DISMISSED FOR LACK OF JURISDICTION: June 15, 2010

DISMISSED FOR LACK OF JURISDICTION: June 15, 2010

CBCA 1165

ENGAGE LEARNING, INC.,

Appellant,

v.

DEPARTMENT OF THE INTERIOR,

Respondent.

Ellis B. Freatman, III and Virginia A. Cardwell of Roberts & Freatman, Ypsilanti, MI,

counsel for Appellant.

Emily E. Parkhurst, Office of the Solicitor, Department of the Interior, Washington,

DC, counsel for Respondent.

Before Board Judges STERN, HYATT, and KULLBERG.

HYATT, Board Judge.

Appellant, Engage Learning, Inc. (Engage Learning), has appealed the denial of its

claim for payment for consulting services provided to respondent, the Department of the

Interior, Bureau of Indian Affairs (BIA). Respondent moves to dismiss the appeal on the

grounds that (1) the Board lacks subject matter jurisdiction and (2) the complaint fails to state

a claim for which relief may be granted by this Board. Alternatively, respondent seeks

summary relief on the ground that the material facts are not in dispute and the Government

CBCA 1165

2

is entitled to prevail as a matter of law. For the reasons discussed below, the motion to

dismiss for lack of jurisdiction is granted.

Background

1.

Engage Learning is a small company that provides professional training,

curriculum development, and technical assistance services to schools, teachers, and

administrators. Engage Learning’s services focus on raising the academic achievement of

students in kindergarten through grade twelve. Complaint ¶ 12.

2.

Engage Learning, together with its predecessor, Johnston Consulting, has

provided professional training and technical assistance services to schools operated by the

BIA since 2001. Most of these services have been provided in conjunction with goals

enunciated in the BIA’s Family and Child Education (FACE) program.1 Engage Learning

and BIA have done approximately $4.1 million of continuous business together. Complaint

¶ 18; Affidavit of Diana Jo Johnston (Feb. 8, 2009) ¶ 7.

3.

On August 8, 2002, BIA awarded purchase order SMK0E020259 (PO 20259)

to Engage Learning. Under this order, Engage Learning was to provide a five-day teacher

implementation training program and to support teachers in the child centered learning

approach through site visits at BIA schools in connection with the FACE K-3 Literacy

Model. Appeal File, Exhibit 1.

4.

PO 20259 was a sole-source contract awarded pursuant to the simplified

acquisition procedures under the Federal Acquisition Regulation (FAR). The contract was

awarded for the amount of $66,480. Of that amount, $30,480 was allocated for the five-day

training and $36,000 was allocated for the site visits. The period of performance provided

for the training was August 5 - 9, 2002, and the period of performance planned for the site

visits was August 12, 2002, through June 30, 2003, with the overall period of performance

provided for under the contract from August 5, 2002, through June 30, 2003. Appeal File,

Exhibit 1.

5.

By September 20, 2002, Engage Learning had fully performed the work under

PO 20259, completing both the five-day training and the site visits.

1

FACE was initiated by BIA in 1990 for the purpose of promoting family

literacy. The program seeks to narrow achievement gaps for American Indian children

located primarily on rural reservations and to better prepare them for school. See

http://www.bie.edu.

CBCA 1165

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6.

Aside from the site visits and training performed under PO 20259, the Indian

Education program office identified a large quantity of site visits and training services that

it wanted Engage Learning to provide. Between October 1 and November 22, 2002, Engage

Learning provided specific training and technical assistance services to fourteen schools in

the FACE program. Complaint ¶¶ 21, 25. In all, Engage Learning provided consulting

services totaling $462,052.20, most of which was paid for with funds provided directly to the

schools by the Special Assistant to the Director, Office of Indian Affairs. The amount of

$80,485 is all that remains unpaid for these services. Affidavit of Lana Shaughnessy

(Feb. 3, 2009) ¶¶ 8-9; see Appeal File, Exhibit 10.2

7.

On December 18, 2002, Amendment 1 was issued to change the accounting

code for PO 20259; the amendment did not change or in any way affect the work or dollar

amount of PO 20259. Appeal File, Exhibit 7 at 39.

