, 583 F.3d at 789 (“The 1988 amendments to the ISDA made the Contract

In pertinent part, the Tucker Act as amended provides that

[t]he Court of Federal Claims shall have jurisdiction to render

judgment upon any claim by or against, or dispute with, a

contractor arising under section 7104(b)(1) of title 41, including

a dispute concerning termination of a contract, rights in tangible

or intangible property, compliance with cost accounting

standards, and other nonmonetary disputes on which a decision

of the contracting officer has been issued under section 6 of that

Act [, 41 U.S.C. § 7103].

28 U.S.C. § 1491(a)(2).

Disputes Act applicable to disputes concerning self determination contracts. As a result, ISDA

self-determination contractors can appeal an adverse decision by a contracting officer on contract

disputes to the Civilian Board of Contract Appeals [the successor to the Interior Board of

Contract Appeals] or to the Court of Federal Claims.” (internal citations omitted)). The CDA

requires “contractors,” defined as “part[ies] to a [f]ederal [g]overnment contract other than the

[f]ederal [g]overnment,” 41 U.S.C. § 7101(7), to submit claims against the government in

writing to a contracting officer for a decision, 41 U.S.C. § 7103(a). Claims of more than

$100,000 must be certified by an individual authorized to bind the contractor with respect to the

claim. 41 U.S.C. § 7103(b). After a decision or a lack of a decision by the contracting officer,

the contractor can then bring suit in this court. 41 U.S.C. § 7104(b)(1).7

The government asserts that the Council’s claims should be dismissed for lack of subject

matter jurisdiction because no valid contracts were entered between the Council and the Office.

See Def.’s Mot. at 16, 19. However, the Federal Circuit has held that “jurisdiction under [the

Tucker Act] 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)

(emphasis in original). “The actual existence of a contract is not a jurisdictional matter but rather

a decision on the merits of the case.” Liberty Ammunition, Inc. v. United States, 101 Fed. Cl.

581, 586-87 (2011) (citing Engage Learning, 660 F.3d at 1354-55 (in turn citing Bell v. Hood,

327 U.S. 678, 682 (1946))) (emphasis in original). Here, the Council has asserted that it was a

party to contracts with the government entered pursuant to ISDA. See Compl. ¶¶ 10-35. The

parties have provided copies of the agreements at issue. See Def.’s Mot. App. at A81-125

(Amendment 2 and Related Documents); A148-A200 (Amendment 6 and Related Documents).

Although the government has challenged the validity of those contracts, see, e.g., Def.’s Mot. at

20-23 (arguing that the awarding official had no authority to bind the United States in contract

with the Council), that challenge does not, and cannot, jurisdictionally bar the court from

examining the Council’s claim that it has entered into express contracts with the government.

Moreover, for the purpose of the court’s jurisdictional inquiry, the Council also qualifies

as a “contractor” under the CDA. Additionally, the Council’s submissions of its written,

certified claims to the director of the Office satisfy the requirements of the CDA. See, e.g., Tri-

Ad Constructors v. United States, 21 Cl. Ct. 789, 791-92 (1990) (deeming that a claim was

submitted to the contracting officer within the meaning of the CDA even though the claim was

embodied in letter addressed to another official in the contracting officer’s office); American

Pac. Roofing Co. v. United States, 21 Cl. Ct. 265, 267-68 (1990) (same); see also J & E Salvage

Co. v. United States, 37 Fed. Cl. 256, 262 (1997) (noting that in Tri-Ad and American Pacific,

jurisdiction was found because the submissions were made to the appropriate procurement

agency and logically found their way to the pertinent contracting officer). Accordingly, this case

is properly before the court, and the Council’s complaint will not be dismissed for lack of subject

matter jurisdiction.

“Failure by a contracting officer to issue a decision on a claim within the required time

period [60 days or a reasonable time period] is deemed to be a decision by the contracting officer

denying the claim and authorizes an appeal or action on the claim as otherwise provided in this

chapter.” 41 U.S.C. § 7103(f)(5).

B. Authority to Enter the Contracts Between the Council and the Government

The government next urges this court to reject the Council’s claims regarding the

existence of contracts between Council and the government because Ms. Forcia — the awarding

official who signed the agreements — lacked the requisite authority to bind the United States in

contract. See Def.’s Mot. at 20.

1. A non-published limitation on the contracting officer’s authority.

To establish an express contract with the United States, a plaintiff “must show a mutual

intent to contract[,] including an offer, an acceptance, and consideration.” Trauma Serv. Grp. v.

