# DENIED: October 28, 2011

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## Record

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

## Text

DENIED: October 28, 2011

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MERLIN INTERNATIONAL, INC.,
Appellant,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
David C. Aisenberg of Looney, Cohen, Reagan & Aisenberg, LLP, Boston, MA,
counsel for Appellant.
Kris M. Gawin and Megan E. Gemunder, Office of the General Counsel, Department
of Homeland Security, Washington, DC, counsel for Respondent.
Before Board Judges HYATT, GOODMAN, and SHERIDAN.
HYATT, Board Judge.
These appeals are of a contracting officer’s decision denying the claim of appellant,
Merlin International, Inc. (Merlin), for breach damages under a delivery order awarded to
it by respondent, the United States Citizenship and Immigration Services (USCIS), a
component of the Department of Homeland Security (DHS). The order, for a base year with
four option years, was for the acquisition of unlimited perpetual use licenses to be used in
conjunction with a software package marketed by Siebel Systems that USCIS intended to
use to track immigration throughout the United States. Merlin seeks breach damages based

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on DHS’s decision that it would not renew the delivery order for the first option period of
the contract on the ground that there was no “bona fide need for the System or functionally
similar products or services.” For the reasons stated, we deny the appeal.
Findings of Fact1
Background and Chronology of the Acquisition
USCIS came into existence on March 1, 2003, following the enactment of the
Homeland Security Act of 2002, which transferred the functions of the Immigration and
Naturalization Service (INS) from the Department of Justice to the newly formed DHS.
USCIS is responsible for the administration of immigration benefits and services, including
the following: immigrant visa petitions, naturalization petitions, asylum and refugee
applications, granting lawful permanent resident status and U.S. citizenship, making
adjudicative decisions performed at service centers, and managing all other immigration
benefit functions. Appeal File, Exhibit 51.
In 2002, INS initiated a ten-year modernization plan to improve and upgrade the
agency’s information technology (IT) systems. Immigration records had been maintained
by approximately sixty aging databases, referred to as the legacy systems. USCIS continued
INS’s assessment of these existing systems in an effort to identify a workable, modern IT
environment. It determined that the legacy environment was “costly, inefficient, and nearly
obsolete.” The existing IT environment, which consisted of a non-standard, outdated
infrastructure supporting the legacy systems’ minimally integrated applications, was batch
processing oriented, and made limited use of web-based tools and applicant self services.
Some programs still relied on handling significant volumes of paper, and current systems
did not support improved business processes. USCIS lacked data integration/data
management capability across the enterprise. Appeal File, Exhibits 7, 51 at 131-32.
After conducting a market study, USCIS narrowed its focus to a product developed
by Siebel Systems, Inc. The Siebel product provided a mature customer data integration

1

The citations to the record include the appeal file exhibits submitted by the
parties. The Government submitted two volumes of consecutively numbered exhibits.
Although the second volume, containing exhibits 51through 83, is denoted a supplemental
appeal file, for clarity all citations herein to the Government’s appeal file exhibits are treated
as part of a single Rule 4(a) appeal file. The appellant’s Rule 4(d) exhibits are referred to
as supplemental appeal file exhibits.

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package.2 Appeal File, Exhibit 6. An overall description of the Siebel product, its
capabilities, and features is provided in its literature:
Siebel Universal Customer Master (UCM) is Oracle’s[3] lead Customer Data
Integration (CDI) solution. Siebel UCM leverages the unrivaled domain
expertise of the Siebel platform to deliver a rich and complete CDI solution
with many unique capabilities. Siebel UCM’s comprehensive functionality
enables an enterprise to manage customer data over the full customer
lifecycle: capturing customer data, standardization and correction of names
and addresses; identification and merging of duplicate records; enrichment of
the customer profile; enforcement of compliance and risk policies; and the
distribution of “single source of truth” best version customer profile to
operational systems.
Among the most significant and relevant features offered by the Siebel UCM are the abilities
to match, cleanse, correlate, and resolve inconsistencies in records. Appeal File, Exhibit 53.4
Merlin is a value-added reseller of IT products, including Siebel software, to the
Federal Government. At the times relevant to this acquisition, it was a small, veteran-owned
business with a General Services Administration (GSA) schedule contract that offered the
Siebel UCM products in which USCIS was interested. Appeal File, Exhibit 3; Transcript
at 99, 104.
2

The study defined customer data integration as the combination of
technologies and processes required to maintain an accurate, timely, and complete view of
the customer across multiple channels, business lines, and databases. Appeal File, Exhibit
6.
3

On September 12, 2005, Oracle Corporation acquired Siebel Systems. Oracle
continues to manufacture and distribute Siebel products and software applications, including
the Siebel UCM, under the Siebel brand name.
4

This description of the Siebel product is taken from the Siebel UCM Guide
(Version 7.8), dated April 2006, which was the version available in the 2006-2007 time
frame and is considered by the Government to be an authoritative source of the software’s
functionality. Hearing Exhibit 71 (Government’s Expert Report); Transcript at 1173-74,
1480-83. Merlin’s expert acknowledged that this version applied after April 2006.
Transcript at 968-69. Earlier versions of the guide were less descriptive of the product’s
functionality. Hearing Exhibit 71. Under the contract, USCIS would be entitled to all
upgrades and updates. Appeal File, Exhibit 7.

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On July 20, 2004, USCIS entered into blanket purchase agreement HSSCHQ-04-A­
00850 (BPA 850) with Merlin, under Merlin’s GSA schedule contract GS-35F-0396K, to
provide DHS with a contractual vehicle that would permit it to order all Siebel software and
maintenance, including CDI software, from either of Merlin’s or Siebel’s GSA schedule
contracts. Appeal File, Exhibit 5.
Also on July 20, 2004, USCIS issued delivery order HSSCHQ-04-F-00851 (delivery
order 851) to Merlin under BPA 850. Appeal File, Exhibit 51. This order was issued
concurrently with BPA 850, in the amount of $100,000, with a base performance period of
July 20, 2004, through July 19, 2005, and four option years. Included in this order were
forty million UCM software licenses. Appeal File, Exhibit 51.
In September 2005, the Director of the Program Management Office of the Office of
USCIS’s Chief Information Officer (CIO) sent a memorandum to the DHS contracting
officer requesting that the contracting office proceed with the acquisition of unlimited UCM
licenses from Siebel. The memorandum noted that purchases on a per record basis would
not be cost effective since DHS had validated that USCIS would require an amount in
excess of 500 million. Appeal File, Exhibit 15.
In November 2005, USCIS issued an acquisition plan supporting the purchase of a
DHS-wide unlimited perpetual use site license for Siebel’s UCM software. Appeal File,
Exhibit 11. Citing the findings of its market study, the plan acknowledged that a BPA was
already in place under which to order Siebel products and that an initial order for forty
million licenses had already been placed. These licenses were being used to support two
USCIS initiatives: one, a fraud tracking system, and the other, a project to achieve records
digitization. According to the acquisition plan, between these two programs, all forty
million licenses were already allocated. Appeal File, Exhibits 6, 11.
USCIS considered the advantages of a lease to purchase (LTOP) plan approach
versus a direct purchase agreement. It determined the direct purchase would cost the agency
an up-front payment of $15,100,000 versus the total LTOP cost of $17,364,825, which
would be spread out in annual payments over a five-year period. After deriving the cost of
the two approaches based on present value, the agency determined that the direct purchase
would be slightly more expensive than the cost of an LTOP plan. The LTOP plan was thus
deemed to be the less expensive alternative, with the added benefit of budget flexibility. The
DHS Chief Financial Officer certified that funding would be available for the option years.
Appeal File, Exhibit 11.
USCIS prepared a limited source justification for the purchase of unlimited licenses.
This justification stated that:

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While other vendors provide similar software, only one, Siebel[,] can provide
the CDI capability required by DHS. In addition, Siebel is currently being
used in CIS for case management and other projects. A break or interruption
in service could jeopardize these projects. DHS has adopted Siebel UCM
software as a technical solution and it is noted in the DHS Technical
Reference Model. Also, as part of its ongoing technology initiatives, DHS is
pursuing a means of linking all of the DHS components through a common
data bus. Standardization of software across the enterprise will facilitate the
data consolidation process as well. Siebel is the only manufacturer of the
Siebel UCM software.
Appeal File, Exhibit 12. USCIS decided that this purchase would also be effected through
Merlin.
Merlin’s GSA Schedule Contract Terms
With respect to leases of software under special item number (SIN) 132-3, Merlin’s
schedule contract, GS-35F-0783M,5 provided:
2.

STATEMENT OF ORDERING ACTIVITY INTENT:

(a)
The ordering activity and the Contractor understand that a delivery
order issued pursuant to this SIN is a lease arrangement and contemplates the
use of the product for the term of the lease specified in such delivery order
(the “Lease Term”). In that regard, the ordering Activity, as lessee,
understands that the lease provisions contained herein and the rate established
for the delivery order are premised on the lease provisions contained herein
and the rate established for the delivery order are premised on the ordering
Activity’s intent to fulfill that agreement, including acquiring products for the
period of time specified in the order. Each lease hereunder shall be initiated
by a delivery order which shall, either through a statement of work or other
attachment, specify the product being leased and the required terms of the
transaction.
(b)
Each ordering activity placing a delivery order under the terms of this
option intends to exercise each renewal option and to extend the lease until

5

Merlin’s schedule contract was effective for the period from September 13,
2002, through March 13, 2008. Appeal File, Exhibit 3.