8.

For the periods from March 1-4, 2004 and April 5-7, 2004, Engage Learning

provided services to the Cottonwood Day School in Chinle, Arizona. Complaint ¶ 28. These

services were requested by the principal of Cottonwood Day School, Esther Frejo.

Supplemental Appeal File, Exhibit 30. Engage Learning submitted invoices in the amount

of $11,500 to BIA for payment of the professional training services it provided. Complaint

¶ 29. No purchase order was issued by BIA for these services nor was PO 20259 amended

to include these services.

9.

On July 24, 2004, the contracting officer, Keith King, sent a letter to Ms.

Johnston, the President and Chief Executive Officer (CEO) of Engage Learning, addressing

appellant’s request to be paid for invoices totaling $80,485. Appeal File, Exhibit 10 at 45.

The contracting officer advised that based on his review of the matter, the unpaid invoices

2

In a letter dated July 24, 2004, set forth in the Appeal File at Exhibit 10, the

contracting officer expressed his view about this situation:

It appears that in order to circumvent having to work through the

OIEP Contracting Officer to get a contract in place for these

services, Ms. Shaughnessy sent funds directly to the schools to

pay for the services and scheduled services to be performed at

these schools knowing that there was not a contract in place.

Additionally, it appears that Ms. Johnston of Engage Learning

performed these services knowing full well that a contract was

not in place authoriz[ing] these services to be performed.

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resulted from an “unauthorized commitment, made by a Government employee who did not

have authority to enter into an agreement on behalf of the Government.” He also concluded

that the unauthorized obligations were not subject to ratification procedures because: (1) a

resulting contract would not otherwise have been proper if made by an appropriate

contracting officer; (2) the contracting officer could not determine that the prices were fair

and reasonable; and (3) ratification would be used in a manner that encourages such

commitments being made by government personnel. Id. Mr. King further stated that he had

told both the Office of Indian Education Programs and the contractor that no contract was

in place for these services and that until a contract was in place, the services should not be

provided. Id. at 46.

10.

The contracting officer’s comment, in the letter dated July 24, 2004, to the fact

that he had notified both Ms. Shaughnessy and Ms. Johnston that no contract was in place

for the services in question refers to an October 4, 2002, conversation recorded in a

memorandum authored by Mr. King and addressed to Ms. Shaughnessy, then the Special

Assistant to the Director of the Office of Indian Affairs.3 Mr. King confirms in the

memorandum that he spoke to Ms. Johnston, apprising her of the fact that there was no

contract in place for the site visits she was planning to start the following week. The

memorandum also states that Mr. King informed Ms. Johnston that he had no authority to

authorize the work to begin, particularly because the BIA Competition Advocate had not yet

approved the Justification for Other than Full and Open Competition. Appeal File, Exhibit

14 at 109. The contracting officer is now deceased and cannot attest to the events described

in the memorandum.

11.

Ms. Johnston refutes the contracting officer’s description of the conversation

that Mr. King states occurred on October 4, 2002, prior to services being rendered. She

maintains that she did not speak with the contracting officer and that she was not advised of

his concerns. She avers that:

2.

The statement that I was informed by BIA contracting

officer Keith King on October 4, 2002, that there was not a

contract in place for the site visits I was planning to start the

following week, is false. Keith King did not make that

statement to me on or near October 4, 2002.

3

The Government requested leave to supplement the appeal file with this

memorandum, which was not in the contract files when the appeal was filed. Thereafter, a

copy of the memorandum was located in files in the Office of the Inspector General. The

Government’s request to include the document in the Appeal File as Exhibit 14 is granted.

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3.

The statement that: “Mr. King informed Ms. Johnston

that he did not have the authority to authorize work to begin

until the BIA Competition Advocate approves the Justification

for Other than Full and Open Competition” is false. Mr. King

did not make that statement to me on or near October 4, 2002.

4. The statement that “Mr. King informed Ms. Johnston that no

work could be done at that time” is false. Keith King did not

make that statement to me on or near October 4, 2002.

Johnston Affidavit ¶¶ 2-4.

12.

