# DISMISSED FOR LACK OF JURISDICTION: June 15, 2010

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/agency%3Acbca%3A0794598eb945aef3

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

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

3

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.

CBCA 1165

4

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.

CBCA 1165

5
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

6

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

CBCA 1165

7

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

8

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

CBCA 1165

9

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.

CBCA 1165

10

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.

CBCA 1165

11

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.

CBCA 1165

12

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

CBCA 1165

13

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

14

We concur:

________________________________
JAMES L. STERN
Board Judge

_________________________________
H. CHUCK KULLBERG
Board Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Acbca%3A0794598eb945aef3. Public record. Not legal advice.