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completion of the Lease Term so long as the need of the ordering activity for
the product or functionally similar product continues to exist and funds are
appropriated. Contractor may request information from the ordering activity
concerning the essential use of the products.
Appeal File, Exhibit 3 at 11.
The USCIS Orders and Their Individual Terms and Conditions
BPA 850 and Delivery Order 851
Merlin’s quotation for the terms of BPA 850 and delivery order 851were adopted by
the Government. These terms included the following pertinent provisions:
- The rights of the Government to terminate this Agreement under (a) and (b)
above shall apply only to the entire Contract, including any renewals thereof,
and not allow individual product terminations or partial terminations.
- Termination Provisions: Merlin’s Software Purchase Plan (SPP) allows
termination for convenience (in accordance with FAR 52.212-4) and
termination for unavailability of funds. Related to a termination for
convenience, the SPP Agreement provides for a ceiling on the financial
obligation of DHS equal to the present value of the remaining unpaid Payment
Amounts due during the contract term (including all option periods),
discounted at the term equivalent U.S. Treasury (H.15) T-bill rates (currently
3.30% for a four year term) as of the date of the Product/Service Order (PSO)
less any SPP payment made to the date of such termination.
- Except as expressly provided otherwise in this agreement, (i) all remedies
available to either party are cumulative and not exclusive; and (ii) termination
of this agreement or any license shall not limit either party from pursuing
other remedies available to it, including injunction relief. Upon termination,
all amounts owed under this Agreement and all schedules shall immediately
become due and payable.
- The Government warrants that the use of the Software is essential to the
Government’s proper, efficient and economic operation for the full Contract
term and any renewals entered into thereafter. The Government has provided
required information relative to the essential use of the Software including,
but not limited to, a description of the currently identified applications to be

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supported, planned life-cycle operations of the Software and OMB [Office of
Management and Budget] budget requests for the Contract Term.
- Should the Contract be terminated due to non-appropriation of funds, the
convenience of the Government, or non-renewal, the Government agrees not
to replace the software licensed under the Contract nor pursue outsource
contracting with functionally similar software or services during the remaining
Original Contract Term.
Appeal File, Exhibit 51 at 144, 168, 172.
The parties agreed to the following restriction with respect to the exercise of yearly
options:
The Government, by placing the . . . order, agrees to use its best efforts to
obtain funds for each option period and to extend the lease until the
completion of the full lease term, so long as the bona fide need of the
Government for the system or functionally similar products or services
continues to exist in each fiscal year.
Appeal File, Exhibit 51. These provisions were proposed by Merlin to address the concerns
of Hitachi Capital America Corp. (Hitachi), Merlin’s financing source, that the products
were essential and would be in use for the full contract term and any renewals, thus creating
reasonable assurance that the options would probably be exercised. Transcript at 55-56,
430.
The first order, delivery order 851, contained one contract line item to lease a suite
of twenty-seven Siebel commercial-off-the-shelf (COTS) information technology products
and support services from Merlin. Part of this suite was the UCM, with a quantity of forty
million licenses. Appeal File, Exhibit 51; Transcript at 489.
According to the acting CIO, who spearheaded the agency’s decision to purchase the
Siebel UCM, the Government’s primary intent in executing delivery order 851 was to
develop and service a case management system for USCIS. Transcript at 728. The
subsequent order for unlimited licenses was to accommodate the projected large scale
growth in the system. Id. at 775.
On July 31, 2004, the contracting officer issued modification 0001 to delivery order
851, changing the period of performance to the period from July 20, 2004, through July 19,
2005, with four consecutive option years. Appeal File, Exhibit 51 at 158.

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On December 3, 2004, the Government issued a stop work order for all work
associated with BPA 850 and task order 851. The contracting officer advised Merlin that
the Government wanted to restructure the BPA and task order. Appeal File, Exhibit 51 at
211.
Thereafter the Government and Merlin discussed making modifications to the terms
of the BPA and delivery order 851. Transcript at 490-91, 799-800. The contracting officer
explained that his objective was to ensure clarity with respect to the options and to ensure
that the Government retained its unilateral right not to exercise an option if not supported
by appropriations or a bona fide need. Transcript at 586-87.
On January 28, 2005, the contracting officer sent the following e-mail message to
Merlin:
DHS/CIS still anticipates a need for Siebel products but is not in a position
from a technical or financial standpoint at this time to entertain requirements
past this current fiscal year. DHS/CIS currently has aligned funding for Siebel
products in the amount of $3 mission for fiscal year 2005. DHS/CIS is
requesting Merlin identify the array of Siebel licenses and products that can
be purchased this fiscal year with the $3M. With the licenses in place, CIS
will have the ability to test those products and determine if the Siebel product
will meet their current and future needs.
The e-mail message also requested a per record unit price for licenses based on a sliding
scale for quantities and stated that DHS would like to see a ceiling or a cap on the number
of records for which it was charged. Finally, the message stated that USCIS would like to
“renegotiate the terms and conditions of the current BPA and structure the BPA with
options,” creating a vehicle against which the agency could “place orders for existing and
future needs enterprise wide.” Appeal File, Exhibit 51at 213.
By letter dated January 31, 2005, Merlin’s president responded to the contracting
officer’s inquiry as follows:
As we stated in our prior correspondence, Merlin and its assignee, Hitachi
Capital America Corp., have already paid Siebel in full for all of the software
described in the above referenced task order [delivery order 851] in reliance
upon the software purchase plan terms in the order. All specific software was
delivered by Siebel and accepted in full by the Government. Accordingly, the
request outlined in your letter to modify the existing contract structure [is]
unacceptable and rejected.

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Appeal File, Exhibit 51 at 211.
After considering Merlin’s response, and consulting with the program office and
DHS’s Office of General Counsel, the contracting officer responded to Merlin by letter
dated February 4, 2005, expressing disappointment that it had not been possible to reach
agreement on a restructuring of delivery order 851. The contracting officer added that DHS
had determined that payment of $3,000,000 was the payment due for the base period of July
19, 2004, through July 20, 2005. The contracting officer advised that DHS still desired to
modify the terms of the BPA by clarifying the nature of the options and outlining procedures
relative to exercise of the options. Finally, the contracting officer rescinded the stop work
order and confirmed that payment had been authorized and should be received within seven
days. The contracting officer further stated, “We intend to issue a modification to the
Government Order clarifying the nature of the options and outlining procedures relative to
the exercise of the option.” Appeal File, Exhibit 51 at 209.
The contracting officer explained in his testimony that, after consulting with DHS’s
Office of General Counsel and the requiring activity, he had concluded that the terms of
delivery order 851 effectively precluded DHS from partially terminating the order. He was
concerned that if the Government had terminated the order for convenience, it would still
have been required to pay the full amount of the LTOP lease due to the order’s termination
schedules as set forth in the terms Merlin proposed and to which USCIS agreed. He
determined that it would be in the Government’s best interest to proceed with the order since
there was a requirement for some of the products and services. Given that the order called
for a suite of products, some of which the Government did require, and, in the agency’s
judgment, it could not partially terminate the order, DHS exercised its options for all four
years under that order. Transcript at 488-89, 496.
On September 13, 2005, USCIS’s Office of the CIO (OCIO) completed a “PersonCentric Software Solution Market Study.” USCIS concluded that its goals would best be
met by the implementation of a “person-centric” software data management tool, in which
information across a wide variety of databases and files could be searched and assembled
in a manner that would make information more useful in terms of both content and
timeliness. The study identified and compared leading software providers of customer data
integration software solutions. After evaluating three such suppliers, the study determined
that the Siebel Systems UCM offered a mature product with proven technical advantages
that translated into reduced program risk for development of a person-centric records system
at a lower lifecycle cost. Appeal File, Exhibit 6.
The contracting officer initiated negotiations to modify BPA 850’s general terms and
conditions in order to address the agency’s concerns about potential liability should it not

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be in a position to exercise an option or need to achieve a partial termination of an order.
DHS believed that under the terms of BPA 850, as written, it would have had to make
payment in full even if it had terminated the order or not exercised an option. Transcript at
517-19.
Effective September 21, 2005, the parties entered into bilateral modification P0001
to BPA 850. This modification revised the statement of work and terms and conditions
applicable to government orders issued under the BPA. The modified contractual terms
were proposed by the Government. The negotiations preceding the modification were
participated in by attorneys for Merlin, DHS, and Hitachi, which at that time was the
financial institution used to finance software purchases by Merlin. Transcript at 854-56.
Hitachi’s attorney testified that the goal of the financing company was to minimize the risk
that the Government would change its mind about completing the lease transaction and
choose not to renew. The language proposed by DHS was similar to terms and conditions
generally approved by financing institutions that purchase revenue streams associated with
LTOP transactions. Id.
The following terms and conditions were included in the modification of BPA 850:
Section C.1.1 described the history and objectives of USCIS’s business
modernization program:
The USCIS IT Transformation is a comprehensive program that will migrate
USCIS to a modern world-class digital processing capability, enhance national
security, improve customer service and responsiveness, better prevent future
backlogs, and improve efficiency and effectiveness.
DHS has validated that the current cumulative total of records across their
legacy systems is estimated in excess of 500 million records. In order to
support the growing needs of records, DHS [US]CIS will look to either
purchase or lease a DHS-Wide unlimited perpetual use site license that will
cover all existing records as well as future growth.
Appeal File, Exhibit 7 at 25.
Section H.10, which sets forth the terms and conditions applicable to lease to
ownership plans, became applicable to all orders issued under the BPA after September 21,
2005, the date of the modification:

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These Lease to Ownership Plan Terms and Conditions, as provided by the
Government (the “LTOP Terms”) are made a part of this BPA and shall be
incorporated in future Government Orders by reference. The Government
Order and any renewal thereof refers to the ordering document between the
Department of Homeland Security (the “Government”) and Merlin Technical
Solutions, Inc.6 (“Contractor”) for the acquisition of the System specified
herein. The Government shall elect a Lease to Ownership Plan (“LTOP”)
with a period of performance, payment schedule, dollar amounts, system and
lease term shall be specified per each individual Government Order.
Section H.10.3 provides in pertinent part:
The Government warrants that the use of the System is essential to the
Government’s proper, efficient and economic operation for the anticipated
lease term. Prior to acceptance of the Government Order, the Contractor will
require written information from the Government to establish and document
the essential use of the System. Such information would include, but is not
limited to, a description of the use of the System, the essential Government
activities provided by the System and planned life cycle for the System.
Section H.10.4 provides:
The Government has contemplated this LTOP and understands that a
Government Order issued hereunder is a lease arrangement and contemplates
the use of the System for the base period and any option periods as set forth
in each individual Government order. The parties agree that this LTOP does
not require, and should not be interpreted as requiring, either party to take any
action or perform any covenant under this LTOP that is contrary to the AntiDeficiency Act or other federal law. Accordingly, the Government Order
shall not be deemed to obligate succeeding fiscal years or otherwise commit
the Government to continue performance beyond the current Government
fiscal year.
Contractor shall provide the System to the Government pursuant to the terms
of the Government Order. To carry out this LTOP, the Contractor will be
supplying the system to the Government in anticipation of the Government
leasing the System for the full Lease Term. The Government agrees that its

6

Merlin Technical Solutions, Inc. is now Merlin International, Inc.

11

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continued right to use the System is conditioned upon its compliance with the
terms and conditions of the Government Order. The Government, as lessee,
understands that the lease conditions contained herein and the rate established
for the Government Order are premised on the Government’s intent to fulfill
the terms of the Government Order.
Contractor agrees to accept Payment Amounts provided under this LTOP in
order to obtain the bargained for purchase price (System Price) for the System
delivered, as set forth in the Government Order, and confers on the
Government the right to make lease payments for the items delivered pursuant
to and in reliance on the terms of this LTOP, the essential use information
provided by the Government, and terms contained herein.
Section H.10.5 provides in pertinent part:
The Government, by placing the Government Order, intends to exercise each
option and to renew the lease until completion of the Lease Term so long as
the need of the Government for the System or functionally similar product or
services continues to exist and funds are appropriated.
Section H.10.8 provides in pertinent part:
The Government has the option to renew the Government Order for
subsequent fiscal years beyond the initial fiscal year. Once an option is
exercised, the Government Order will be renewed for the relevant option
period. The Government, by placing the Government Order, agrees to use its
best efforts to obtain funds for each option period, and to extend the lease
until completion of the full Lease Term, so long as the bona fide needs of the
Government for the System or functionally similar products or services
continues to exist in each fiscal year. Because of this commitment, [the]
Government is receiving favorable pricing which is not normally available.
The Government’s Contracting Officer shall provide notice of its intent to
exercise the option 30 days prior to the expiration of the option period
outlined in each individual Government Order. If the Government elects to
exercise an option, a modification to the Government Order will be issued.

12

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Notwithstanding the terms of Section H.6.0[7] , the Government may elect not
to exercise an option and not renew the lease at the end of the initial base
period or any subsequent option period under this paragraph if it (a) no longer
has a bona fide need for the System or functionally similar products; or (b)
there is a continuing need but adequate funds have not been made available
to the Government in an amount sufficient to make the Payment Amounts. If
this occurs, the Government will promptly notify the Contractor, and the
Government Order will not be renewed and will terminate at the end of the
last fiscal year for which funds were appropriated.
Section H.10.10 sets forth the terms applicable to a termination of the lease in relevant part:
Government orders may not be terminated except by the Government’s
contracting officer responsible for the Government Order pursuant to FAR
52.212-4 . . . . The Government reasonably believes that the bona fide need
will exist for the base period and each option period and corresponding funds
in an amount sufficient to make all payments for the Lease Term will be
available to the Government. Therefore it is unlikely that leases entered into
under this LTOP will terminate prior to the full Lease Term.
If a Government Order expires or terminates prior to the expiration of the
Lease Term set forth in the Government Order for any reason, the
Government agrees not to replace the system leased under the Government
Order with functionally similar equipment and/or software for a period of one
(1) year after such expiration or termination. Upon such expiration or
termination, the Government’s rights to the System are extinguished and the
Government agrees to return the System to the Contractor in accordance with
H.10.13.
Appeal File, Exhibit 7.
The modification of BPA 850 also stated that:
The GSA terms and conditions included in this BPA, or incorporated by
reference, apply to all purchases made pursuant to it. In the event of an

7

Section H.6.0 sets forth the text of Federal Acquisition Regulation [FAR]
clause 52.217-9 (Option to Extend the Tem of the Contract (Mar. 1989)).

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inconsistency between this BPA and the contractor’s GSA Schedule(s), the
provision of the GSA Schedule shall take precedence.
Appeal File, Exhibit 7.
Award of Order for Unlimited Licenses
On September 12, 2005, Merlin and Hitachi held a telephone conference call with the
Acting USCIS CIO, who confirmed that USCIS had spent some eighteen months doing
market research on vendors and technical solutions available to facilitate the combining of
information from the numerous legacy systems used by the agency, each of which
maintained limited information and could not interact with other systems or each other. She
said that USCIS selected the Siebel system because it puts all data about a single person on
one record, which would enhance the agency’s ability to identify individuals who may
present security concerns and which would lead to improved service in terms of issuing
green cards and processing citizenship applications. When asked about the chance that the
software would no longer be needed during the lease term, the Acting CIO replied that,
based on these studies, she believed the system needs would only grow. Supplemental
Appeal File, Exhibit 60.
On December 30, 2005, DHS entered into delivery order number HSHQDC-06-J-34
(delivery order 34) with Merlin. The order was issued under the modified BPA 850. It
provided for an LTOP arrangement, with the base period to run from December 31, 2005,
through December 2006, and to continue for four option years. For the base year, the lease
payment was $3 million. The first option year provided for a payment of $4,500,000; the
remaining three option years provided for payments of $3,288,375 each. Appeal File,
Exhibit 2.
A notice of assignment to Hitachi Capital America Corporation of the proceeds due
Merlin under delivery order 34 was hand delivered to the contracting officer on
December 30, 2005, along with an instrument of assignment executed by Merlin. Appeal
File, Exhibits 27-29. Thereafter, Hitachi resold the proceeds to Citizens Leasing
Corporation doing business as Citizens Asset Finance (Citizens), but did not file another
notice of assignment. Merlin had no involvement in the resale of the proceeds by Hitachi
to Citizens. Transcript at 90.
The contract between Hitachi and Citizens contained language obligating Hitachi to
pursue, on Citizens’s demand, a claim for damages under the Contract Disputes Act should
the contract, and its expected income stream, expire prematurely. Supplemental Appeal File,
Exhibit 61.

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Before agreeing to purchase the proceeds from Hitachi, Citizens undertook to assess
the risk inherent in the transaction. It reviewed the due diligence material available,
including a USCIS “Solution Justification,” which it provided to outside counsel for an
opinion. In addressing potential risks, Citizens’s outside counsel noted that, among other
things, Congressional approval of information technology modernization efforts did not
reflect “a particularly strong statutory-regulatory mandate for the Customer Data Integration
Solution.” It was also noted that organizational instability at DHS could affect USCIS or
result in funding being redirected. Supplemental Appeal File, Exhibit 62.4.8
Between September 2005 and May 2006, USCIS conducted a “Data Integration Proof
of Concept.” A proof of concept represents a limited and incomplete implementation of an
information technology or business process to evaluate its feasibility and to verify that the
technology or process is of value. Respondent’s Hearing Exhibit 71 at 8; Supplemental
Appeal File, Exhibit 68; Transcript at 740-41. The proof of concept was intended to test the
Siebel UCM’s ability to accomplish data integration among the legacy systems. The most
notable functions to be tested by the proof of concept were: matching, cleansing,

8

This letter was submitted to the Board in Merlin’s Rule 4(d) submission, in
Exhibit 62, Tab 4, which consisted of twelve pages. It was included in documents provided
by Citizens to Merlin for purposes of preparing the supplemental appeal file. When counsel
for Merlin realized that this letter, and a subsequent update, written by outside counsel for
Citizens, had been included, he moved to compel their return as documents covered by the
attorney-client privilege that had been inadvertently included in Merlin’s Rule 4(d)
submission. Respondent objected, noting among other things that the letter sought advice
about business matters, and that if any privilege had attached, it had been waived. The
presiding judge denied the motion, concluding that even if the privilege were applicable,
appellant had not met the standards applicable to Federal Rule of Evidence 502 (addressing
inadvertent disclosure of privilege documents). To the extent that appellant has asked us to
reconsider that ruling on grounds that the document is not relevant, we decline to do so.