Appellant also submits an affidavit executed by Lana Shaughnessy, the former

Special Assistant to the Director of the Office of Indian Affairs. With respect to the issues

raised in this appeal, Ms. Shaughnessy attests as follows:

2. Engage Learning, Inc. was selected to be the K-3 service

provider for the Bureau of Indian Affairs FACE . . . program

contract.

3.

During the 2002 to 2003 school year, the Bureau of

Indian Affairs selected Engage Learning to provide four site

visits each to thirty-two different Indian schools.

4.

The wide range of services contracted for included

intensive, one-on-one professional development training,

instruction and support services to teachers and administrators

inside classrooms and school offices.

5.

I directed Engage Learning to provide these services.

6.

I was the contracting officer representative and I had the

authority to authorize and approve work performed by Engage

Learning.

Shaughnessy Affidavit ¶¶ 2-6. Ms. Shaughnessy also avers that thirty-four site visits were

provided by appellant between October and December 2002 and that the schools were

provided with funds distribution documents and directed by Ms. Shaughnessy to use the

money to pay for FACE visits for that time period. She further asserts that she “had the

authority to direct the schools to contract for these services and to bind the Government in

CBCA 1165

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that commitment.” Finally, Ms. Shaughnessy states that out of a total of $462,052.20 in

services performed and invoiced by Engage Learning, the amount of $80,485 is the only

unpaid balance. Id. ¶¶ 8-9.

13.

A third affidavit, executed by the Vice President of Engage Learning, states

that “Keith King gave verbal authority to conduct four site support visits each to thirty-two

different Indian schools during the 2002 to 2003 school year.” Affidavit of Heather L.

Johnson (Feb. 10, 2009) ¶ 2.

14.

A memorandum dated July 2, 2002, from the Director of the Office of Indian

Education Programs to education line officers, addresses the authority of a supervisor of a

Bureau-operated school to order materials, supplies, equipment, operation services,

maintenance services, and other services for the school, for an aggregate amount not to

exceed $50,000, and without competitive bidding if:

(i)

the cost for any single item acquired does not exceed $15,000;

(ii)

the school board approves the acquisition;

(iii)

the supervisor certifies that the cost is fair and reasonable;

(iv)

the documents relating to the acquisition executed by the supervisor or

other school staff cite this paragraph as authority for the acquisition;

and

(v)

the acquisition transaction is documented in a journal maintained at the

school that clearly identifies when the transaction occurred, the item

that was acquired and from whom, the price paid, the quantities

acquired, and any other information the supervisor of the school board

considers to be relevant.

This authority is provided under the No Child Left Behind Act of 2001, Pub. L. No. 107-110,

115 Stat. 1425 (2002), generally codified at 20 U.S.C. §§ 6301-6578 (2006). The

memorandum cautioned that no funds may be used from the school’s operation and

maintenance, Department of Education, or other Federal funds as part of the $50,000 until

a solicitor’s opinion is received on the appropriateness of the use of those funds for non­

competitive procurement. Supplemental Appeal File, Exhibit 2.

15.

On November 28, 2007, Engage Learning submitted a claim for delayed

payment on the same invoices addressed in the contracting officer’s July 24, 2004, letter in

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the amount of $80,485 as well as an additional invoice for $11,500 for work performed

between March 1-4, 2004 and April 5-7, 2004. This claim included Prompt Payment Act

interest. The BIA responded by letter on March 5, 2008, stating that it stood by the position

taken by the contracting officer in the July 24, 2004, letter. Appeal File, Exhibit 12 at 73-74.

On June 19, 2008, Engage Learning elected to file its notice of appeal with the Civilian

Board of Contract Appeals. Engage Learning pointed out in its notice of appeal that the

March 5 letter did not contain language, required by the Contract Disputes Act of 1978

(CDA), 41 U.S.C. §§ 601-613 (2006), that would cause the letter to qualify as a final

decision.

Discussion

Engage Learning characterizes its appeal as one based on breach of contract for failure

to pay for services that Engage Learning provided to BIA in 2002 and 2004. The

Government argues that the appeal can be resolved summarily for several reasons: (1) the

Board lacks jurisdiction because the services were not provided pursuant to either an express

or an implied-in-fact contract; (2) Engage Learning failed to state a claim for which relief can

be granted; and (3) no material facts are in dispute and the Government is entitled to prevail

as a matter of law.