United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997). A “contract with the United States also

requires that the [g]overnment representative who entered or ratified the agreement had actual

authority to bind [the government].” Id. “[A]ny party entering into an agreement with the

[g]overnment accepts the risk of correctly ascertaining the authority of the agents who purport to

act for the [g]overnment.” Monarch Assurance P.L.C. v. United States, 244 F.3d 1356, 1360

(Fed. Cir. 2001); see also Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 (1947)

(“[A]nyone entering into an arrangement with the [g]overnment takes the risk of having

accurately ascertained that he who purports to act for the [g]overnment stays within the bounds

of his authority.”). The Court in Federal Crop Insurance cautioned that “[t]he scope of this

authority may be explicitly defined by Congress or be limited by delegated legislation, properly

exercised through the rule-making power. And this is so even though . . . the agent himself may

have been unaware of the limitations upon his authority.” 332 U.S. at 384.

The Federal Circuit’s application of the rule espoused in Federal Crop Insurance has

continued to place the burden of knowing the scope of a contracting officer’s authority on the

contractor.8 In one instance, a question arose concerning a contracting officer’s authority to

enter oral rather than written contracts. The contracting officer’s specific delegation of authority

noted that he could take any “necessary and appropriate action” with respect to certain financial

incentive awards made to contractors. Harbert/Lummus Agrifuels Projects v. United States, 142

F.3d 1429, 1432 (Fed. Cir. 1998). The delegation of authority, however, noted that “a separate

prior written approval of any such action must be given by or concurred in by [the contracting

officer] to accompany the action.” Id. (emphasis added). The delegation of authority was

provided to the contractors as part of the closing documents for the project. Harbert/Lummus

Agrifuels Projects v. United States, 36 Fed. Cl. 494, 500 (1996), aff’d in part, vacated in part,

and rev’d in part, 142 F.3d 1429.9 The Federal Circuit stated that “[t]he burden was on [the

This court and its predecessor have relied on Federal Crop Insurance in placing the

burden on contractors to ascertain any dollar limitations that restrict the authority of contracting

officers with whom they interact. See, e.g., Edwards v. United States, 22 Cl. Ct. 411, 420-21

(1991) (stating that the government could not be bound if a contracting officer agreed to a

contract modification of a size, cost, and scope for which Postal Service regulations required

approval of superiors).

The Federal Circuit noted in its decision that “the facts of [the] case have been set out in

great detail in the trial court’s decision and will be referred to in this opinion only to the extent

plaintiff] to prove that the [contracting officer] had the authority to enter into the oral, unilateral

contract.” Harbert/Lummus, 142 F.3d at 1432. The court continued:

It appears evident that, if Harbert/Lummus had examined the [contracting

officer’s] delegation of authority, it could not have reasonably believed it had

entered into a binding contract with the government in the absence of the required

written approval by the [contracting officer]. Because there is no evidence of such

prior, written approval by the [contracting officer] of the unilateral contract, we

hold that the [contracting officer] lacked the authority to enter into the oral

contract and it is therefore not binding upon the government.

Id. at 1433.

Nonetheless, the Federal Circuit has acknowledged that the government must provide

evidence that an act is outside a contracting officer’s authority if such an act is prima facie

within the contractor’s area of assignment:

Attorney argument is insufficient to overcome the presumed regularity of an act

of contract administration that is prima facie within the contracting officer's

assignment. In contrast, in Federal Crop Insurance a publicly available regulation

expressly prohibited the act of the government agent on which the private

contractor had relied. . . . When the actions of the contracting officer are within

the authority that pertains to the subject matter of the contract, and no statute or

regulation limits that authority, as in Federal Crop Insurance, the agency bears

the burden of coming forward with evidence of lack of authority for the actions of

the contracting officer. This burden is not met simply by attorney allegation in a

litigation context.

LDG Timber Enters., Inc. v. Glickman, 114 F.3d 1140, 1143 (Fed. Cir. 1997). The Federal

Circuit in LDG Timber observed in that case that “[n]o statute, regulation, or rule was cited as

violated by the contract extensions and representations of [the contracting officer], and indeed

nothing in these routine arrangements reasonably suggested lack of authority.” Id.

Consequently, denial of plaintiff’s claim could not be sustained on the ground that the

contracting officer exceeded his authority. Id.