CBCA 1012, 2570

16

correlation, and resolution of inconsistencies in records.9 The proof of concept was not
completed at the time the order was awarded in December 2005.
Of the numerous existing legacy systems, the core system in the integration process
is known as the Computer Linked Alien Information Management System 3 Local Area
Network, or CLAIMS 3 LAN. The CLAIMS 3 LAN system manages intake of petitions
and applications across USCIS and operates as a hub, providing the business processes
associated with the large number of subsidiary systems that contribute to the adjudication
or approval of benefits. The immigrant information maintained in CLAIMS 3 LAN is
critical to every other business process represented in the legacy systems and thus was the
focal point for the integration effort. In particular, the CIO testified that the “ability to
integrate CLAIMS 3 LAN is a fundamental requirement for any data integration effort, and
the information contained in CLAIMS 3 LAN is an absolute requirement for any customer
master record that would be enterprise-wide in nature.” Transcript at 1144-48; Hearing
Exhibit 71.
The proof of concept tested the Siebel system with five legacy systems, but did not
include CLAIMS 3 LAN. The contractor who spearheaded the proof of concept effort
explained that the intent was to demonstrate that the legacy systems would feed data to the
UCM and the UCM would perform its various functions. The proof of concept exercise
started with CLAIMS 3 LAN, but it was quickly determined that the application was too
brittle to use for this purpose. Instead the contractor developed an abstract of that database
which was referred to as CLAIMS 3 LAN Repository. The proof of concept ultimately did
show that the Siebel software could read input from the limited number of systems that were
tested. It did not demonstrate a two-way integration function, however. Transcript at 1160­
61.

9

The Siebel UCM system supports eleven functions. In particular, it supports
unified customer data across multiple databases and functionally disparate systems to
generate a single, trusted, authoritative source of customer data across the enterprise. It also
provides a rules-based means to automate the quality of the master data by comparing data
to its source and age to determine whether to maintain or update it. Its cross-referencing
function allows identification of customer data in external systems to be saved in the UCM.
The Siebel system also creates a best version record based on the current best state of
customer data stored in the UCM. The source data history table maintains a record of data
transactions between the UCM and registered external systems. The UCM supports data
cleansing and data matching using third-party software. Hearing Exhibit 71.

CBCA 1012, 2570

17

Not all potential technical impediments to implementation of the Siebel UCM were
addressed during the proof of concept process, Transcript at 737, 1143-44, which was not
intended to resolve all potential problems. Transcript at 1463. The Acting CIO and the
contractor both agreed that some technical issues would have to be resolved down the road.
The Acting CIO was satisfied that the proof of concept showed that USCIS’s data
integration goals would work, but would present some technical challenges. Transcript at
740-41.
The Acting CIO testified that at the time the unlimited licenses were ordered, USCIS
was anticipating growth of three new requirements that were being developed. The first was
the Guest Worker Program, under which non-citizens would enter the country and work for
a period of time. The second requirement was the Real ID Act of 2005, which created a
requirement for tracking immigrants through state drivers licenses, and the third requirement
was for digitization of paper immigrant records to make the records more accessible.
Transcript at 749. These requirements were “primary drivers” underlying the decision to
acquire unlimited Siebel UCM licenses. Transcript at 774.10
The Acting CIO testified that she understood the term “bona fide need” to mean
there is a solid requirement that must be satisfied. During her tenure as Acting CIO, she
regarded the Siebel software as fulfilling a bona fide need of USCIS. Transcript at 771.
In April 2006, just prior to completion of the proof of concept, the Acting CIO left
USCIS. Transcript at 717. In May 2006, a permanent CIO was appointed to replace the
Acting CIO. Respondent’s Hearing Exhibits 71, 84; Transcript at 1138.
The new USCIS CIO undertook to familiarize himself with the status of existing
USCIS legacy systems and the requirements for IT modernization and development within
the organization. An outside audit of the CLAIMS 3 LAN systems currently in place

10

These anticipated legislative initiatives did not materialize as envisioned.
Hearing Exhibit 71.

CBCA 1012, 2570

18

showed them to be extremely antiquated and incompatible with the Siebel UCM.11
Transcript at 1148-49.
In conjunction with his review of the UCM purchase, the CIO analyzed the results
of the proof of concept exercise. The CIO testified that USCIS had intended to implement
a service-oriented architecture characterized by the ability of multiple entities or systems
within the architecture to exchange messages with each other. This type of system is
normally implemented using an enterprise service bus. For USCIS, the service bus was
provided by TIBCO Software Inc. TIBCO allowed the various databases and systems to
communicate and exchange messages. The Siebel UCM is designed to be connected to an
enterprise service bus, which facilitates the exchange of messages with other entities on the
bus concerning customer data information, ultimately achieving the integration of that
information. The messages that can be exchanged in this environment are grounded in a
language known as XML (extensible markup language), which is proprietary to Siebel.
XML messages operate on a two-way basis to provide integration services and to develop
an overall profile of a customer, or immigrant, by creating a universal master record for that
person. The proof of concept demonstrated the ability to aggregate, but not to integrate,
information about a customer. In essence the communication ran only one way. This was

11

The CIO explained that one of the most significant obstacles in working with
the old legacy systems, particularly CLAIMS 3 LAN, was that they were extremely
antiquated -- “not just old, not just antiquated, not just obsolete.” He elaborated that:
Siebel UCM is designed to interoperate with systems that . . . have
contemporary obsolescence, that . . . are obsolete in the modern sense. That
even though they are obsolete and outdated, . . . the technology is not so old
and unworkable that it can’t work with UCM.
A file structure based system on a main frame that is not a relational database,
such as CLAIMS 3 mainstream main frame, or CIS -- those present technical
obstacles. They are not unworkable technical obstacles. They can be
overcome. However, as you go further and further back in time, upon which
the technology base of a system is, you reach a point where the system
becomes so old and antiquated that [it] is unable to be effectively interfaced
by UCM without an extraordinary amount of very expensive technological
duct tape. That the technological duct tape could be applied is realistic, but
the quantity is so extreme and costs so much that it is impractical and
unreasonable.
Transcript at 1169.

CBCA 1012, 2570

19

largely due to the antiquity of CLAIMS 3 LAN, which effectively hampered this important
legacy system from participating in the overall architecture. Transcript at 1157-62.
On November 10, 2006, the new CIO sent a memorandum to the contracting officer
on the subject of the upcoming option exercise for delivery order 34. He advised that he had
“reevaluated the Transformation Program and how the Siebel unlimited Universal Custom
Master (UCM) licenses fit into it” and had taken “into consideration the capability of the
base product with 40,000,000 UCM licenses.” He reached the conclusion that “USCIS has
no bona fide need for the unlimited UCM licenses.” He went on to state that “I am notifying
you that USCIS does not intend to provide funds for DHS to exercise option one for the
unlimited UCM licenses available on the DHS-wide contract.” Appeal File, Exhibit 32.
This communication generated exchanges within DHS concerning whether a “bona
fide need” for the software existed. On January 30, 2007, the USCIS CIO sent a
memorandum to the DHS CIO detailing his concerns about continuing to pay for unlimited
licenses of the Siebel UCM software. He stated that his conclusion was predicated on a
careful analysis of the supporting documentation generated for the acquisition: (1) the
acquisition plan; (2) the limited source justification; and (3) the sole source justification.
Based on his review, the CIO concluded as follows:
1.
I believe that a reasonable understanding and interpretation of the
challenges confronting USCIS, and the assumptions made, reasonably
justified a bona fide need for an expansion of the base 40 million licensing to
an unlimited licensing for this product at the time the order was requested by
my predecessor.
2.
I believe that as the understanding of USCIS’ needs evolved, some
base assumptions made at the time of order have been found to be no longer
valid.
3.
I believe that with several base assumptions proving not to be valid, as
well as the subsequent change in strategy by the USCIS Transformation
Program Office, such factors fundamentally change the context upon which
the acquisition plan, limited source justification, and sole source justification
are based.
4.
I believe the USCIS Transformation Program Officer’s change in
strategy is based on this better understanding of need and as such a bona fide
need for this license expansion modification no longer exists.
Appeal File, Exhibit 39.

CBCA 1012, 2570

20

Elaborating on his explanation, the CIO observed that the acquisition plan confused
the terms “CRM [Customer Relationship Management] tool” and “CRM data management
tool.” In his view, the terms reflected two distinct needs. The base need for a CRM tool had
been satisfied with the base contract quantity of 40 million licenses under delivery order 851.
The need for a “CRM data management tool” reflected the assumption that a need existed
to obtain a technology vehicle to enable the search for “person-centric” information across
a wide variety of databases and files using one query term and assembly of that information
into one record that makes the data more useful to the end user. The CIO explained that this
assumption was invalid because it was based on the belief that a wide variety of usable data
bases existed and that the diversity of data contained in these databases is desirable. After
reviewing the procurement, he determined that the variety of databases in existence at
USCIS were “fundamentally unusable in a modernization effort because of their
obsolescence and irresolvable security deficiencies.”12 This assessment was concurred in
by both DHS and non-DHS oversight organizations. Appeal File, Exhibit 39.
This evolving understanding of the deficiencies in existing data systems caused the
new CIO to modify his organization’s approach, to focus on accelerated retirement,
abandonment, and replacement of the large number of legacy systems, rather than on the
synchronization of information in obsolete systems. Appeal File, Exhibit 39. Before
following through with the decision to decline to exercise the option, however, all CIOs at
DHS were queried as to whether any other office had a bona fide need for the product.
None of the other program offices identified a need for the Siebel UCM product. The
contracting officer further confirmed that there was no need for the UCM within all of DHS
before proceeding with the decision to decline the option renewal. Transcript at 675, 1230.
The CIO also testified that the unlimited licenses purchased in the base year had not
been used and further affirmed that, to the best of his knowledge, USCIS had not made any
significant use of the 40 million licenses under delivery order 851. That order was fully
executed as to the option years because the language of the original order provided no option
to terminate in part and USCIS was in fact using some of the products acquired under that
order for purposes unrelated to customer data integration.
By letter dated November 30, 2006, the contracting officer, pursuant to the terms of
delivery order 34 and modification P001 to BPA 850, formally notified Merlin that DHS did
not intend to renew delivery order 34 for 2007, 2008, or subsequent periods. The stated
reason was that the Government no longer had a bona fide need for the system or for
functionally similar products or services. Supplemental Appeal File, Exhibit 64.