The Board’s Jurisdiction Under the CDA

BIA’s motion to dismiss for lack of subject matter jurisdiction raises a threshold

matter which must be resolved before addressing alternative motions. Appellant bears the

burden of establishing subject matter jurisdiction by a preponderance of the evidence.

McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Reynolds v. Army

and Air Force Exchange Service, 846 F.2d 746, 747 (Fed. Cir. 1988); 801 Market Street

Holdings, L.P. v. General Services Administration, CBCA 425, 08-1 BCA ¶ 33,853. In

assessing whether the Board has subject matter jurisdiction, “the allegations of the complaint

should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974);

accord Hamlet v. United States, 873 F.2d 1414, 1416 (Fed. Cir. 1989); CACI,

INC.-FEDERAL v. General Services Administration, GSBCA 15588, 02-1 BCA ¶ 31,712,

at 156,635 (2001). When a motion to dismiss for lack of subject matter jurisdiction

challenges the truth of alleged jurisdictional facts, the Board may consider relevant evidence

beyond the pleadings to resolve disputed facts. Cedars-Sinai Medical Center v. Watkins, 11

F.3d 1573, 1583-84 (Fed. Cir. 1993); B&M Cillessen Construction Co. v. Department of

Health and Human Services, CBCA 931, 08-1 BCA ¶ 33,753 (2007); Innovative (PBX)

Telephone Services, Inc. v. Department of Veterans Affairs, CBCA 12, et al., 07-2 BCA

¶ 33,685.

CBCA 1165

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The Board’s jurisdiction under the CDA is defined as follows:

Unless otherwise specified herein, this chapter applies to any express or

implied contract . . . entered into by an executive agency for

(1) the procurement of property, other than real property in

being;

(2) the procurement of services;

(3) the procurement of construction, alteration, repair or

maintenance of real property; or

(4) the disposal of personal property.

41 U.S.C. § 602(a); see also Opportunities for the Aging Housing Corp. v. Department of

Housing and Urban Development, CBCA 1501, 10-1 BCA ¶ 34,311 (2009); Petersen

Equipment Fire & Emergency Services v. Department of the Interior, CBCA 185-R, et al.,

08-2 BCA ¶ 33,939; All Star Metals, LLC v. Department of Transportation, CBCA 91, 07-1

BCA ¶ 33,562. The term “implied contract” under the CDA refers only to contracts implied

in fact; the Board has no jurisdiction with respect to contracts implied at law. See Angel

Menendez Environmental Services, Inc. v. Department of Veterans Affairs, CBCA 19, et al.,

08-1 BCA ¶ 33,731, at 167,005 (2007) (citing Means Co., AGBCA 95-182-1, 95-2 BCA

¶ 27,837); Guilltone Properties, Inc., HUD BCA 02-C-103-C4, 06-1 BCA ¶ 33,249; accord

Altanmia Commercial Marketing Co., ASBCA 55393, 09-1 BCA ¶ 34,095. See generally

Hercules, Inc. v. United States, 516 U.S. 417, 423-24 (1996).

BIA contends that the Board lacks jurisdiction over this appeal because Engage

Learning had no express or implied contract with the Government for the services for which

it was not paid. In its opposition to respondent’s motion to dismiss for lack of jurisdiction,

appellant maintains that it in fact had “an express contract for some of the work performed,

and clear and unambiguous implied-in-fact contracts for all of the other work for which

payment is now sought.” Engage Learning’s complaint references PO 20259 and requisition

K00E202270.

Express Contract

For the time frame in issue, the only express contract for Engage Learning’s services

was PO 20259. The site visits and other services totaling $80,485 were performed by Engage

Learning at locations different from those covered by PO 20259. PO 20259 was awarded

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non-competitively under simplified acquisition procedures. The award was for specified

services in the amount of $66,480, and the only amendment to the purchase order did not

change that amount. Findings 4, 7; Appeal File, Exhibit 7 at 39.