Taken together, these cases establish a general rule that places the burden of knowledge

of the scope of a contracting officer’s authority on a contractor, so long as the government has

provided evidence of the scope of the authority of the official in question. Here, Ms. Forcia, the

government representative who signed Amendments 2 and 6, bore the title of “Level I Awarding

Official.” See Def.’s Mot. App. at A1. The Bureau’s publicly available handbook stated that

officials holding that designation had the authority to enter into “self-determination non-

construction contracts, and grants.” Id. at A11. Despite this apparent indication of authority, the

necessary for an understanding of the issues that give rise to this appeal.” Harbert/Lummus, 142

F.3d at 1430.

Bureau had specifically restricted the scope of Ms. Forcia’s authority by certifying her with the

authority to award only grants under Pub. L. 102-477. See id. at A2.

This constraint must be judged against the fact that 477 authority relates to a program that

does not independently provide for grants or other funding. See, e.g., 25 U.S.C. § 3408(a);

Def.’s Resp. to Pl.’s Mot. for Partial Summary Judgment (“Def.’s Resp.”), Attach. 2 (Declaration

of Terrence Parks, Division Chief for Self Determination, Office of Indian Services for the

Bureau of Indian Affairs (May 16, 2013)) (“Parks Decl.”) ¶ 3, ECF No. 53-2 (“All the funds

distributed through the [477 program] are those which the [t]ribe would otherwise receive under

the authority of the individual programs it chooses to consolidate in its ‘477’ plan.”). These

circumstances present the court with a conundrum regarding the scope of Ms. Forcia’s authority.

Taken literally, the mandate that Ms. Forcia was “delegated the authority to award only P.L 102-

477 grants,” Def.’s Mot. App. at A2, would render her awarding authority meaningless, as the

477 Act does not provide for grants. Accordingly, the court must look to the purpose and intent

of the programs created under the authority of the 477 Act to avoid such an absurd result. Cf.

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982) (“It is true that interpretations of a

statute which would produce absurd results are to be avoided if alternative interpretations

consistent with the legislative purpose are available.”).

The Parks Declaration is of some aid to the court in deciphering what the Department of

the Interior means when referring to 477 grants. Mr. Parks confirms that the 477 program allows

tribes “to combine [f]ederal grant funds related to employment and training activities into a

single plan with a single budget and a single reporting system. . . . No separate funding or

contracting authority is associated with the 477 demonstration project.” Parks Decl. ¶ 3

(emphasis added). According to Mr. Parks, “[t]raditionally, all 477 program funds are

distributed through [ISDA] agreements.” Id. He further explains that Ms. Forcia, who was

directly involved with the 477 program, “did not need general contracting authority or general

self-determination agreement authority because the 477 demonstration project does not

encompass these areas. Therefore, her authority was specifically limited to grant agreements

under the 477 demonstration project whereby the funding would be distributed through an

[ISDA] agreement.” Id. ¶ 4. In Mr. Parks’s view, this meant that “she could only award funds

within the 477 demonstration project. For instance, law enforcement services are proper to

include in a typical [ISDA] agreement, but are not encompassed by the 477 demonstration

project and, therefore, Ms. Forcia had no delegated authority to award funds for a law

enforcement program.” Id. ¶ 5. In short, Mr. Parks explained that the 477 grant limitation on

Ms. Forcia’s authority restricted the subject matter of the ISDA agreements to which she could

bind the government.

In addition to limiting the subject matter of the ISDA agreements, the 477 grant

restriction ostensibly limits the parties with whom Ms. Forcia had the authority to contract.

While ISDA enables the government to enter into self-determination contracts with tribes and

tribal organizations, see 25 U.S.C. § 450f(a)(1), the 477 Act only allows for the consolidation of

funds as authorized by the government of an Indian tribe under the tribal government’s 477 plan

as approved by the Secretary of the Interior. See 25 U.S.C. §§ 3403, 3405. The 477 Act defines

Indian tribe to mean “any Indian tribe, band, nation, or other organized group or community,

including any Alaska Native village . . . which is recognized as eligible for the special programs

and services provided by the United States to Indians because of their status as Indians.” 25

U.S.C. § 3402(2) (477 program); see also 25 U.S.C. § 450b(e) (ISDA).

In the instant case, Amendments 2 and 6 were modifications to the ARRA contract,

entered pursuant to ISDA. Moreover, the projects contemplated by Amendments 2 and 6 were

workplace training programs, which are encompassed within the authorization of the 477 Act.