12

Many of the systems in use by USCIS dated back to the mid-1980s and early
1990s. Hearing Exhibit 71.

CBCA 1012, 2570

21

Merlin’s general counsel responded, in a letter dated December 19, 2006, proposing
an alternative payment plan for the products purchased in delivery order 34. In a letter dated
December 26, 2006, the contracting officer acknowledged Merlin’s offer and advised that
the Government’s position that it had no bona fide need for the products remained
unchanged. Following additional exchanges with Merlin, on January 31, 2007, the
contracting officer reaffirmed this position. Appeal File, Exhibits 66, 69-70.
Finally, after conducting several in-person meetings with Merlin and Siebel
specialists, the contracting officer followed up with a letter to Merlin dated April 20, 2007:
As a result of our meeting on February 27, 2007, a follow up meeting was
held with [various individuals representing DHS, Siebel, and Oracle]. [The
Siebel/Oracle representative] described Oracle and Siebel functionality and
presented an alternative strategy. Notwithstanding [these] options, the
government’s position remains unchanged. As stated in our letters dated
November 30, 2006, December 26, 2006, and January 31, 2007, the
government no longer has a bona fide need for the System or functionally
similar products or services.
Appeal File, Exhibit 42.
On July 27, 2007, Merlin’s vice president and chief operating officer formally filed
a claim under the Contract Disputes Act (CDA), asserting that the failure to exercise the
option for option year one was a breach of contract and claiming entitlement to the amount
of $14,364,835 plus interest. On October 10, 2007, the DHS contracting officer denied the
claim. Appeal File, Exhibits 1, 49.13
The Government proffered two experts at the hearing -- the new CIO, who was
qualified to testify as an in the fields of large scale system integration and organizational
transformation, and a contractor who had worked with both the acting CIO and the new
CIO. The contractor was qualified to testify as an expert in the field of customer data
integration and in the USCIS legacy systems. The CIO explained that USCIS did not, in his
view, have a bona fide need for the Siebel UCM or functionally similar software during
fiscal year 2007. He determined this based on two premises:

13

In the letter denying the claim, the contracting officer pointed out that the
certification affixed to the claim referred to a contractor other than Merlin. On October 24,
2007, Merlin resubmitted the claim with a corrected certification. Supplemental Appeal
File, Exhibit 67.

CBCA 1012, 2570
1.

Because of the technical obstacles to implementing UCM on
[USCIS’s] legacy systems (particularly the seven CLAIMS 3 LAN
systems) USCIS was not technologically positioned to effectively use
a CDI tool to the extent where an excess of 40,000,000 customer
records [licenses] would be used/accessed by UCM in the next year.
Since it could not be effectively used, no bona fide need existed for
Siebel UCM; and

2.

USCIS was not positioned to effectively use any CDI tool for the next
year (in 2007) so that use of any product with similar functionality
would not be required.14

22

Hearing Exhibit 71. In essence, in the view of the CIO, these premises required a shift in
strategy from refurbishing the existing legacy systems to replacing them. Based on his
assessment, in 2007, USCIS had no practical way to make use of the material functionality
of the Siebel UCM or any other similar CDI tool offered by another vendor. Hearing
Exhibit 71.15
“Substitute” Software Applications
Merlin’s expert, who was proffered as an expert in systems integration, agreed that
in 2007 USCIS did not develop a master record for each customer and did not implement
any system that could have achieved a “person-centric” solution, or develop a single system
containing a trusted, authoritative record for each immigrant. Transcript at 989-93, 1014.
Merlin’s expert testified, however, to his opinion that DHS worked around the Siebel UCM
system to achieve functions similar to those offered by the Siebel UCM. Specifically, he
identified certain software applications, such as Person-Centric Query Service (PCQS),
Secure Information Management Service (SIMS), Electronic Data Management Systems
(EDMS), Central Indexing System (CIS), and CIS Consolidated Operational Repository
(CISCOR). In his view, these applications achieved a degree of functional similarity,
although not functional equivalence. Hearing Exhibit 69 (Merlin’s Expert Report);
Transcript at 932-48.

14

The contractor who worked on the TIBCO enterprise bus also explained that
the eleven functions of the Siebel software are inherent in the software and it is not possible
to acquire these discrete functions on a piece-by-piece basis. Transcript 1431-32, 1439-40.
15

The Government’s expert report was authored jointly by the CIO and by the
contractor who maintained the TIBCO enterprise bus under the Acting CIO, participated in
the proof of concept, and now performs other IT work as a contractor for USCIS.

CBCA 1012, 2570

23

The USCIS CIO testified that as he understood the term, there were no products that
were “functionally similar” to the Siebel UCM that could have met the Government’s needs
in fiscal year 2007.16 He stated that the problems inherent in integrating CLAIMS 3 LAN
into the Siebel UCM would be common to any customer data integration tool. Replacement
was simply not possible because the underlying problem with the extremely antiquated
legacy systems was not mitigated by a modern customer data integration software tool.
There was no functionally similar software that would work any better. Transcript at 1170­
71.
The CIO also testified that the individual applications Merlin contends are substitutes
for the UCM cannot effectively integrate data, which is the principal feature offered by the
Siebel system. In the view of the CIO, functionally similar software would be a tool that
provides the same material functions as the predominant material functions of the Siebel
software. Transcript at 1172. The CIO addressed each application at the hearing.
PCQS is a query service which allows users to submit a single query (such as an
immigrant’s name) across six USCIS and Department of State systems and pull up all
records concerning the named individual. This system does not merge or unify these
records; it simply pulls them up, aggregates the record in temporary memory until returned
to the requester, and then discards the data. Hearing Exhibit 71. One of the Government’s
experts was the designer of the PCQS system. He analogized this tool to a Google search,
which retrieves the records containing the terms that are queried but does not evaluate or
integrate the records. Transcript at 1486-88. As such, the Government’s experts attested
that PCQS did not duplicate the functionality of the Siebel UCM.
EDMS is a subcomponent of USCIS’s Integrated Digitization Document
Management Program, intended to allow USCIS to digitize its paper-based files. EDMS is
simply a repository of digitized documents. In contrast to the Siebel UCM, it has no
capability for data integration or data cleansing. Hearing Exhibit 71; Transcript at 1488-89.

16

The CIO testified that he understood the term “functionally similar software”
to denote software whose features predominantly reflected the same material functions of
the purchased software. It would not be enough to provide incidental, or only a few,
features in common with the Siebel UCM. Transcript at 1171-72. In the relevant time
period (2006 and 2007), there were approximately eight companies with products that
competed with the Siebel UCM. These included Oracle (which eventually retired its own
product to focus on Siebel), SAP, Dandrite International, VisionWare, SeeBeyond, DWL,
Initiate Systems, and Siperian. Hearing Exhibit 71.

CBCA 1012, 2570

24

SIMS was a web-based information and case management service pilot intended to
assist USCIS in end-to-end processing of adoption applications. It was developed using a
completely different Siebel eBusiness application which does not perform the unique Siebel
UCM functions described in Siebel’s UCM guidebook. SIMS did not meet the requirements
for management of the adoption applications and was decommissioned in 2009. Hearing
Exhibit 71; Transcript at 1489-90.
The Second Appeal
On July 19, 2011, Merlin filed a second claim with the contracting officer, re-alleging
the same operative facts and formally adding a notification of the sale of the proceeds by
Hitachi to Citizens.17 On September 16, 2011, the contracting officer responded with a letter
stating that the issues raised in Merlin’s correspondence had already been fully litigated and
briefed at the Board. On September 23, 2011, Merlin filed a second appeal involving this
claim. Following a conference with counsel for the parties confirming the contracting
officer’s statement, the new appeal, CBCA 2570, was consolidated with the existing appeal
(CBCA 1012).
Discussion
Overview
In the process of modernizing its information technology systems, USCIS identified
a need for a software tool that would integrate disparate repositories of records (both on
paper and online), housed in some sixty legacy systems, into a single, searchable database.
After conducting market research, USCIS, through its Acting CIO, decided that the Siebel
UCM would best meet this goal. To this end, in July 2004, USCIS entered into a blanket
purchase agreement (BPA 850) with Merlin, a reseller of the Siebel software that USCIS
desired to purchase. USCIS issued an initial order (delivery order 851) against the BPA at
that time, purchasing, under a lease to purchase (LTOP) plan, a suite of Siebel products

17

The filing of this second claim was prompted by a decision issued by the Court
of Federal Claims, dismissing a contractor’s claim for lack of jurisdiction based on the
failure to notify the contracting officer in the claim letter that the future proceeds anticipated
under the LTOP transaction had been assigned to a financing institution, and reassigned
once more to another financing institution, without the contracting officer’s knowledge.
Since the contracting officer had no knowledge of either assignment, the court reasoned that
the claim was defective and dismissed the matter for lack of jurisdiction so that the
contracting officer could consider this information in ruling on the claim. Northrop
Grumman Computing Systems, Inc. v. United States, No. 07-613C (Fed. Cl. June 23, 2011).

CBCA 1012, 2570

25

including 40,000,000 licenses. After DHS became concerned that the terms and conditions
of the BPA might hinder its ability to partially terminate that order for convenience, it
entered into negotiations with Merlin to revise the original terms and conditions of BPA
850. These mutually agreed to changes were set forth in modification P0001.
Subsequently, on December 30, 2005, USCIS issued delivery order 34, under the
modified terms and conditions of BPA 850, for the purchase of a DHS-wide unlimited
perpetual use license for the Siebel UCM software. This was deemed necessary to support
existing records and all future growth. The purchase was similarly structured as an LTOP
plan with a base year and four option years. The modified terms and conditions provided
that the Government would use its best efforts to obtain funding and would extend the lease
until completion so long as the bona fide need of the Government for the system or
functionally similar products or services continued to exist in each fiscal year. In addition
the terms stated that:
The Government warrants that the use of the System is essential to the
Government’s proper, efficient and economic operation for the anticipated
lease term. Prior to acceptance of the Government Order, the Contractor will
require written information from the Government to establish and document
the essential use of the System.
Merlin accepted the order, without obtaining written information from the
Government on the essential use of the system, and paid Siebel in full for the order with
financing obtained from Hitachi, which participated in the negotiation of the deal. Shortly
after that, Hitachi resold the payment stream to Citizens.
A few months after delivery order 34 was issued, a new CIO replaced the Acting CIO
and undertook a full review of the agency’s existing IT systems and plans to modernize.
When it came time to exercise the option for the first option year, the new CIO had
developed the view that the rapidly escalating problems with the antiquated legacy systems
necessitated an approach other than the acquisition of the Siebel UCM licenses, which he
believed would be expensive and impracticable to implement. He advised the contracting
officer that there was no longer a bona fide need for the unlimited Siebel licenses. The
contracting officer then notified Merlin that USCIS would not exercise the option for the
first option year. Merlin submitted a claim to the contracting officer, alleging the
Government had breached the LTOP terms and conditions. Merlin asserted that the
Government’s liability for that breach is the amount of $14,364,825, the amount it would
have received had all the options been exercised under the delivery order. The contracting
officer denied the claim on the ground that no breach of the lease agreement had occurred.

CBCA 1012, 2570

26

Merlin contends that lease terms were breached by USCIS’s refusal to exercise the
first option year because the underlying facts supporting the original determination of bona
fide need had not changed during the base year of the lease and the Government in fact used
substantially similar products during the first option year period. In addition, Merlin asserts
that the Government breached a warranty that it would need the Siebel UCM licenses for the
full term of the lease.
USCIS argues that because Merlin and Hitachi failed to effect a proper assignment
when Hitachi resold the proceeds to Citizens, the Board lacks jurisdiction over the claim.18
In addition, it maintains that there was no breach of the LTOP terms and conditions.
Anti-Assignment Acts Issue
USCIS’s argument focuses on the fact that while the transaction was originally
financed by Hitachi, with the contracting officer’s full knowledge and consent, Hitachi
resold the income stream to Citizens. No formal paperwork was executed notifying DHS
of this reassignment and seeking to substitute Citizens for Hitachi as the assignee of the
claims. DHS urges that this “defect” precludes Merlin from pursuing the claim.
The Assignment of Contracts Act, 41 U.S.C. § 15 (2006) (recently modified and
recodified at 41 U.S.C.A. § 6305 (West Supp. 2011)), and the Assignment of Claims Act,
31 U.S.C. § 3727, are frequently discussed in tandem (the Anti-Assignment Acts), since the
two Acts generally share common concerns.19 See Fireman’s Fund Insurance Co. v.
18

USCIS moved for summary relief on this issue and the parties cross-moved
for summary relief on the merits prior to the hearing. The Board’s decision also resolves
these motions, which were deferred because of disputed facts.
19

The Assignment of Claims Act provides, in subsection (b), that “[a]n
assignment [of any part of a claim against the United States Government or of an interest in
the claim] may be made only after a claim is allowed, the amount of the claim is decided,
and a warrant for payment of the claim has been issued.” Subsection (c) makes subsection
(b) inapplicable “to an assignment to a financing institution of money due or to become due
under a contract” provided certain conditions are met. The Assignment of Contracts Act
provides in subsection (a) that “[n]o contract . . . or any interest therein, shall be transferred
by the party to whom such contract . . . is given to any other party, and any such transfer
shall cause the annulment of the contract or order transferred, so far as the United States is
concerned.” Subsection (b) of that provision states that “[t]he provisions of subsection (a)
. . . shall not apply in any case in which the moneys due or to become due from the United
States or from any agency or department thereof . . . are assigned to a bank, trust company,
or other financing institution, including any Federal lending agency.”

CBCA 1012, 2570

27

England, 313 F.3d 1344, 1349 (Fed. Cir. 2002); Tuftco Corp. v. United States, 614 F.2d
740, 744 n.4 (Ct. Cl. 1980); General Heating & Air Conditioning, Inc. v. General Services
Administration, CBCA 1242, 09-2 BCA ¶ 34,256; Great Lakes Dredge & Dock Co.,
ASBCA 53929, et al., 04-1 BCA ¶ 32,518, at 160,863. These Acts were intended to prevent
fraud, particularly the buying up of claims against the Government; to protect the
Government from having to deal with multiple persons or strangers to the contract; and to
eliminate conflicting demands for payment and chances of multiple litigation and liability.
Great Lakes Dredge & Dock Co., and cases cited therein.
The circumstances raised by the Government do not divest the Board of jurisdiction.
The failure to execute the proper paperwork to reflect a second assignment of the proceeds
of the contract from one financing institution to another does not invalidate the claim.
Merlin, which filed the appeal, is still a proper party to pursue the breach claims. See
Beaconwear Clothing Co. v. United States, 355 F.2d 583, 591 (Ct. Cl. 1966); Northrop
Grumman Computing Systems, Inc. v. United States, No. 07-613C, slip op. at 4-5 (Fed. Cl.
June 23, 2011). There is no risk of multiple claims, since Citizens has no cause of action
against the Government in its own right. If appellant prevails, the Government’s liability
runs to Hitachi, which is separately obligated to reimburse Citizens under its own agreement
with that institution.
We note that the court in Northrop Grumman, while finding the contractor to be a
proper party to pursue that litigation, dismissed the appeal for lack of jurisdiction because,
while the proceeds had been resold to a financing institution, no assignment of claims had
been filed with the contracting officer and the claim letter did not disclose the sale of the
rights to the proceeds. The court was concerned that this information could have affected
the contracting officer’s decision and thus dismissed the case to permit the contracting
officer to consider it. In the subject appeal, the contracting officer was well aware of the
initial assignment of the proceeds to Hitachi, and the Government has not identified how
disclosure of the second sale might have affected the contracting officer’s decision.
Breach Claims
At the core of this dispute is whether, under the leasing terms and conditions agreed
to by the parties, the Government breached its contractual commitment by failing to exercise
the option for the first option year following completion of the base contract period. Merlin
contends that the contract as modified curtailed the agency’s discretion to discontinue the
lease and that, in this case, the stated conditions for justifying non-exercise of the option
were not met. Merlin also argues that the Government breached the lease by using

CBCA 1012, 2570

28

functionally similar software products during the year following the decision not to exercise
the option. In addition, even if the Government is deemed to have acted within its
prerogative to end the lease, Merlin asserts that it should still recover because DHS breached
its warranty that the Siebel software was essential to its efficient operation and that the
agency had and would continue to have a “bona fide need” for the Siebel licenses.
In general, the decision to renew under an LTOP plan is within the sole discretion of
the leasing party unless there is language in the leasing provisions that limits or restricts the
circumstances under which that party may unilaterally decline to exercise its option to renew.
Government Systems Advisors, Inc. v. United States, 847 F.2d 811, 813 (Fed. Cir. 1988);
Pacificorp Capital, Inc. v. United States, 25 Cl. Ct. 707, 717 (1992), aff’d, 988 F.2d 130
(Fed. Cir. 1993) (table); Innovative (PBX) Telephone Services, Inc. v. Department of
Veterans Affairs, CBCA 44, et al., 08-2 BCA ¶ 33,685,at 167,584 and cases cited therein.
It has also been recognized that an option may be restricted by agreed-upon contract
provisions, such as the limitations contained in BPA 850, as modified, and delivery order
34. See Northrop Grumman Computing Systems, Inc. v. United States, 93 Fed. Cl. 144, 149
(2010); Northrop Grumman Computing Systems, Inc. v. General Services Administration,
GSBCA 16367, 06-2 BCA ¶ 33,324, at 165,266.
This appeal requires us to decide whether the Government has breached the terms of
the delivery order by failing to exercise the first, and subsequent, options. Contract
interpretation begins with the plain language of the contract, which must be read in
accordance with its express terms and plain meaning. McAbee Construction, Inc. v. United
States, 97 F.3d 1431, 1434-35 (Fed. Cir. 1996); Foley Co. v. United States, 11 F.3d 1032,
1034 (Fed. Cir. 1993); TST Tallahassee, LLC v. Department of Veterans Affairs, CBCA
1576, 11-1 BCA ¶ 34,672 at 170,806; BGK Main Street Operating Associates v. General
Services Administration, GSBCA 16238, 04-2 BCA ¶ 32,658, at 161,654. The Board’s task
is to discern the intent of the parties at the time the contract was signed. KDI Development,
Inc. v. General Services Administration, CBCA 2075, 11-1 BCA ¶ 34,744, at 171,043
(citing Stockton East Water District v. United States, 583 F.3d 1344, 1362 (Fed. Cir. 2009)
(“Is our reading of the plain meaning of this provision consistent with the intent of the
parties at the time the contracts were executed, since contract interpretation is fundamentally
a question of the contracting parties’ intent?”); Cities of Burbank, Glendale and Pasadena
v. Bodman, 464 F.3d 1280, 1284 (Fed. Cir. 2006)).
In interpreting the language of a contract, reasonable meaning must be given all parts
of the agreement so as not to render any portion meaningless, or to interpret any provision
so as to create a conflict with other provisions of the contract. Fortec Constructors v. United
States, 760 F.2d 1288, 1292 (Fed. Cir. 1985); United States v. Johnson Controls, Inc., 713
F.2d 1541, 1555 (Fed. Cir.1983). In other words, “an interpretation which gives a
reasonable meaning to all parts will be preferred to one which leaves a portion of [the

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contract] useless, inexplicable, inoperative, void, insignificant, meaningless, superfluous,
or achieves a weird and whimsical result.” Arizona v. United States, 575 F.2d 855, 863 (Ct.
Cl. 1978); see also, e.g., Alliant Techsystems, Inc. v. United States, 178 F.3d 1260 (Fed. Cir.
1999); Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991); Johnson
Controls, 713 F.2d at 1555; Serco, Inc. v. Pension Benefit Guaranty Corp., CBCA 1695, 11­
1 BCA ¶ 34,662. Contract language should be given the plain meaning that would be
derived by a reasonably intelligent person acquainted with the contemporaneous
circumstances. Firestone Tire & Rubber Co. v. United States, 444 F.2d 547, 551 (Ct. Cl.
1971); Hol-Gar Manufacturing Corp. v. United States, 351 F.2d 972, 975 (Ct. Cl. 1965).
The contract must be construed to effectuate its spirit and purpose, giving reasonable
meaning to all of its parts. Gould, Inc., 935 F.2d at 1274; Electronic Data Systems, LLC
v. General Services Administration, CBCA 1552, 10-1 BCA ¶ 34,316, at 169,505 (2009).
Because this is an order placed under Merlin’s GSA schedule contract, pertinent
provisions of the schedule contract must be considered together with the terms of the
modified BPA and delivery order 34. The Government argues that the order of precedence
clause in the delivery order requires that in the event of an inconsistency the general
provisions of the GSA schedule contract should prevail. Respondent further states that the
schedule provision option clause clearly permits the non-exercise of an option. An
examination of the provisions of delivery order 34 and the schedule contract, however,
reveals that both provide that the agency intends to exercise each option, renewing the lease
until completion of the lease term, so long as (1) the need of the Government for the system
or functionally similar products or services continues to exist and (2) funds are appropriated.
The modified BPA also states that “[t]he Government . . . understands that a Government
Order issued [under this LTOP] is a lease arrangement and contemplates the use of the
System for the base period and any option periods as set forth in each individual
Government order.”
Both the revised BPA terms and conditions and Merlin’s GSA schedule contract
define LTOPs as lease arrangements, recognize that prices are negotiated accordingly, and
suggest that the ordering activity (agency) intends to extend the lease until completion of its
term so long as the need of the ordering activity for the product or functionally similar
product continues to exist and funds are appropriated. The GSA and DHS contracts also
both contain provisions encouraging the contractor to request information from the ordering
activity concerning the essential use of the products. We find no inconsistencies among the
terms of these contractual instruments that would dictate that the GSA schedule terms should
prevail or that support the Government’s interpretation of those terms to override the
language in the BPA and delivery order.
Appellant maintains that USCIS breached its obligations under the LTOP plan
because the circumstances underlying the agency’s original bona fide needs assessment did

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not change, so as to justify declining to renew the lease in the first option year. Merlin
argues that the bona fide need for the unlimited software licenses was established as of the
time delivery order 34 was awarded. According to Merlin, nothing subsequently changed
in terms of the agency’s goals and mission that would support a determination that USCIS
no longer had a bona fide need for the licenses.
Testimony adduced at the hearing from Merlin’s general counsel and from Hitachi’s
outside counsel establishes that these parties understood the significance of the term “bona
fide needs” to be consonant with the meaning of the term as used in appropriations law,
which is where the term originated. In that context, the bona fide needs rule prohibits an
agency from obligating an appropriation in advance of its needs. An appropriation available
for a specific fiscal year can be obligated only for the bona fide needs of that year. 31
U.S.C. § 1502(a); Lee v. United States, 124 F.3d 1291, 1295 (Fed. Cir. 1997); JJA
Consultants v. Department of the Treasury, CBCA 432, 07-2 BCA ¶ 33,632. It is solely the
province of the agency to determine its bona fide needs each fiscal year. See, e.g., Capital
Controls Co., B-173586 (Nov. 24, 1971). That determination will not be disturbed unless
found to be arbitrary, capricious, or an abuse of discretion. The agency’s judgment with
respect to its technical needs in particular will not be overcome absent a showing that the
determination is unreasonable. See, e.g., Ultra Electronics Ocean Systems, Inc., B-400219
(Sept. 8, 2008).
When fiscal-year, as opposed to multi-year, funds are obligated, the bona fide needs
determination is one that is made each fiscal year. It was recognized by both the
Government and Merlin that the main reason for renegotiating the terms of the original BPA
was to eliminate the Termination clause with its schedule of costs payable if the contract
should terminate. The alternate terms, proposed by the Government, did not contain a
termination schedule of costs.
All parties to delivery order 34, and the financing institutions, were familiar with the
term “bona fide needs” as it pertained to the Anti-Deficiency Act, and recognized that there
are risks inherent in the use of LTOP arrangements. All parties presumably understood that
funds would have to be obligated annually at the time the options were ripe for exercise and
should have understood that the need for the technology would be subject to review. The
newly-appointed CIO properly undertook such an analysis, in conjunction with his
overarching role to examine and refine USCIS’s IT modernization effort. The information
he developed supports his determination that USCIS would not have a bona fide need for
the Siebel licenses in the upcoming option year. This reflected his assessment of the
continuing degradation and obsolescence of the legacy systems, and in particular CLAIMS
3 LAN, as a factor that caused the Siebel CDI tool and unlimited licenses to be unworkable
in the existing USCIS IT environment. Although he conceded that a technical fix could
probably be fashioned with “expensive technological duct tape,” he did not regard this as

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an economical or effective way to make use of this, or any other data integration tool.
Nothing in the record demonstrates that his conclusions were arbitrary or capricious. The
decision that there was no bona fide need to justify exercise of the option year for 2007 did
not breach this term of the contract.
Functionally Similar Products
Merlin also argues that the agency’s continuing bona fide need for unlimited licenses
is proven because the Government used functionally similar software products, which its
expert testified were capable of providing a variety of features of the Siebel UCM. In
particular, Merlin’s expert pointed to PCQS, EDMS, and SIMS as software products that
provided USCIS with substantially similar functionality. As established in our findings of
fact, these products do not perform the cleansing and matching of records in different
systems, and do not integrate disparate data into one clean, authoritative record as does the
Siebel product. USCIS did not improperly replace the Siebel UCM with these software
applications, nor do these software applications demonstrate a continuing need for the Siebel
licenses.
The Government’s experts both provided credible, detailed explanations of the
functionality of the software applications identified by appellant’s expert. Although the
UCM includes numerous features and ancillary tools, the predominant function of a CDI
tool is to identify, cleanse, and interact with data on existing databases to produce a single,
trusted source document. The Government’s experts showed that the software applications
identified by appellant’s expert did not perform as a CDI or provide the capability to
integrate data from the old systems to create a single, trusted source document -- the primary
feature of the Siebel UCM. Thus, as a factual matter, USCIS did not use these or any other
programs with functional similarity during the year following the decision not to exercise
the first option year. This proviso cannot reasonably be construed to mean, as Merlin
suggests, that the use of programs providing discrete functions that are inherent in an overall
data integration tool should be deemed to breach the terms of the delivery order.20
Appellant’s argument that USCIS continued use and manipulation of data housed in
its legacy systems violates the requirement that the agency will not use functionally similar

20

Reviewing this contract clause as a whole, this proviso appears primarily to
ensure that the Government not exercise an option only to turn around and purchase
something similar that might provide it with a better deal. There is no evidence that this
happened here.

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technology is also unpersuasive. The Court of Appeals for the Federal Circuit has recently
issued a decision addressing the interpretation of comparable contract language concerning
the use of a similar or previously owned product to continue operations following nonexercise of an option under an LTOP arrangement. See McHugh v. DLT Solutions, Inc., 618
F.3d 1375 (Fed. Cir. 2010). In that case, the Army had entered into an LTOP plan under
which it agreed it would not replace the software it had leased with functionally similar
equipment for at least one year after the termination of the contract. The Army terminated
the contract for convenience and continued to use existing software to manage the relevant
data. The Court held that the requirement to refrain from substituting functionally
equivalent products or from replacing the contracted-for product referred to actions taken
by the agency subsequent to the termination of the contract and did not prevent the agency
from continuing to use products it owned prior to the contract award. For the reasons stated
in McHugh, the continued use of the existing legacy systems by USCIS, even combined with
the applications identified by Merlin’s expert, did not constitute a use of functionally similar
products.
Merlin’s position that the continued exercise of the option years for the purchase of
the software and the forty million Siebel UCM licenses under delivery order 851 was an
acquisition of a functional substitute, and proved that the agency had a continuing bona fide
need for the unlimited licenses under delivery order 34, also is untenable. As the CIO and
contracting officer testified, these option years were exercised because of the differing
conditions applicable to that order. The Government interpreted those terms and conditions
to preclude a partial termination for convenience. The agency still had a use for some of the
Siebel software acquired under that order. The CIO confirmed in his testimony that even
if some limited use may have been made of some of the forty million licenses to digitize
records, most licenses were, in fact, not used. The exercise of the options under this delivery
order does not demonstrate a continuing need for the unlimited licenses acquired under
delivery order 34, nor does it establish use of a functionally similar substitute within the
meaning of the LTOP terms.
Warranty
According to Merlin, section H.10.3 of modification 001 to BPA 850 warranted that
the use of the system acquired with delivery order 34 was essential to the Government’s
proper, efficient, and economic operation for the duration of the lease term. Merlin asserts
that absent a change in the circumstances upon which this warranty rested, USCIS was
obligated to exercise the option years of the contract. Merlin contends that the only changed
circumstance was the appointment of a new CIO with a different vision for modernizing the
USCIS IT environment.

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USCIS responds that it did not breach any warranty and that, even if the language of
section H.10.3 was intended to serve as an enforceable warranty, Merlin did not obtain the
written confirmation that it was expressly required to secure. Merlin counters that the
language in the contract was sufficient confirmation of the warranty and it did not need an
additional written guarantee.
Merlin asserts that it relied on the Government’s assurance that it had carefully
assessed its future IT requirements and that a need for the licenses would exist for the entire
term of the lease, and that the underlying legacy systems were in such condition that the
Siebel UCM licenses were an appropriate case management tool to use with the legacy
systems. It says that it was induced by these representations to enter into the contract at a
more favorable price that it would otherwise have agreed to. According to Merlin, when
DHS chose not to exercise the first option year because it could not make use of the licenses,
it confirmed that the agency had misrepresented the Government’s need for the licenses.
The Court of Appeals for the Federal Circuit has provided guidance on elements of
proof for establishing the existence of a warranty:
“[A] warranty is an assurance by one party to an agreement of the existence
of a fact upon which the other party may rely; it is intended precisely to relieve
the promisee of any duty to ascertain the facts for himself.” . . . Thus, to be
successful [the contractor] must establish that the [Government] provided a
warranty either explicitly or implicitly in its contract by showing that: “(1) the
Government assured the plaintiff of the existence of a fact, (2) the
Government intended that plaintiff be relieved of the duty to ascertain the
existence of the fact for itself, and (3) the Government’s assurance of that fact
proved untrue.”
Oman-Fischbach International (JV) v. Pirie, 276 F.3d 1380, 1383-84 (Fed. Cir. 2002)
(quoting Dale Construction Co. v. United States, 168 Ct. Cl. 692, 699 (1964), and Kolar,
Inc. v. United States, 650 F.2d 256, 258 (Ct. Cl. 1981)). To the extent a fact warranted by
the Government proves untrue, the warranty serves to indemnify the contractor for any
resultant loss. Dale Construction. Although an express warranty does not require formal
words of creation, Everett Plywood & Door Corp. v. United States, 419 F.2d 425, 429 (Ct.
Cl. 1969), an express warranty does not exist absent specific language in the contract at
issue. Walter Dawgie Ski Corp. v. United States, 30 Fed. Cl. 115, 127 (1993) (citing Ekco
Products Co. v. United States, 312 F.2d 768, 771 (Ct. Cl. 1963); Burgwyn v. United States,
34 Ct. Cl. 348, 360 (1899)).
An examination of the cases relied upon by Merlin for the proposition that the
Government essentially warranted that its need for the UCM licenses would continue for the

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34

projected lease term reveals that in general they did not involve the type of a statement or
procurement before us in this case. For example, in Oman-Fischbach, the Court determined
that the Government, by specifying a particular disposal site for use by the contractor, did
not warrant that the site would be available using the most direct route, and was not liable
for the increased costs of using a more circuitous route. In Dale Construction, the
Government was deemed liable for incorrect representations on plans furnished to the
contractor. In Kolar, the Court held that neither a description of practice bombs as
“demilitarized,” nor a statement that “cutting torches” could be used to remover surplus
scrap materials, warranted that the practice bombs were safe for handling with cutting
torches, particularly where other contract provisions warned of the hazardous nature of the
materials purchased. Everett Plywood, in which a warranty was found to have been made,
involved an unqualified representation that a certain quantity of board feet of timber would
be available under a sale of timber by the Forest Service.
Merlin maintains that even without the letter of essential need, the contract language
represents that the Siebel unlimited licenses were essential to the operation and as such
constitutes a warranty because (1) the Government assured it of the existence of the “fact”
that the software was integral to its modernization plan and would continue to be over the
full term of the lease and (2) the Government intended that Merlin be relieved of its duty to
inquire into the accuracy of that “fact.”
We find the reasoning of the Court of Federal Claims in Northrop Grumman
Information Technology, Inc. v. United States, 78 Fed. Cl. 45 (2007), aff’d, 535 F.3d 1339
(Fed. Cir. 2008), addressing the contractor’s claim of warranty in similar circumstances to
be persuasive. In that case, the contractor claimed that the Government had warranted that
it had an essential use for and had tested and confirmed the viability of software acquired
under an LTOP arrangement. The court determined that although a letter of essential use
had been issued, it had not been incorporated into the contract and thus was not a warranty
that the Government had breached.21 The court also considered, in the alternative, whether,
if the letter of essential use had been incorporated into the contract, it would have constituted
a warranty such that the contractor could recover breach damages. The contract stated that
if the bona fide needs of the Government for the software ceased to exist and such need was
not fulfilled with a product performing functions similar to those which the leased product
was intended to provide within twelve months after non-exercise of the option, the
Government would be relieved from all obligations under the lease. The court considered
whether the language in the letter together with this term of the contract would create an

21

This Federal Circuit affirmed the decision on this basis and did not address the
alternative ruling, discussed above, since the failure to incorporate the letter of essential use
by reference disposed of the claim.

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35

enforceable warranty. The court concluded that the interpretation advanced by the
contractor effectively negated the Government’s fundamental right to extricate itself from
a contract for a product it could not use.
The letter of essential use referred to in section H.10.3 was never requested by or
provided to Merlin. Appellant discounts the importance of this fact, contending that the
statements made in the contract and confirmed in conversations with the Acting CIO
obviated a formal request for such a letter. The Government, in Merlin’s view, effectively
warranted that it had a long-term need for the software licenses. Merlin states that it would
not have agreed to the favorable pricing terms offered to DHS in the absence of this
representation.
The statement that the Government warrants that the use of the system is essential to
the Government’s proper, efficient, and economic operation for the anticipated lease term
was juxtaposed with a requirement that the contractor ask for and receive a letter confirming
that the acquisition of unlimited licenses was essential. The first statement must be viewed
in combination with the following sentence stating that the contractor shall request written
information from the Government to establish and document the essential use of the system.
Indeed, if statements set forth in the modified BPA were intended to establish a warranty
with respect to the essential use of the system, the requirement to formally request additional
written information from the Government would also be superfluous. Such an interpretation
would be contrary to well-accepted principles of contract interpretation.
Moreover, the language concerning the essential use of the system cannot be read in
isolation from the language of the modified BPA as a whole and from government actions
showing that USCIS intended to retain a degree of flexibility. The fact that the transaction
is structured as a lease, rather than as a multi-year contract, also supports the intent to retain
a measure of flexibility.
Merlin argues that the Government should have known that it would rely on this
representation and that it had no way to ascertain for itself what the Government’s needs
actually were. From Merlin’s perspective, USCIS effectively promised that its need for this
product and unlimited licenses would continue for the full term of the lease. Although case
law allows contractor recovery in situations where the contractor relied on mistaken factual
information provided by the Government where it affected performance of the contract,
these precedents are not applicable to the facts here. A representation about the
Government’s belief that it will continue to need to lease something cannot reasonably be
construed as a guarantee that an option will be exercised.
In this case, the Government assured the contractor as to its expectation that the
product it was purchasing would be needed for the full term of the lease; it did not warrant

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36

that its need for the licenses would continue to exist for the full term of the lease, that
personnel would not change, or that IT modernization strategies would not be reevaluated.
This risk is inherent in annual year contracting, where a bona fide need must be deemed to
exist at the time an option comes due and monies are obligated. Merlin, Hitachi, and
Citizens understood that “bona fide need” is a term of art used in appropriations law. Under
well-settled precedents, the continuation of its bona fide need for a product is not something
the agency can guarantee as to option years under an LTOP. This was at best a statement
of expectation, limited by the possibility that, among other things, changes in the agency’s
assessment of its needs, an annual process, might be modified for any variety of
considerations. Statements that a particular product is essential to the Government’s
efficient operation are limited to the period for which the initial obligation is made.
Decision
For the reasons stated, we conclude that USCIS did not breach the terms of the order
nor did it breach a warranty made to Merlin. The appeal is DENIED.

__________________________________
CATHERINE B. HYATT
Board Judge
We concur:

_____________________________
ALLAN H. GOODMAN
Board Judge

__________________________________
PATRICIA J. SHERIDAN
Board Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Acbca%3A1fd775696f3741ba. Public record. Not legal advice.