The invoiced work for which appellant seeks compensation is for the site visits

referred to above, in the amount of $80,485, and for the work at Cottonwood Day School,

for the amount of $11,500. Findings 6-7. The combined invoices represent a total of

$91,985, an amount that respondent points out could not have been added to this purchase

order specifically because it would have increased the value of the purchase order above the

simplified acquisition threshold of $100,000 established in the FAR. See 48 CFR 2.101 and

Part 13 (2002). Additionally, a portion of the invoiced work was performed outside the

period of performance of PO 20259. Appeal File, Exhibit 1 at 1; Finding 8. The particular

services ordered under PO 20259 were fully performed by Engage Learning as of

September 20, 2002, and were paid for in full.

Appellant argues that Ms. Shaughnessy intended that the contract for site visits would

be much more inclusive than the work included in PO 20259 and that she attempted to rectify

the amount of the purchase order to encompass a much larger volume of work anticipated

to be ordered. This is reflected in requisition K00E202270, comprised of two documents

styled as amendments 1 and 2 to PO 20259, adding numerous site visits and other services

to be provided by Engage Learning. These documents are signed by Lana Shaughnessy and

by the Director of the Office of Indian Education Programs. They are not signed by any BIA

contracting officer, however, and appear to be simply requisitions for work that Ms.

Shaughnessy wanted to order.4 Supplemental Appeal File, Exhibit 5. These requisitions are

internal documents requesting that a contract or contracts be issued and do not rise to the

level of an express contract. Thus, these documents are not evidence that an express contract

was executed for this work, or that PO 20259 in any way included this additional work.

Appellant has not produced any document showing that a contracting officer ever included

the invoiced work in a contract. On the record provided, the express contract covered only

the limited site visits and consulting services enumerated in that order and was never

expanded to cover any further services. Appellant has not met its burden to demonstrate that

an express contract covered all or any part of the work at issue.

Implied-in-Fact Contract

4

Ms. Shaughnessy had funding for the work, which she distributed to the

schools slated for site visits and other consulting services. Most of the work ordered was

ultimately paid for. The services forming the subject of this dispute, however, were not paid

for. Finding 8.

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Although PO 20259 does not cover the actual services for which appellant seeks

compensation, this express contract does not serve as an impediment to appellant’s

alternative argument, that there was an implied-in-fact contract under which it is entitled to

recover. See Trauma Service Group v. United States, 104 F.3d 1321, 1326 (Fed. Cir. 1997);

Atlas Corp. v. United States, 895 F.2d 745, 754-55 (Fed. Cir. 1990); JAVIS Automation &

Engineering, Inc. v. Department of the Interior, CBCA 938, 09-2 BCA ¶ 34,309.

To defeat respondent’s motion to dismiss for lack of jurisdiction, appellant must meet

its burden to adduce facts that, if proven, would support a finding that an implied-in-fact

contract was created by the parties for the work at issue. Thus, Engage Learning must allege

facts sufficient to show: (1) mutuality of intent to contract; (2) consideration; (3) lack of

ambiguity in offer and acceptance; and (4) that the government representative whose conduct

is relied upon had actual authority to bind the Government in contract. E.g., Schism v. United

States, 316 F.3d 1259, 1278 (Fed. Cir. 2002) (en banc); Lewis v. United States, 70 F.3d 597,

600 (Fed. Cir. 1995); City of El Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990);

Southwestern Security Services, Inc. v. Department of Homeland Security, CBCA 1264, 09-2

BCA ¶ 34,139.

Assuming, without deciding, that Engage Learning has, through its dealings with Ms.

Shaughnessy, alleged sufficient facts to establish the first three elements of an implied-in-fact

contract, appellant must also show that the agency employee on whose conduct it relies had

actual, not merely apparent, authority to bind the Government. See Tolano Anderson

Contracting v. Department of Veterans Affairs, CBCA 1312, 10-1 BCA ¶ 34,398, at 169,850

(citing H.F. Allen Orchards v. United States, 749 F.2d 1571, 1575 (Fed. Cir. 1984)); InterTribal Council of Nevada, Inc., IBCA 1234-12-78, 83-1 BCA ¶ 16,433.

By law, contracts may be entered into and signed on behalf of the Government only

by contracting officers. 48 CFR 1.601(a); Flexflab, L.L.C. v. United States, 424 F.3d 1254,

1260 (Fed. Cir. 2005); Corners and Edges, Inc. v. Department of Health and Human

Services, CBCA 648, 07-2 BCA ¶ 33,706. The term “contracting officer” is defined as

follows:

Contracting Officer means a person with the authority to enter

into, administer, and/or terminate contracts and make related

determinations and findings. The term includes certain

authorized representatives of the contracting officer acting

within the limits of their authority as delegated by the

contracting officer.

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48 CFR 2.101. The FAR does not define the term “contracting officer’s representative”

(COR).

The record identifies only two contracting officers with authority to bind BIA for the

work in question – the contracting officer who signed PO 20259 and Keith King. The

purchase order also incorporates by reference FAR 52.202-1, “Definitions,” which states that

words or terms in the contract have the same meaning as the definitions in FAR 2.101. No

relevant statutes or regulations delegate contracting authority to a COR. The purchase order

does not mention a COR or other representative with any authority to bind the Government

under contract. There are no documents in the record showing that a contracting officer

delegated any authority to a COR or other employee with administrative responsibilities for

any of the work performed by Engage Learning.

Appellant’s complaint does not identify an individual who authorized the invoiced

work. It simply alleges that appellant performed the work at the direction of the

Government. Complaint ¶ 44. In her affidavit, Ms. Shaughnessy asserts that she directed

appellant to perform the work and that, as COR, she had actual authority to do so. Finding

12. Other than Ms. Shaughnessy’s declaration to that effect, there is nothing to corroborate

that she was properly assuming the role of COR, and nothing in writing to suggest that she

could bind the Government in contract. Ms. Shaughnessy’s position and job title within BIA,

Special Assistant to the Director of Indian Education Programs, would not ordinarily suggest

that she would have contracting responsibilities or authority. See D&F Marketing, Inc.,

ASBCA 56043, 09-1 BCA ¶ 34,108. Appellant has not offered sufficient evidence to support

its contention that Ms. Shaughnessy had actual authority to bind the Government to contract

for the services in question.

It appears from her affidavit that Ms. Shaughnessy genuinely, but erroneously,

believed that she was acting within the scope of her authority. The legal theory of apparent

authority, however, does not serve to create a binding agreement vis-a-vis the Government

in the absence of actual or implied authority to do so. Even when an employee is unaware

of, or is mistaken about, the scope of his or her authority to bind the Government, it is

ultimately incumbent upon the contractor to ascertain the extent of and limits upon the

employee’s authority. Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 384 (1947);

California Business Telephones v. Department of Agriculture, CBCA 135, 07-1 BCA

¶ 33,553.

The contracting officer’s memorandum to Lana Shaughnessy memorializing a

conversation that he said took place on October 4, 2002, between the Government’s

contracting officer and appellant’s CEO, is the subject of a factual dispute. Appeal File,

Exhibit 14. Appellant denies that this conversation took place as stated in that memorandum.

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Finding 12. In the statement of genuine issues provided by appellant in opposition to

respondent’s motion to dismiss, appellant asserts that had it been “informed that the planned

work was unauthorized and should not be performed, Engage Learning would not have

performed the services in question.”

For purposes of resolving this motion, whether or not the Government’s contracting

officer expressly notified the contractor that no contract was in place and that the planned

commitments were unauthorized is not dispositive for purposes of establishing actual

authority. The contracting officer had no duty to inform Engage Learning that the planned

commitment was unauthorized. Rather, the burden rested with the contractor to determine

that the official ordering work had the requisite authority to obligate the Government to pay

for that work. This rule is of long-standing tenure. Anyone who enters an arrangement with

the Government has the duty to accurately ascertain that the contract was properly formed

and binding as to its terms. See, e.g., Federal Crop Insurance Corp., 332 U.S. at 380;

Monarch Assurance P.L.C. v. United States, 244 F.3d 1356, 1360-61 (Fed. Cir. 2001);

Harbert/Lummus Agrifuels Projects v. United States, 142 F.3d 1429, 1432 (Fed. Cir. 1998).

Thus, even if the conversation Mr. King memorialized as having taken place on October 4,

2002, did not take place, it was still appellant’s responsibility to verify Ms. Shaughnessy’s

authority to contract on behalf of BIA.

Another factual dispute is arguably created by appellant in the affidavit of its

executive vice president, Heather Johnson, who attested that “Keith King gave verbal

authority to conduct four site support visits each to thirty-two different Indian schools during

the 2002 to 2003 school year.” Ms. Johnson’s affidavit, while declaring that Mr. King, a

contracting officer, gave verbal authority for site visits, provides no context to this alleged

statement of the contracting officer, which flatly contradicts the statements made in his

July 24, 2004, letter and in the October 4, 2002, memorandum. This carefully worded

sentence includes none of the information that would ordinarily be expected to be offered -­

such as when and to whom Mr. King made this representation. There are no

contemporaneous documents memorializing what should ordinarily be considered by the

contractor to be an important statement. Finally, we note that while counsel for appellant

makes a passing reference to Ms. Johnson’s affidavit in the background section of appellant’s

opposition to respondent’s motions, there is no mention of the affidavit anywhere in the

sections of the brief arguing that an implied-in-fact contract was created, although the

affidavits of Ms. Shaughnessy and appellant’s CEO, Ms. Johnston, are discussed extensively.

Given the ambiguity of the statement by Ms. Johnson, we conclude that it does not suffice,

by itself or in conjunction with other evidence provided by appellant, to meet appellant’s

burden to establish that the contracting officer obligated the Government to pay for this work.

Delegation of Contracting Authority Under the No Child Left Behind Act

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Finally, appellant has identified another potential source of contractual authority to

bind the Government for the services provided to Cottonwood Day School. Between March

1-4, 2004 and April 5-7, 2004, Engage Learning provided services to the Cottonwood Day

School in Chinle, Arizona. Finding 14. Thereafter, Engage Learning submitted invoices in

the amount of $11,500 to BIA for payment. Id. In its opposition to respondent’s motion to

dismiss, appellant asserts out that the principal of Cottonwood Day School signed a contract

with authority from the school board for site support visits by appellant in March and April

of 2004. However, the purported contract appellant relies on is not a contract but merely an

invitation from the principal for appellant to make two site visits. Supplemental Appeal File,

Exhibit 30. Furthermore, appellant fails to show that the requisite conditions of contracting

authority were met. The allegation that she had actual authority rests solely on the No Child

Left Behind Act of 2001 and BIA’s implementing memorandum. Pursuant to BIA’s

memorandum, the principal had authority to bind the Government in contract only if she met

several conditions including, but not limited to, school board approval of the acquisition and

certification by the principal that the cost was fair and reasonable Finding 14. Appellant

has not alleged or produced any documents that would indicate that school board approval

was obtained, nor has it shown that the school officials made a finding that the cost of the site

visits or other services would be fair and reasonable. Thus, appellant has not adduced

sufficient evidence to support its contention that the principal of Cottonwood Day School had

actual authority to bind the Government in contract under the cited delegation of authority.

Again, it was appellant’s responsibility to verify that Ms. Frejo was authorized to contract

for the services provided.

Appellant has failed to meet its burden to allege sufficient facts to enable us to find

that an express or implied contract existed with respect to the invoiced work at issue in this

appeal. In fact, the record clearly shows that no government contracting officer authorized

or ordered the invoiced work and no government contracting officer ratified the invoiced

work after it had been performed. Since the Board lacks jurisdiction over this appeal, we do

not address respondent’s alternative motions.

Decision

Respondent’s motion to dismiss for lack of jurisdiction is granted. The appeal is

DISMISSED FOR LACK OF JURISDICTION.

_________________________________

CATHERINE B. HYATT

Board Judge

CBCA 1165

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We concur:

________________________________

JAMES L. STERN

Board Judge

_________________________________

H. CHUCK KULLBERG

Board Judge