DISMISSED FOR LACK OF JURISDICTION OR, ALTERNATIVELY, DENIED:

DISMISSED FOR LACK OF JURISDICTION OR, ALTERNATIVELY, DENIED:

July 1, 2024

CBCA 8087(6360)-REM, 8088(6627)-REM

AVUE TECHNOLOGIES CORPORATION,

Appellant,

v.

DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Respondent in CBCA 8087(6360)-REM,

and

GENERAL SERVICES ADMINISTRATION,

Respondent in CBCA 8088(6627)-REM.

Andy Liu of Nichols Liu LLP, Washington, DC, counsel for Appellant.

Lucy G. Mac Gabhann and Douglas W. Kornreich, Office of the General Counsel,

Department of Health and Human Services, Baltimore, MD, counsel for Respondent in

CBCA 8087(6360)-REM.

James T. Van Biber and Fallyme E. Guerrero, Office of General Counsel, General

Services Administration, Washington, DC, counsel for Respondent in CBCA

8088(6627)-REM.

Before Board Judges SHERIDAN, O’ROURKE, and CHADWICK.

CHADWICK, Board Judge.

CBCA 8087(6360)-REM, 8088(6627)-REM

2

These consolidated appeals are before the Board on remand from the United States

Court of Appeals for the Federal Circuit. See Avue Technologies Corp. v. Secretary of

Health & Human Services, 96 F.4th 1340 (Fed. Cir. 2024). Appellant, Avue Technologies

Corporation (Avue), licenses software that another company sells under a Federal Supply

Schedule (FSS) contract awarded by respondent General Services Administration (GSA).

The Food and Drug Administration (FDA) acquired a subscription to the software from the

schedule contractor. Avue alleges that FDA breached the software license and owes Avue

damages.

The Court of Appeals vacated our prior holding that we lacked subject matter

jurisdiction. Avue Technologies, 96 F.4th at 1346. We resumed the case by considering

cross-motions for summary judgment on entitlement that the parties had filed and briefed in

late 2021. As we explain, we conclude again that we lack jurisdiction—on a different basis,

we believe, than the Court of Appeals considered. Alternatively, in case we have

misunderstood the Court’s mandate, we grant the joint motion of respondents, Health and

Human Services Administration (HHS) (FDA’s parent agency) and GSA, on the merits and

deny the appeals. We base both our jurisdictional decision and our alternative merits holding

on our conclusion that the license agreement under which Avue seeks relief is not a

procurement contract.

Background

We determine the following historical and procedural facts to be undisputed for

purposes of the cross-motions, except as noted.

The FSS Order

Avue offers a software “platform” that allows organizations to automate

administrative and human resources tasks. Avue does not sell its software directly to federal

agencies. For those users, Avue offers annual subscriptions to what it calls Avue Digital

Services (ADS) through an unaffiliated reseller, Carahsoft Technology Corporation

(Carahsoft), which holds an FSS contract. “Avue attempts to govern its relationship with end

users of its software via an [end user license agreement (EULA)], which Avue calls a master

subscription agreement (‘MSA’).” Avue Technologies, 96 F.4th at 1342.

GSA and Carahsoft modified Carahsoft’s schedule contract to add ADS subscriptions

in May 2012. As the Board wrote in 2022:

[T]he modification form states in part, “GSA approved EULA rider are [sic]

hereby incorporated into this contract.” The context indicates that the “EULA

rider” described as being “incorporated” is [Avue’s MSA]. The attachments

CBCA 8087(6360)-REM, 8088(6627)-REM

3

to the 2012 modification include an unsigned, undated template version of

Avue’s MSA (with the words “CLIENT NAME” on the title page where the

subscriber’s name would be) . . . .

The template version of the MSA appended to the modification states, just

above the empty signature blocks, “In the event this agreement is incorporated

into a government contract award, execution by the parties is not necessary.”

(Capitalization altered.) The document has seventeen sections with paragraphs

numbered 1.0 to 17.6. As pertinent here, paragraph 3.2 states, “For federal

government Subscribers, the Subscribed Services are commercial items under

[48 CFR] 2.101 and this standard commercial license to the Subscribed

Services shall be incorporated into and attached to the applicable contract.”

Section 5 (paragraphs 5.1 through 5.9) is titled, “Right to Use Avue Digital

Services.” This section distinguishes “Client Data” from “ADS Material” and

sets limits on Avue’s permission to use the latter. Paragraph 5.2 provides,

subject to conditions, “Subscriber shall have a non-exclusive, non-transferable,

limited right to use [ADS] for access to the Subscribed ADS Modules during

the relevant Subscription Period under this Agreement, including the right to

make use, for its own internal operations, of any printable output (whether in

hard copy or electronic form) of data that it generates or downloads[.]”

Avue Technologies Corp. v. Department of Health & Human Services, CBCA 6360, et al.,

22-1 BCA ¶ 38,024, at 184,651, vacated and remanded, 96 F.4th 1340 (Fed. Cir. 2024).

In 2015, FDA issued a request for quotations under Federal Acquisition Regulation

(FAR) part 12 (48 CFR part 12 (2014)) for software to automate FDA’s job classification

system. Carahsoft submitted a quotation to provide ADS from the GSA schedule. Carahsoft

stated that its quotation incorporated the “assum[ption] that FDA will accept the terms and

conditions of the [Avue] MSA” and was “expressly conditioned on the MSA,” which

Carahsoft attached to the quotation, “being included in the contract award.” In September

2015, FSA placed an order for ADS under Carahsoft’s FSS contract with a term of one year

and four option years.

On the day it received the FDA order, Carahsoft asked FDA to modify the order to

refer specifically to Avue’s MSA. The FDA contracting officer replied by email, “I was not

intending on incorporating the Master Subscription Agreement into the [FDA] contract. The

contract is being issued in accordance with your GSA schedule so if this schedule is part of

the Schedule [sic] we should be good.”

FDA used the ADS software in the first year but did not exercise its option to renew

the order in September 2016.

CBCA 8087(6360)-REM, 8088(6627)-REM

4

FDA’s Alleged Breaches

The agencies do not, for the most part, point to disputes of fact as to whether FDA

took the actions about which Avue complains.1 FDA denies violating legal obligations to

Avue. During the first year of the subscription, FDA considered whether it should renew for

the second year. In April 2016, responsible FDA personnel circulated a PowerPoint

presentation titled, “Automated Classification Initiative Project Review.” The slides

discussed “Avue Contract [sic] Challenges,” one of which was that “FDA data is owned by

Avue.” The presentation recommended that, rather than extending the ADS subscription,

FDA should adopt a different platform, called eClass, reportedly in use at another agency.

In June 2016, an FDA supervisor announced by email that the agency had created a

SharePoint site for files relating to “Avue PD [position description] document transfer.” An

FDA representative testified in deposition that FDA decided to migrate to SharePoint all of

the position descriptions that FDA could access via ADS, “whether they were modified PDs

or legacy PDs, we wanted all of our PDs . . . that we worked on during . . . the contract with

Avue [sic].” In mid-September 2016, Avue, acting on an “anonymous tip,” investigated

what it considered improper downloading by FDA. Avue concluded that seventeen

individual users had downloaded 5706 documents Avue considered proprietary. Avue

suspended FDA’s access to ADS for a week but was persuaded by FDA to restore it.

By the end of September 2016, FDA succeeded, in part through the efforts of an

assigned contractor employee, in downloading from ADS all of the information that FDA

wanted, including position descriptions and supporting documentation such as job analyses,

performance plans, and Fair Labor Standards Act determinations. FDA’s downloading

continued through the last day of the ADS subscription. Afterward, FDA assigned the

contractor employee and others to delete all references to Avue and ADS from the

downloaded information, including by converting PDFs obtained from ADS into

WordPerfect documents for editing. In November 2016, an FDA supervisor expressed the

view that the contractor employee and an FDA employee deserved performance awards for

“supporting the sunset of Avue and document migration.”

1

A movant for summary judgment must file a statement of undisputed material

facts. Board Rule 8(f)(1) (48 CFR 6101.8(f)(1) (2023)). The opposing party responds in a

statement of genuine issues, “citing appeal file exhibits, admissions in pleadings, and/or

evidence filed with the opposition.” Rule 8(f)(2). The agencies either do not answer or

merely deny multiple paragraphs of Avue’s Rule 8(f)(1) statement. We treat as undisputed

any fact that is supported by record evidence in a Rule 8(f)(1) statement and is either

admitted, not answered, or denied without explanation in a Rule 8(f)(2) statement.

CBCA 8087(6360)-REM, 8088(6627)-REM

5

Avue contends that FDA now uses position descriptions in eClass that “contain

material from Avue PDs.” The agencies deny that the record establishes this, citing

deposition testimony of an FDA representative that “[FDA] can’t upload anything to

[eClass]. You have to go literally, physically type it, or if it’s an existing PD . . . you would

have to use that . . . and you could potentially take information from a PD and use it to build

another PD, but you can’t upload anything to it. You can attach things to [an eClass position

description], but it will show as an attachment and not a part of the body of the actual PD.”

Avue’s Claim to FDA (First Claim)

In March 2018, Avue submitted a certified claim to the ordering contracting officer

at FDA, seeking damages of $41,398,796.80 for the alleged, unauthorized downloading of

ADS data. “Avue asserted in the claim that ‘[t]he Carahsoft FSS contract expressly

incorporate[d]’ [Avue’s MSA/EULA] and that ‘FDA users . . . had to “click” the box

representing their agreement to the terms of [the license]. Thus, FDA and FDA users had

privity of contract with Avue through its licensing agreements.’ (Emphasis added.).” Avue

Technologies Corp. v. Department of Health & Human Services, CBCA 6360, 19-1 BCA

¶ 37,375, at 181,705. Avue alleged in the claim that “as part of the purchase, FDA . . .

agree[d] to a freestanding obligation with Avue to comply with the MSA.”

The FDA contracting officer declined to act on the claim, taking the position in

August 2018 that FDA “does not have [a] contract with Avue” but only with Carahsoft.

Initial Proceedings at the Board and the First and Second Motions to Dismiss

Avue appealed to the Board in January 2019 from FDA’s deemed denial of the March

2018 claim. The Board docketed that appeal as CBCA 6360. In February 2019, before Avue

filed its complaint, HHS moved to dismiss the appeal for lack of jurisdiction. HHS argued

that “this Board lacks jurisdiction over a direct appeal filed by a subcontractor absent

sponsorship of the claim by the prime contractor,” meaning Carahsoft.

Avue argued in opposing HHS’s motion, “Avue and FDA (and not Carahsoft) are the

parties to Avue’s EULA . . . . Avue expressly alleged this in its claim. . . . Because it is

Avue’s MSA that was breached, not Carahsoft’s FSS contract, Avue has privity to support

its claim under the MSA against FDA.”

The Board denied HHS’s motion and accepted Avue’s framing of its claim as

involving an alleged “freestanding” obligation independent of Carahsoft. We wrote:

HHS’s argument that a subcontractor cannot pursue its own claim under the

Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109 (2012), is correct

CBCA 8087(6360)-REM, 8088(6627)-REM

6

where applicable. . . . The twist here is that Avue is not pursuing its claim as

a subcontractor. Avue alleges that it is a contractor. More than this, Avue

points to a specific writing (the EULA, allegedly “incorporated” in the FSS

contract) that it considers a government contract. These allegations of the

existence of a contract suffice to take the claim out of the realm of

subcontractor claims and into the world of claims within our CDA jurisdiction,

provided the other jurisdictional requirements are met.

Avue Technologies, 19-1 BCA at 181,706. In light of the possible jurisdictional significance

of the incorporation language in the 2012 modification of Carahsoft’s FSS contract, we also

“encourage[d] the parties to consider whether Avue submitted its claim to the proper

contracting officer.” Id. (citing Sharp Electronics Corp. v. McHugh, 707 F.3d 1367 (Fed.

Cir. 2013); Consultis of San Antonio, Inc. v. Department of Veterans Affairs, CBCA 5458,

17-1 BCA ¶ 36,701).2

In July 2019, Avue filed the complaint in the first appeal. Avue alleged in

paragraph 35 of the complaint that “Avue takes specific steps . . . to ensure that it is in privity

of contract with the end user(s)” and in paragraph 42 of the complaint that “FDA and its

users had privity of contract with Avue.” The complaint had two counts: “FDA Breached

the MSA” and “FDA Breached Its Implied Duties of Good Faith and Fair Dealing.” Avue

did not plead a breach of Carahsoft’s FSS contract or of the order placed with Carahsoft.

In September 2019, HHS, with leave of the Board, filed a second motion to dismiss

for lack of jurisdiction. This time, HHS argued that Avue should have submitted its claim

to the GSA contracting officer and not to FDA.

Avue’s Protective Claim to GSA (Second Claim)

In July 2019—the same month in which it filed the complaint in the first

appeal—Avue submitted a “protective” certified claim to the GSA schedule contracting

officer. This claim was substantively identical to the claim to FDA (which Avue attached

to the claim to GSA). Avue advised GSA, among other things:

Avue’s claim deals with the alleged misappropriation of Avue’s proprietary

data by FDA and the consequent breach of the data rights provisions of its

MSA. It does not involve any Carahsoft data, and Carahsoft is not a party to

2

“[48 CFR] 8.406-6 does not authorize an ordering [contracting officer] to

decide a dispute requiring interpretation of schedule contract provisions.” Sharp Electronics,

707 F.3d at 1374.

CBCA 8087(6360)-REM, 8088(6627)-REM

7

the MSA. . . . Avue believes its claim was properly submitted to the FDA

contracting officer. . . . This claim [to GSA] is a protective claim and does not

take the place of Avue’s claim before the Board.

(Paragraph break omitted.)

In October 2019, the schedule contracting officer wrote to Avue that he was “not in

a position to render a final decision” because Avue had no contract with GSA.

Initial Proceedings in the Second Appeal and the Third Motion to Dismiss

Avue promptly filed what it styled a “protective appeal from the deemed denial of [its]

protective claim” to GSA. The Board docketed this second appeal as CBCA 6627. Avue

stated in the notice of appeal that it still “believe[d] its original claim was properly submitted

to the contracting officer of the ordering agency,” FDA.

Avue filed the complaint in the second appeal in November 2019. This complaint was

essentially identical to the complaint in the first appeal except that the counts were titled,

“The Government Breached Its Contract with Avue” and “The Government Breached Its

Implied Duties of Good Faith and Fair Dealing.” The Board consolidated the first and

second appeals over HHS’s objection in December 2019.

Also in December 2019, GSA filed a motion to dismiss for lack of jurisdiction with

its answer. GSA argued that it “never entered into a contract with Avue” under the FSS and

that Avue could “only establish CDA jurisdiction . . . by sponsorship and certification of the

claim by Carahsoft,” the prime FSS contractor. Opposing GSA’s motion mainly as

premature, Avue acknowledged that it was inclined to agree with GSA that “HHS is the

proper [respondent] in this matter, but the Board has raised the question of whether

[precedent] dictates that GSA is the proper party, and the answer to that question is uncertain

enough that it makes sense to keep both HHS and GSA in this case.” Avue averred, among

other things, that “GSA recognizes that the MSA is a contract separate from the FSS.”

Oral Argument on Jurisdiction

The full panel heard oral argument in January 2020 on HHS’s and GSA’s respective,

pending jurisdictional motions (the second and third such motions). The presentation of

Avue’s counsel, which followed argument for HHS, began as follows:

MR. LIU: So, you know, I think Your Honors are correct, our position is, and

the Board has already found that there is a standalone, separate contract

between Avue and the FDA.

CBCA 8087(6360)-REM, 8088(6627)-REM

8

JUDGE SHERIDAN: No, I don’t think we have found that.

JUDGE CHADWICK: No, nonfrivolous.

JUDGE O’ROURKE: Nonfrivolous.

MR. LIU: Well, a nonfrivolous.

JUDGE CHADWICK: Yes.

JUDGE SHERIDAN: It’s a nonfrivolous allegation of a contract.

Avue’s counsel went on to reiterate and defend Avue’s position that the MSA “creates the

direct relationship between the agency [FDA] . . . and Avue.” Counsel for the two agencies

continued to argue that Avue was not a contractor under the schedule contract or the order.

The Board Defers Ruling Again on Jurisdiction

In February 2020, the Board adopted Avue’s suggestion in its opposition to GSA’s

motion and tabled the latest jurisdictional issues raised by the agencies. “Both agencies,” we

found, “raise colorable arguments that we may eventually adopt in dismissing one appeal or

the other.” Avue Technologies Corp. v. Department of Health & Human Services, CBCA

6360, et al., 20-1 BCA ¶ 37,503, at 182,185. We concluded among other things, however,

that the “jurisdictional arguments are intertwined with and overlap arguments going to the

merits of Avue’s novel claim regarding whether the EULA is a freestanding contract and, if

so, whom the contract binds. Answering such merits questions may shed light on

jurisdictional issues.” Id. at 182,186. We denied both motions “without prejudice to

eventual refiling at a time set by the presiding judge.” Id.

The Merits Briefing

After discovery, the parties filed simultaneous cross-motions for summary judgment

on entitlement in November 2021. Avue argued in support of its motion (we quote section

headings of its brief) that “There Is a Direct Contract Between Avue and FDA,”

“Alternatively, FDA Entered an Implied Contract with Avue,” and “The FDA Breached the

MSA.” Avue summarized its legal position as follows:

(1) as a condition of making its software available to the government, Avue

ensured that its EULA, the MSA, provided direct privity between Avue and

the user agency; (2) GSA approved incorporation of the MSA, a freestanding

document, into the Carahsoft FSS contract reselling ADS as Avue’s

CBCA 8087(6360)-REM, 8088(6627)-REM

9

EULA/license agreement; (3) FDA was expressly made aware that it would be

directly entering into the MSA and the MSA’s terms, including those

controlling data rights, before it issued the Order; and (4) FDA accepted those

terms when it issued the Order, as is consistent with commercial practice, and

shortly thereafter acknowledged that it had.

Avue argued further that “[t]he MSA directly bound FDA as an end user of Avue’s data and

prohibited FDA from misappropriating Avue’s intellectual property and putting it to an

unlicensed use. . . . And it was Avue, not Carahsoft, that substantially performed under the

Order.”

The agencies jointly argued (again, we quote section headings) that “Even if [the

MSA] was incorporated into the FDA task order with Carahsoft, the MSA does not create

privity of contract between Appellant and Respondents,” “Avue has not shown an

implied-in-fact contract,” and “[Absent] an existing contract with the United States, . . . the

duty of good faith and fair dealing has not attached.” The agencies urged the Board, if we

found an enforceable contract, to deny Avue’s motion on the grounds that genuine issues of

material fact exist as to whether FDA committed the alleged breaches.

Further Briefing at the Board on Jurisdiction

The Board paused consideration of the merits in December 2021 to raise yet another

jurisdictional issue. We asked whether the MSA/EULA is a procurement contract. See Avue

Technologies, 96 F.4th at 1343.3 Avue raised two arguments in supplemental briefing:

(1) “[T]he MSA is itself a contract for the purchase or lease of goods or services,” and

(2) “Even if the MSA, standing alone, is not a CDA contract, that is of no moment here

because it . . . is directly ‘related to’ FDA’s order to Carahsoft for ADS, and that is sufficient

to confer jurisdiction.” We disagreed with both arguments. Avue Technologies, 22-1 BCA

3

The CDA, the source of the Board’s “jurisdiction” here, 41 U.S.C.

§ 7105(e)(1)(B) (2018), applies to “any express or implied contract . . . made by an executive

agency for,” among other things, “(1) the procurement of property” or “(2) the procurement

of services.” Id. § 7102(a). “The scope of the Act thus is limited . . . . It does not cover all

government contracts.” Coastal Corp. v. United States, 713 F.2d 728, 730 (Fed. Cir. 1983).

“In order . . . to decide the jurisdictional question, [one] must determine whether” an

operative contract is “for the procurement of goods or services by an executive agency, a

question of law.” G.E. Boggs & Associates, Inc. v. Roskens, 969 F.2d 1023, 1026 (Fed. Cir.

1992); e.g., Bio-Medical Applications of Aquadilla, Inc. v. United States, 119 Fed. Cl. 546,

567 (2014) (“[T]hese authorizations, should they be construed to be unilateral contracts,

could not have been procurement contracts to which the CDA applied.”).

CBCA 8087(6360)-REM, 8088(6627)-REM

10

at 184,652–53. Avue continued to call the MSA “a ‘direct contract’ between FDA and

Avue.” Id. at 184,651 (quoting Avue’s supplemental brief). We dismissed the appeals for

lack of jurisdiction in January 2022, opining that the MSA is not a procurement contract

under the CDA. Id. at 184,653.

Federal Circuit Review and Remand

Avue sought appellate review. The Court of Appeals vacated our dismissal and

remanded with instructions to “treat[] as a merits issue the matter of whether Avue is a party

to . . . or otherwise has enforceable rights pursuant to . . . the MSA plus the [schedule

contract] or the Task Order,” which are procurement contracts. Avue Technologies, 96 F.4th

at 1346. The Court found that this framing of the claim “was fairly presented to the Board.”

Id. The Court determined that the question we had addressed, i.e., “[w]hether or not the

MSA, all by itself, is a ‘procurement contract,’ is not a question we [the Court] need to

decide.” Id. at 1345. The mandate issued in April 2024. The Board reconsolidated the

appeals to address the previously pending cross-motions.4

Discussion

The Summary Judgment Standard and the Mandate Rule

Each side seeks summary judgment on entitlement (which for Avue would be partial

summary judgment). Each movant bears the burden to show “entitle[ment] to judgment as

a matter of law based on undisputed material facts.” Rule 8(f). “If . . . the movant bears the

burden” of proof, a “non-movant is required to provide opposing evidence . . . only if the

moving party has provided evidence sufficient, if unopposed, to prevail as a matter of law.”

Saab Cars USA, Inc. v. United States, 434 F.3d 1359, 1368–69 (Fed. Cir. 2006). “[A]ll

significant doubt over factual issues must be resolved in favor of the party opposing

summary judgment. . . . However, the party opposing summary judgment must show an

evidentiary conflict on the record; mere denials or conclusory statements are not sufficient.”

Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390–91 (Fed. Cir. 1987).

Also applicable here is the “mandate rule,” pursuant to which “issues actually decided

[on appeal]—those within the scope of the judgment appealed from, minus those explicitly

4

The parties filed recommendations under Board Rule 33 for proceedings on

remand. The agencies recommended a status conference. Avue recommended that we rule

on the pending cross-motions and proposed up to five pages of supplemental briefing on “the

effect, if any, of the Federal Circuit’s decision” on merits issues. We proceeded on the

existing record with no additional briefs.

CBCA 8087(6360)-REM, 8088(6627)-REM

11

reserved or remanded by the court—are foreclosed from further consideration.” Engel

Industries, Inc. v. Lockformer Co., 166 F.3d 1379, 1383 (Fed. Cir. 1999). We “cannot vary

[the mandate], or examine it for any other purpose than execution; or give any other or

further relief; or review it, even for apparent error, upon any matter decided on appeal; or

intermeddle with it, further than to settle so much as has been remanded.” In re Sanford

Fork & Tool Co., 160 U.S. 247, 255 (1895), quoted in Freedom NY, Inc., ASBCA 43965,

05-1 BCA ¶ 32,934, at 163,122. “[A]ctions” by a lower tribunal “on remand should not be

inconsistent with either the letter or the spirit of the mandate.” Laitram Corp. v. NEC Corp.,

115 F.3d 947, 951 (Fed. Cir. 1997).

We Assume That the MSA Is Contractual

As noted, the first issue joined by the parties is whether the MSA is contractually

binding. Avue calls the MSA a “direct” and “freestanding” contract with FDA. The

agencies deny the existence of any contract with Avue. We do not think we are departing

from the mandate by taking up these arguments in the order they were presented. The Court

instructed us to “treat[] as a merits issue” rather than as jurisdictional “the matter of whether

Avue . . . has enforceable rights pursuant to . . . [a] conceded procurement contract.” Avue

Technologies, 96 F.4th at 1346 (also inviting the Board to apply our “considerable

expertise” to “resolve merits issues (including privity) . . . in the first instance” (internal

quotation marks omitted)). We do so in the next section of this decision. The Court did not

instruct us to disregard other merits theories advanced by Avue. Cf. Chicago Board Options

Exchange, Inc. v. International Securities Exchange, LLC, 748 F.3d 1134, 1140 (Fed. Cir.

2014) (“[B]ecause [a] factual issue was unresolved in the previous appeal, the trial court did

not violate the mandate rule by allowing this unresolved issue to go to the jury.”); Amado

v. Microsoft Corp., 517 F.3d 1353, 1364 (Fed. Cir. 2008) (holding that an issue that “was not

addressed by the [Circuit] panel” was “not foreclosed by the mandate rule”).

We assumed in our most recent jurisdictional decision “that the MSA license is

binding on the Government based on the language in the 2012 schedule contract modification

incorporating the MSA as a EULA.” Avue Technologies, 22-1 BCA at 184,652 (adding, inter

alia, “the MSA appears to contain commercially significant promises that might be deemed

contractual”). Our assumption that the MSA is contractual was not questioned or disturbed

by the Circuit Court on appeal. See Avue Technologies, 96 F.4th at 1346. We adopt the

same assumption now for purposes of summary judgment.

As we noted in 2022, “courts hear suits brought by software licensors under contract

theories against end users who did not purchase the software directly from the licensor.”

Avue Technologies, 22-1 BCA at 184,652 (citing ProCD, Inc. v. Zeidenberg, 86 F.3d 1447,

1450 (7th Cir. 1996) (suit for “an injunction against further dissemination that exceed[ed] the

rights specified in the licenses”); and i.LAN Systems, Inc. v. NetScout Service Level Corp.,

CBCA 8087(6360)-REM, 8088(6627)-REM

12

183 F. Supp. 2d 328, 338 (D. Mass. 2002) (“The only issue before the Court is whether

clickwrap license agreements are an appropriate way to form contracts, and the Court holds

they are.”)). This is, in substance, what Avue wants to happen here at the Board.

In 2002, the United States Court of Appeals for the Second Circuit cited “well-known

cases involving shrinkwrap licensing and related commercial practices” that had been held

to bind commercial purchasers of software to license terms “by virtue of inquiry notice.”

Specht v. Netscape Communications Corp., 306 F.3d 17, 32 (2d Cir. 2002).

For example, in Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir. 1997), the

Seventh Circuit held that where a purchaser had ordered a computer over the

telephone, received the order in a shipped box containing the computer along

with printed contract terms, and did not return the computer within the thirty

days required by the terms, the purchaser was bound by the contract. Id. at

1148–49. In ProCD, Inc. v. Zeidenberg, the same court held that where an

individual purchased software in a box containing license terms which were

displayed on the computer screen every time the user executed the software

program, the user had sufficient opportunity to review the terms and to return

the software, and so was contractually bound after retaining the product.

ProCD, 86 F.3d at 1452; cf. Moore v. Microsoft Corp., 293 A.D.2d 587, 587,

741 N.Y.S.2d 91, 92 (2d Dep’t 2002) (software user was bound by license

agreement where terms were prominently displayed on computer screen before

software could be installed and where user was required to indicate assent by

clicking “I agree”); Brower v. Gateway 2000, Inc., 246 A.D.2d 246, 251, 676

N.Y.S.2d 569, 572 (1st Dep’t 1998) (buyer assented to arbitration clause

shipped inside box with computer and software by retaining items beyond date

specified by license terms); M.A. Mortenson Co. v. Timberline Software Corp.,

93 Wash. App. 819, 970 P.2d 803, 809 (1999) (buyer manifested assent to

software license terms by installing and using software), aff’d, 140 Wash.2d

568, 998 P.2d 305 (2000); see also i.LAN Sys[tems, Inc.], 183 F. Supp. 2d at

338 (business entity “explicitly accepted the clickwrap license agreement

[contained in purchased software] when it clicked on the box stating

‘I agree’”).

Id. at 32–33; see also Wollen v. Gulf Stream Restoration & Cleaning, LLC, 259 A.3d 867,

876–77 (N.J. App. Div. 2021) (“[W]e continue to find instructive the Second Circuit’s nearly

twenty-year-old decision in Specht.”).

More recently, the Federal Circuit held in a copyright suit under 28 U.S.C. § 1498

(2018) that, “[b]ecause we must defer to the . . . finding [of the Court of Federal Claims] of

a meeting of the minds, we affirm the . . . finding of an implied-in-fact [copyright] license

CBCA 8087(6360)-REM, 8088(6627)-REM

13

between the [United States Department of the] Navy” and a software maker that had

marketed the product through a third-party reseller. Bitmanagement Software GmbH

v. United States, 989 F.3d 938, 948 (Fed. Cir. 2021), cited in Avue Technologies, 22-1 BCA

at 184,652.5 In another copyright action, the Court of Federal Claims ruled that a licensor’s

“EULA was incorporated by reference in [a reseller’s] original contract,” and the court saw

“no basis for not deeming it to be effective.” 4DD Holdings, LLC v. United States, 159 Fed.

Cl. 337, 343 (2022).

Given these decisions on software licenses, the agencies offer insufficient reasons to

rule—at least on summary judgment—that the MSA is not contractual. It is plausible at this

stage to assume that FDA ordered ADS from Carahsoft subject to the Avue license, which

had already been accepted by GSA and which FDA could violate.

We understand the agencies to argue, in essence, that FDA did not enter into a

procurement contract, express or implied, with Avue by placing an order with Carahsoft

under the FSS. The agencies rely heavily on emails exchanged after the order in 2015 in

which, they contend, the FDA contracting officer “made clear that while he was amenable

to adding a modified version of the MSA to the order, he was steadfast in his refusal to enter

into direct privity with Avue.[6] . . . [A]ssuming . . . some part of the MSA may have been

incorporated into the FDA [order] contract, it was most certainly not the part that creates

privity of contract.”

As discussed below, we continue to agree with the agencies that the MSA is not a

procurement contract and was not awarded as such. Our problem with the agencies’ position

that the MSA is not a contract at all is that the agencies do not grapple with the law of

software licenses. The Avue ADS product that the GSA schedule contracting officer listed

for purchase from Carahsoft on the supply schedule came with an express, “incorporated”

license, the MSA/EULA. “The MSA define[d] what an agency c[ould] procure from

Carahsoft. The scope of the license to end users may be considered an integral feature of

Carahsoft’s FSS offering of ADS.” Avue Technologies, 22-1 BCA at 184,652; see also

Sharp Electronics, 707 F.3d at 1369 (“The terms of the [schedule] contract . . . are

incorporated by reference into the order.”); CiyaSoft Corp., ASBCA 59519, et al., 18-1 BCA

¶ 37,084, at 180,517–18 (“[I]t does not matter that the licensing agreement was neither

negotiated, nor the terms known by the contracting officer. . . . [C]urrent commercial law

5

We mistakenly wrote in 2022 that Bitmanagement arose under the Tucker Act,

28 U.S.C. § 1491. In copyright infringement suits, a defendant may assert a license as a

defense. E.g., Bitmanagement, 989 F.3d at 945–46.

6

The agencies do not discuss these emails in their statement of undisputed

material facts. We do not view such communications as germane to contract formation.

CBCA 8087(6360)-REM, 8088(6627)-REM

14

. . . generally recognize[s] and enforce[s] terms of licensing agreements, which are neither

negotiated nor known to the user until the software has been paid for and delivered.” (citing

several cases cited in Specht)), motion for reconsideration denied, 19-1 BCA ¶ 37,278. The

agencies do not establish on the basis of undisputed facts that the FDA contracting officer

did anything that could void or evade the express Avue software license.

The agencies assert that “[n]o one with authority acted to create a contract with

Avue.” With respect to a procurement contract actionable under the CDA, we agree, as

discussed below. Avue shows, however, that the FAR gave the GSA contracting officer

authority (or at least did not deny such authority) to act on behalf of the Government to

include EULAs such as the MSA in FSS offerings. As a sibling board has discussed, the

applicable FAR part 12 guided agencies to acquire software “under licenses customarily

provided to the public to the extent such licenses are consistent with Federal law and

otherwise satisfy the Government’s needs.” 48 CFR 12.212 (2011), quoted in CiyaSoft, 18-1

BCA at 180,517. Prior to 2013, “the FAR included no provisions addressing clickwrap and

shrinkwrap forms of licensing agreements, the terms of which are generally not known to the

user until the software has been paid for and delivered to the user, but [the FAR] has since

2013 implicitly recognized them.” CiyaSoft, 18-1 BCA at 180,517–18 (citing 48 CFR

12.216, 52.212-4(u)(ii) (2017)). In addition, as Avue notes, in July 2015, GSA amended its

agency acquisition regulation to add a contract clause stating, “If a [commercial] supplier or

licensor believes the ordering activity to be in breach of the agreement, it shall pursue its

rights under the [CDA] or other applicable Federal statute while continuing performance

. . . .” 48 CFR 552.212-4(w)(1)(iv) (July 2015 class deviation) (emphasis added).7

As discussed below, we believe the latter clause (which the parties agree became part

of Carahsoft’s FSS contract) must be read to mean “its rights, if any,” and cannot create CDA

jurisdiction where none would exist. We see nothing in any regulation, however, suggesting

that (1) the FDA contracting officer, who was on inquiry notice of the MSA, needed to agree

separately to the MSA once the GSA schedule contracting officer had done so, or that (2) the

prevailing commercial law under which software licenses can become contractually binding

on end purchasers should not apply in the FSS context.

We need proceed no further with this issue at this time. The agencies do not show “as

a matter of law based on undisputed material facts” that the MSA cannot bind FDA.

7

The term “the agreement” in this clause refers to “a commercial supplier

agreement (as defined in [48 CFR] 502.101).” 48 CFR 552.212-4(u)(1). Such agreements

are defined broadly to include instruments “intended to create a binding legal obligation on

the end user,” including users of “commercial computer software.” Id. 502.101.

CBCA 8087(6360)-REM, 8088(6627)-REM

15

Rule 8(f). As explained below, we assume for purposes of the cross-motions that the MSA

became binding on FDA, but we need not resolve the issue.

Avue Has No Enforceable Rights Under Carahsoft’s Contracts

We must also consider “as a merits issue . . . whether Avue is a party to—or otherwise

has enforceable rights pursuant to, for example by being in privity with Carahsoft—[either

of] the conceded procurement contract[s] (i.e., the MSA plus the FSS or the Task Order).”

Avue Technologies, 96 F.4th at 1346.8 We might have viewed such a claim as forfeited

because Avue did not brief it, cf. SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312,

1319 (Fed. Cir. 2006) (“[A]rguments not raised in the opening brief are waived.”), but the

mandate states that “all parties to th[e] appeal agree[d]” that the contention “was fairly

presented to the Board.” Avue Technologies, 96 F.4th at 1346.

Had we understood Avue to argue that it possessed rights under Carahsoft’s FSS

contract or under the FDA order placed with Carahsoft, we would have found it difficult to

reconcile that position with Avue’s consistent assertions that the MSA is “a freestanding

obligation,” “not Carahsoft’s FSS contract,” “a contract separate from the FSS,” and “a

standalone, separate contract between Avue and the FDA,” and that “Carahsoft is not a party

to the MSA” incorporated into Carahsoft’s schedule contract.9

In any event, we reject this alternative merits theory. Avue “is not a contractor”

named in the Carahsoft agreements “nor did [Avue] sign [a] contract” with either agency.

See El Malik v. Department of Veterans Affairs, CBCA 6600, 20-1 BCA ¶ 37,536, at

182,275; see also Avue Technologies, 19-1 BCA at 181,706 (“Avue acknowledges that it is

Carahsoft’s subcontractor.”). Avue cites no evidence—and we see none—of mutual intent

between relevant parties to make Avue a joint or several contractor under either Carahsoft

contract. See, e.g., Anderson v. United States, 344 F.3d 1343, 1353 (Fed. Cir. 2003)

(requiring, inter alia, “mutuality of intent to contract”); 12 Samuel Williston & Richard A.

Lord, A Treatise on the Law of Contracts § 36:1 (4th ed. 2013). Instead, Avue aptly

describes the MSA as running only between Avue and the end licensee. See Avue

Technologies, 19-1 BCA at 181,706 (“Avue . . . argues that ‘a party can enter two contracts

concerning the same transaction . . . and [this] was done here’ by FDA.”). Avue’s status as

8

We alter the Court’s wording slightly and, we think, immaterially to reflect that

“[t]he placement of an order” under the FSS “creates a new contract.” Kingdomware

Technologies, Inc. v. United States, 579 U.S. 162, 174 (2016).

9

We also wonder but need not decide whether a claim that Avue has rights

under a Carahsoft contract would be the “same claim” that Avue presented to FDA and GSA.

See, e.g., Scott Timber Co. v. United States, 333 F.3d 1358, 1365 (Fed. Cir. 2003).

CBCA 8087(6360)-REM, 8088(6627)-REM

16

a licensor of the product provides no basis to grant Avue’s motion for summary judgment

on entitlement. Subcontractors and “others that are [or may be] third-party beneficiaries”

under a government contract “cannot avail themselves of the CDA provisions and appeal to

the Board.” El Malik, 20-1 BCA at 182,275; see Erickson Air Crane Co. of Washington, Inc.

v. United States, 731 F.2d 810, 813–14 (Fed. Cir. 1984); Kellogg Brown & Root Services,

Inc., ASBCA 59385, et al., 20-1 BCA ¶ 37,656, at 182,825; see also S. Rep. No. 95-1118,

at 17 (1978), reprinted in 1978 U.S.C.C.A.N. 5235, 5251 (“The additional problems of

contract administration and program management that would arise if subcontractors were

given direct access to the Government in [CDA] disputes and claims outweigh the benefit

to be gained.”).

Avue made a similar but different argument in the supplemental briefing on

jurisdiction in 2021. There, Avue argued that the MSA is “related to” one or both of the

Carahsoft contracts. See Avue Technologies, 22-1 BCA at 184,652–53 (rejecting the

argument as a basis of CDA jurisdiction). We do not find Avue’s “related to” argument to

be relevant to the entitlement arguments raised in the cross-motions.

Avue and the agencies alike try to bring this case within the scope of Park Properties

Associates, L.P. v. United States, 916 F.3d 998 (Fed. Cir. 2019). We do not find Park

Properties to be applicable. There, “[t]he contracts at issue were executed in a two-tiered

system. First, the government [agency] contracted with a public housing agency . . . .

Second, the [latter agency] contracted with the private owners of rental housing . . . .” Id.

at 1000. The Park Properties Court explained that in several prior cases, “our court and our

predecessor court consistently held that [owners] that had not directly contracted with the

government for housing projects did not have privity. . . . Based on these cases, we are

compelled to conclude that there is likewise no privity here.” Id. at 1004. The Court went

on to reject four arguments by the owner-plaintiffs in support of finding them in privity with

the Federal Government. Id. at 1004–06.

Avue cites Park Properties for the proposition that “privity of contract can exist in a

tiered contracting scheme,” despite the holding of that case, “when the conduct of the parties

evinces a contractual relationship.” This is a mere truism and envisions a case other than

Park Properties. The agencies argue, for their part, that Avue cannot satisfy the test stated

in Park Properties that “[t]o show privity,” a non-prime contractor “must establish that:

(1) the prime contractor was acting as a purchase agent for the government; (2) the agency

relationship between the prime contractor and the government was established by clear

contractual consent; and (3) the contract stated that the government would be directly liable

to the vendors.” 916 F.3d at 1004. The Park Properties Court cited this test, however, in

summarizing National Leased Housing Ass’n v. United States, 105 F.3d 1423, 1435–37 (Fed.

Cir. 1997); see Park Properties, 916 F.3d at 1004. In National Leased Housing, the would-

CBCA 8087(6360)-REM, 8088(6627)-REM

17

be contractors expressly argued that local housing authorities “acted as ‘agents’ for the

United States.” National Leased Housing, 105 F.3d at 1435.

The National Leased Housing test restated in Park Properties is, therefore, a test of

privity via an alleged agency relationship. It has no application here, where the alleged

obligation arises from license terms incorporated into the government contract under which

FDA placed the order. “[B]road language in an opinion must be read in light of the issue

before the court.” Northern States Power Co. v. United States, 224 F.3d 1361, 1367 (Fed.

Cir. 2000). This case does not present the issue of whether Carahsoft acted as a purchasing

agent for the United States—any more than did Specht or the cases cited in Specht pose the

question of whether software retailers acted as purchasing agents for private end users. Park

Properties does not assist either Avue or the agencies in this dispute.

The MSA Is Not a Procurement Contract Under Which We May Grant Relief

Having decided that Avue lacks privity to enforce the Carahsoft procurement

contracts, we consider whether Avue has the direct procurement contract with FDA that

Avue alleges it has. The agencies raise arguments that—while not persuasive that the MSA

is not binding—indicate that the MSA is not a “contract for . . . the procurement of” property

or services that the Board has authority to address under the CDA. See 41 U.S.C. §§ 7102(a),

7105(e)(1)(B); Institut Pasteur v. United States, 814 F.2d 624, 627 (Fed. Cir. 1987) (aspects

of a CDA contract include “a buyer-seller relationship and an expenditure of government

funds”).10 The Court of Appeals did not decide whether the MSA, as a commercial software

license, “constitutes a ‘procurement contract.’” Avue Technologies, 96 F.4th at 1345. As a

result, the mandate does not resolve the issue. E.g., Engel Industries, 166 F.3d at 1383.

Deciding whether a claimant is a party to a given contract may present questions of

fact. E.g., Avue Technologies, 96 F.4th at 1344 (citing Engage Learning, Inc. v. Salazar, 660

F.3d 1346, 1353 (Fed. Cir. 2011) (allegation, not proof, of contract suffices for establishing

jurisdiction)). Whether a particular contract that has been “pleaded . . . [is] covered by the

CDA,” however, “involves statutory interpretation, which is a question of law on which” the

10

Avue describes the MSA in its supplemental brief as a “lease[] of property

and/or services.” We described the MSA as involving “services.” Avue Technologies, 22-1

BCA at 184,652 (quoting 41 U.S.C. § 7102(a)(2)). On reflection, we tend to think the MSA

involves intangible personal property, a use license. Cf. Lee’s Ford Dock, Inc. v. Secretary

of the Army, 865 F.3d 1361, 1367 (Fed. Cir. 2017) (“[L]easehold interests are items of

personal property unless a statute commands otherwise.”). The distinction does not matter,

given that the CDA applies to contracts to procure “property, other than real property in

being,” or “services.” 41 U.S.C. § 7102(a)(1), (2).

CBCA 8087(6360)-REM, 8088(6627)-REM

18

Board “must exercise its independent judgment.” Institut Pasteur, 814 F.2d at 626

(“consider[ing] . . . the language and purpose of the CDA, its legislative history and

associated regulations”); see New Era Construction v. United States, 890 F.2d 1152, 1157

(Fed. Cir. 1989) (“The Board’s decision that it lacks jurisdiction . . . may be affirmed on the

. . . ground . . . that any possible contract between New Era and [the agency] was not a

contract over which the Board had jurisdiction under the [CDA].” (emphasis added)); G.E.

Boggs & Associates, Inc., ASBCA 34841, et al., 91-1 BCA ¶ 23,515, at 117,906 (1990)

(taking jurisdiction under Disputes clause of non-CDA contract), transferred sub nom. G.E.

Boggs & Associates, Inc. v. Roskens, 969 F.2d 1023 (Fed. Cir. 1992) (finding no appellate

jurisdiction absent a CDA contract and transferring to then-Claims Court under 28 U.S.C.

§ 1631 (1988)); accord United Aeronautical Corp. v. United States Air Force, 80 F.4th 1017,

1023 (9th Cir. 2023) (“[W]e [Ninth Circuit] look to the contours of the [CDA] administrative

system to determine whether a particular claim is covered by the CDA and thus must be

litigated in the Court of Federal Claims [sic]” rather than in district court.).

We do not read the mandate as requiring us to treat the question of whether the MSA

is “covered by the CDA,” Institut Pasteur, 814 F.2d at 626, as a merits issue rather than as

a jurisdictional issue. In case we have misunderstood the mandate, we find that the MSA is

not a procurement contract within our purview, whether or not the issue is jurisdictional.

Cf. Cobra Acquisitions, LLC v. Department of Homeland Security, CBCA 7724, 23-1 BCA

¶ 38,433, at 186,783–85 (dismissing appeal for failure to state a claim where, inter alia,

(1) “even if [agency] actions created a suretyship, we would not have jurisdiction under the

CDA over this suretyship arrangement as it is not a contract for” procurement, and

(2) another “agreement is not a procurement contract over which we have jurisdiction”);

id. at 186,785 (Vergilio, J., concurring) (“What Cobra has failed to, and cannot, establish

based upon the facts asserted is that an[y] alleged contract . . . is a procurement contract

subject to the CDA, and that relief is available from this Board.”).

We previously concluded “that the MSA standing alone lacks core aspects of a CDA

procurement contract.” Avue Technologies, 22-1 BCA at 184,652. We reach the same

conclusion as a matter of law on summary judgment. We do not view the Government’s

receipt of the Avue license as, in itself, an “acquisition . . . of property or services.” See New

Era Construction, 890 F.2d at 1157 (CDA contract must be for “the acquisition by purchase,

lease or barter, of property or services for the direct benefit or use of the Federal

CBCA 8087(6360)-REM, 8088(6627)-REM

19

Government” (quoting Mayer, HUD BCA 83-823-C20, 84-2 BCA ¶ 17,494, at 87,137)).11

We explained:

Most significantly, the Government has arranged to purchase and acquire ADS

subscriptions from Carahsoft under FSS orders—not directly from Avue under

the MSA. . . . [T]he acquisition by purchase of ADS occurs when an agency

orders a subscription from Carahsoft, the schedule holder. . . . Applying the

FAR definition of “contract,”[12] the MSA does not, by its own terms, obligate

Avue to “furnish” any services unless the MSA is incorporated in a separate

federal contract (which the MSA calls the “applicable contract”) and does not

obligate the Government to “pay” Avue directly “for” an ADS subscription

under any circumstances. . . . An ordering agency owes payments under FSS

orders only to the schedule contractor, Carahsoft. See Kingdomware[,] 579

U.S. [at] 174[.] For these reasons, a claim by Avue in its own capacity for

breach of the MSA/EULA is not, regardless of its viability, a claim by a

contractor under a CDA procurement contract that our Board may resolve.

Avue Technologies, 22-1 BCA at 184,652 (internal quotation marks omitted). The

Government received conditional permission from Avue to use ADS. Carahsoft arranged

for the license to be in place in order to sell ADS subscriptions on the FSS. Neither GSA nor

FDA paid Avue. The Government did not procure the license from Avue.

Avue directed its legal arguments mainly toward showing that the MSA is binding on

FDA. We assume that to be the case.13 Our 2022 decision addressed and rejected Avue’s

contentions that the MSA is a CDA procurement contract because “it was Avue, not

Carahsoft, that provided the services” and because “FDA specifically sought to procure a

software license.” Avue Technologies, 22-1 BCA at 184,652–53 (Board concluding, “FDA

purchased the ADS subscription from Carahsoft and paid Carahsoft for it.”). We adopt the

11

The quoted italics in New Era Construction originated in Mayer. We do not

find the words “direct benefit or use” to be significant in this case. The phrase has been used

to distinguish contracts from grants and cooperative agreements. E.g., Delta State University

v. Department of Justice, CBCA 6768, 20-1 BCA ¶ 37,612, at 182,564; Latifi Shagiwall

Construction Co., ASBCA 58872, 15-1 BCA ¶ 35,937, at 175,633.

12

“Contract means a mutually binding legal relationship obligating the seller to

furnish the supplies or services (including construction) and the buyer to pay for them.”

48 CFR 2.101.

13

Because we assume an express license, we need not address Avue’s alternative

arguments for an implied license.

CBCA 8087(6360)-REM, 8088(6627)-REM

20

same reasoning now. We hold that we lack statutory jurisdiction to address the subject

matter of these appeals. Alternatively, if the MSA’s status as a procurement contract is not

a jurisdictional issue, we deny relief on the merits because the MSA is not a procurement

contract under which the CDA authorizes us to grant relief.14

We are aware that Avue raised before the Federal Circuit a new argument that

48 CFR 552.212-4(w)(1)(iv), discussed above (providing, inter alia, that an aggrieved

“licensor . . . shall pursue its rights under the Contract Disputes Act”), establishes that “the

Board has jurisdiction to hear Avue’s breach claim. That clause expressly provides the relief

that Avue seeks: the recognition that a software licensor, such as Avue, can bring a breach

of contract action directly against a government agency that breaches its EULA.” Opening

Brief for Appellant at 37, Avue Technologies Corp. v. Secretary of Health & Human

Services, No. 22-1784 (Fed. Cir. Aug. 15, 2022). We address this argument for the sake of

completeness. We do not agree that a regulation can create CDA jurisdiction that does not

otherwise exist. E.g., ECC International Constructors, LLC v. Secretary of the Army,

79 F.4th 1364, 1374 (Fed. Cir. 2023) (“Congress has not adopted the full scope of the FAR

definition [of ‘claim’].”); cf. Florida Power & Light Co. v. United States, 307 F.3d 1364,

1370–71 (Fed. Cir. 2002) (contract language cannot create jurisdiction not authorized by

CDA). Nor, in any event, do we read the GSA clause as saying that a vendor-licensor may

assert a claim directly. A subcontractor’s “rights under” the CDA may include pursuing a

pass-through claim in the name of the prime contractor. E.g., International Technology

Corp. v. Winter, 523 F.3d 1341, 1347–48 (Fed. Cir. 2008); E.R. Mitchell Construction Co.

v. Danzig, 175 F.3d 1369, 1371 (Fed. Cir. 1999).. A natural reading of the GSA clause is

that it refers to pass-through claims by subcontractor-licensors. E.g., immixTechnology, Inc.

v. Department of the Interior, CBCA 5866, 22-1 BCA ¶ 37,999 (2020).

Also for completeness, we reject again Avue’s argument that we have jurisdiction

because the MSA is “related to” Carahsoft’s CDA contracts. “No court or board of which

we are aware has held that a party other than the prime contractor can establish CDA

jurisdiction by relying on a separate agreement that relates to a CDA procurement contract.

We will not be the first.” Avue Technologies, 22-1 BCA at 184,653.

14

Our alternative holding applies equally to the express terms of the MSA and

to any implied duty of good faith and fair dealing under the MSA.

CBCA 8087(6360)-REM, 8088(6627)-REM

21

Decision

We DISMISS FOR LACK OF JURISDICTION the appeals; alternatively, if the

issue of whether the MSA is a CDA procurement contract is not jurisdictional, we grant the

agencies’ motion for summary judgment, deny Avue’s motion for partial summary judgment,

and DENY the appeals.

Kyle Chadwick

KYLE CHADWICK

Board Judge

We concur:

Patricia J. Sheridan

PATRICIA J. SHERIDAN

Board Judge

Kathleen J. O’Rourke

KATHLEEN J. O’ROURKE

Board Judge