See 25 U.S.C. § 3403 (“The Secretary . . . shall upon the receipt of a plan acceptable to the

Secretary of the Interior submitted by an Indian tribal government, authorize the tribal

government to coordinate, in accordance with such plan, its federally funded employment,

training, and related services programs in a manner that integrates the program services

involved into a single, coordinated, comprehensive program.”) (emphasis added). Accordingly,

Ms. Forcia possessed the authority to enter into Amendments 2 and 6 with Spirit Lake, a

federally recognized Indian tribe. She could not, however, also contract with the Council, which

is not an Indian tribe and, for purposes of this case, is also not a qualifying tribal organization, as

explained infra.10 Accordingly, the Council cannot prevail on its claims that Amendments 2 and

6 were express, three-party contracts between Spirit Lake, the government, and the Council,

because Ms. Forcia did not have the authority to bind the government to agreements that

included the Council as a party.11

Given the precedents established by the Supreme Court and the Federal Circuit

regarding the authority of contracting officers, the court is precluded from finding merit in

Council’s argument that requiring a contractor to ascertain the scope of authority of a

government official “would impose huge delays and burdens on the [f]ederal contracting

process.” See Pl.’s Resp. to Def.’s Mot. to Dismiss and, in the Alternative, for Summary

Judgment, and Pl.’s Mem. in Support of its Mot. for Partial Summary Judgment (“Pl.’s Cross-

Mot.”) at 31, ECF No. 46. The Federal Acquisition Regulations require that “[i]nformation on

the limits of the contracting officers’ authority shall be readily available to the public and agency

personnel.” 48 C.F.R. § 1.602-1(a). In this instance, information about Ms. Forcia’s authority

was not “readily available.” Id. Moreover, even if information about the limitation on

Ms. Forcia’s authority had been obtainable by making a query to the Office, considerable

uncertainly would have arisen because the interaction of the 477 program with ISDA is not

apparent from the pertinent statutory language. Additionally, a query to the Office probably

would not have been of help to the Council in evaluating the question of authority. As the facts

and circumstances of this case demonstrate, the Office was itself under a misapprehension about

the scope of Ms Forcia’s authority.

The Department of the Interior’s Office of Inspector General investigated the

circumstances surrounding the letting of Amendment 2. See Pl.’s Sur-Reply Mem. of Law

(“Pl.’s Sur-Reply”), Ex. A (Mem. from Robert A. Knox, Assistant Inspector General for

Recovery Oversight to Chris Henderson, Senior Advisor to the Secretary for Recovery and

Stimulus, Department of the Interior) (“OIG Mem.”) at 1, ECF No. 52-1. In an advisory opinion,

the Assistant Inspector General observed that the aim of the project — “to bring basic

construction training to tribal individuals on reservations where unemployment rates are

approaching 50 [percent]” — was laudable. OIG Mem. at 3. The Assistant Inspector General

concluded, however, that the Office had “circumvented the Public Law 93-638 process and

2. A statutory prerequisite to contract entry.

A further question arises respecting compliance with a restriction in ISDA, namely, that

all grants are to be made to tribes or to “tribal organization[s].” 25 U.S.C. § 450f. The specific

issue is whether the Council qualifies as a tribal organization in the circumstances of the awards

in this case. “[I]n interpreting a statute a court should always turn first to one, cardinal canon [of

statutory interpretation] before all others.” Connecticut Nat’l Bank v. Germain, 503 U.S. 249,

253 (1992). The Supreme Court has instructed “time and again that courts must presume that a

legislature says in a statute what it means and means in a statute what it says there.” Id. at 253-

54 (citing United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241-42 (1989); United States v.

Goldenberg, 168 U.S. 95, 102-03 (1897); Oneale v. Thornton, 10 U.S. (6 Cranch) 53, 68 (1810)).

Accordingly, “[w]hen the words of a statute are unambiguous . . . this first canon is also the last:

‘judicial inquiry is complete.’” Id. at 254 (quoting Rubin v. United States, 449 U.S. 424, 430

(1981)). Put another way, “when the statute’s language is plain, the sole function of the courts

— at least where the disposition required by the text is not absurd — is to enforce it according to

its terms.” Lamie v. United States Tr., 540 U.S. 526, 534 (2004) (quoting Hartford Underwriters

Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1, 6 (2000) (internal quotations omitted)).

As discussed supra p. 3, ISDA gives the Secretary of the Interior the authority to “enter

into a self-determination contract or contracts with a tribal organization to plan, conduct, and

administer programs or portions thereof” for the benefit of Indians. 25 U.S.C. § 450f(a)(1).12

Again, a tribal organization is defined as: