MOTION TO DISMISS FOR LACK OF JURISDICTION DENIED: March 10, 2015

MOTION TO DISMISS FOR LACK OF JURISDICTION DENIED: March 10, 2015

CBCA 2294

AMERICOM GOVERNMENT SERVICES,

Appellant,

v.

GENERAL SERVICES ADMINISTRATION,

Respondent.

Thomas L. McGovern, III and Brendan M. Lill of Hogan Lovells US LLP,

Washington, DC, counsel for Appellant.

Jennifer L. Howard, Office of General Counsel, General Services Administration,

Washington, DC, counsel for Respondent.

Before Board Judges POLLACK, GOODMAN, and SHERIDAN.

POLLACK, Board Judge.

The General Services Administration (GSA) has filed a motion to dismiss for lack of

jurisdiction on the remaining issue left in this appeal. In our ruling of August 13, 2014, on

the parties’ cross motions for summary relief, we ruled in favor of GSA on two matters and

against it on another. Americom Government Services, Inc. v. General Services

Administration, CBCA 2294, 14-1 BCA ¶ 35,687. We determined in this case, involving a

dispute over payment for satellite services, that appellant could not prove there was an

express contract, nor could appellant establish an implied contract that was approved or

ratified by the contracting officer or another official with contracting authority. We,

however, also ruled that while appellant could not prove the existence of an implied-in-fact

CBCA 2294

2

contract based upon acceptance by an authorized contracting official, it could still proceed

on the theory that there was a contract based upon institutional ratification.

In this new motion, GSA asserts that we have no jurisdiction to adjudicate the

remaining issue as to whether a contract was created through institutional ratification. GSA

also chooses in its filing to re-argue factual matters that have already been dealt with in our

earlier ruling. We do not re-address those factual matters in this ruling. For purposes of

background, we refer the reader to our findings in the earlier ruling.

GSA contends that by our determining in the earlier ruling that appellant could not

establish either an express or implied-in-fact contract for procurement of the licenses, we

negated any possible basis for appellant to pursue relief through institutional ratification. Put

another way, GSA contends that since the Board ruled that there was no express or impliedin-fact contract, we must be basing our jurisdiction over the institutional ratification on a

contract implied-in-law. A contract implied-in-law is a contract where duties are imposed

which are deemed to have arisen by operation of law and not by agreement of the parties.

That is in contrast to a contract implied-in-fact, which is a contract based upon a meeting of

the minds. See Hercules, Inc. v. United States, 516 U.S. 417, 423 (1996 ); Garrett v. United

States, 78 Fed. Cl. 668 (2007). It is black letter law that we have no jurisdiction over

implied-in-law contracts. City of El Centro v. United States, 922 F.2d 816, 823 (Fed. Cir.

1990); Angel Menendez Environmental Services, Inc. v. Department of Veterans Affairs,

CBCA 19864, et al., 08-1 BCA ¶ 33,731 (2007). However, in this matter we have never

found or even suggested the existence of implied-in-law contract, and the facts would not

support such a conclusion. Rather, any reasonable reading of our ruling provides that a

contract based upon institutional ratification is a form of an implied-in-fact contract. The

cases we cited in our earlier ruling as to institutional ratification discussed institutional

ratification in the context of an implied-in-fact contract.

However, as we explained, a contract relying upon institutional ratification differs

from the conventional procurement contract in that it does not require there to be some

otherwise crucial elements. In our ruling we noted that the primary difference between a

procurement contract created through institutional ratification and a conventional implied-infact contract is that a party asserting institutional ratification need not show that there was

approval or ratification by an official with contracting authority. Under the institutional

ratification theory, the Government, under limited circumstances, can be held liable on a

contract which would not otherwise meet legal requirements. Since the issue of authority

could have been fatal to appellant, we focused on that. We did not need or choose to further

amplify what, if any, other circumstances might support our finding of a contract based upon

institutional ratification. What we did find was that in the limited circumstances of

institutional ratification, approval or ratification can be by another official (one without

3

CBCA 2294

contracting authority), provided that such official meets the criteria set out in case law. In

ruling as we did, we found, in taking all reasonable inferences in appellant’s favor, that

appellant had provided sufficient evidence to establish an implied-in-fact contract with the

Government through institutional ratification. We not only found that appellant might

establish the necessary ratification by a non-contracting official, but also, implicitly that

appellant might establish other associated elements, such as government knowledge and

consideration.

In our earlier ruling our determination that appellant could not establish an implied-infact contract was clearly aimed at the arguments relating to a contract requiring agreement

by an official with contracting authority. We specifically differentiated that circumstance

from a contract based upon institutional ratification. Nothing in our ruling even suggested

that we were allowing the institutional ratification matter to proceed based upon a contract

implied-in-law. In fact, one of the cases we cited specifically states that institutional

ratification can create an implied-in-fact contract. Janowsky v. United States, 133 F.3d 888,

892 (Fed. Cir. 1998). GSA’s motion to dismiss is denied.

Decision

We find no merit in the GSA motion. Respondent’s MOTION TO DISMISS FOR

LACK IS JURISDICTION is DENIED. The case is to move forward on the issue of

institutional ratification.

__________________________

HOWARD A. POLLACK

Board Judge

We concur:

ALLAN H. GOODMAN

Board Judge

PATRICIA J. SHERIDAN

Board Judge