       United States Court of Appeals for the Federal Circuit

                                         05-1522

                             WESLEYAN COMPANY, INC.,

                                                      Appellant,

                                            v.

                                  Francis J. Harvey,
                              SECRETARY OF THE ARMY,

                                                      Appellee.



       Richard L. Moorhouse, Greenberg Traurig, LLP, of McLean, Virginia, argued for
appellant. With him on the brief was L. James D’Agostino.

       David A. Harrington, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for appellee. On the brief were
Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Brian M. Simkin,
Assistant Director, and Tara K. Hogan, Trial Attorney. Of counsel on the brief was Craig S.
Clarke, Supervisory Trial Attorney, Contract Appeals Division, Office of the Judge
Advocate General, United States Department of the Army, of Arlington, Virginia.

Appealed from:   Armed Services Board of Contract Appeals
 United States Court of Appeals for the Federal Circuit

                                        05-1522

                            WESLEYAN COMPANY, INC.,

                                                Appellant,

                                           v.

                                 Francis J. Harvey,
                             SECRETARY OF THE ARMY,

                                                Appellee.


                            _________________________

                                DECIDED: July 17, 2006
                            _________________________


Before MICHEL, Chief Judge, NEWMAN and MAYER, Circuit Judges.

Opinion for the court filed by Chief Judge MICHEL. Dissenting opinion filed by Circuit
Judge NEWMAN.

MICHEL, Chief Judge.

      Wesleyan Company, Inc. (“Wesleyan”) appeals the decision of the Armed

Services Board of Contract Appeals (“Board”) dismissing for lack of subject matter

jurisdiction its breach of contract claim against the United States.     Wesleyan Co.,

ASBCA No. 53896, 05-1 BCA P32,950 (April 22, 2005). Because the Board erred in

concluding that the Contract Disputes Act of 1978, § 3(a), 41 U.S.C. § 602(a) (“CDA”),

does not confer subject matter jurisdiction over a portion of Wesleyan’s claim, we

reverse and remand.
                                                I

          In the early 1980s, Wesleyan communicated to the United States Army its

concepts for its “FIST/FLEX” drinking system, which allows a soldier to consume liquid

from a canteen without removing his protective mask, and its “FIST Fountain” system,

designed to enable soldiers to fill empty canteens in a contaminated environment

(collectively, “Wesleyan system”). Beginning in early 1983, and acting upon the Army’s

advice, Wesleyan sent the first of three unsolicited proposals for the Wesleyan system

to multiple Army components.          The U.S. Army’s Soldier and Biological Chemical

Command, U.S. Army Soldier System Center in Natick, Massachusetts (“Natick Labs”)

assumed responsibility for the analysis of the Wesleyan system. Natick Labs rejected

Wesleyan’s proposal in April 1983 because it did not contain a Defense Acquisition

Regulation (“DAR”) legend discussing government use of the unsolicited information.

          After discussions with Natick Labs, Wesleyan resubmitted the unsolicited

proposal with DAR 3-507.1(a) included and executed a Memorandum of Understanding

(“MoU"), both of which prohibited the government from disclosing information in the

proposal to third parties and from using the information for any purpose other than

evaluating the proposal.1

          1
                DAR 3-507.1(a) reads in relevant part:

          This data . . . shall not be disclosed outside the Government and shall not
          be duplicated, used or disclosed in whole or in part for any purpose other
          than to evaluate the proposal. . . . This restriction does not limit the
          Government’s right to use information contained in the data if it is obtained
          from another source without restriction. . . .

(cont.)




05-1522                                        2
      After determining that the Wesleyan system was technically feasible, Natick Labs

requested in November 1983 that Wesleyan lend a prototype system to ILC Dover, a

manufacturer of protective suits and masks, for incorporation into a prototype protective

suit. The bailment agreement, executed on December 1, 1983, was silent as to the

safeguarding or use of proprietary data in the Wesleyan system, but did state that the

bailment was being made “for the limited purpose” of determining “its use in

demonstrating and testing its ability to perform the intended services”. The bailment

agreement expressly stated that the Wesleyan system remained Wesleyan’s property.

      Beginning on May 10, 1984, the Army initiated purchases of the Wesleyan

systems, which were used in field tests at Natick Labs and other Army units, including

the Infantry School at Fort Benning, Georgia, and the Chemical School at Fort Leonard

Wood, Missouri. The Army purchased nine systems during 1984.

      On January 15, 1985, the Army required Wesleyan to sign a Policy Statement for

continued evaluation of the Wesleyan system. The Policy Statement contained the

following clause:

             4. The voluntary submissions will be handled in accordance with
      established Government procedures for safeguarding such articles or
      information against unauthorized disclosure. In addition, the data forming
      a part of or constituting the submission will not be disclosed outside the


The MoU reads in relevant part:

      It is understood that the Department of the Army has accepted the above
      proposal for the purpose of evaluating it and advising of any possible
      Army interest. It is further understood that such acceptance does not
      imply or create: . . . any relationship, contractual or otherwise, such as
      would render the Government liable to pay for or to give up any legal right
      or assume any obligation for disclosure or use of any information in the
      proposal to which the Government would otherwise lawfully be entitled.

Two other unsolicited proposals were submitted at later dates.


05-1522                                    3
       Government or be duplicated, used or disclosed in whole or in part by the
       Government, except for record purposes or to evaluate the proposal.

Following execution of this Policy Statement, the Army purchased an additional twenty

Wesleyan systems during 1985.        In January 1986, the Army required Wesleyan to

execute a second, similar Policy Statement. Following execution of this second Policy

Statement, the Army purchased thirty-three systems in 1988, and sixty-eight systems in

1989, for a total of 130 systems.

       The Army purchases were governed by six purchase orders, all of which were

silent as to the safeguarding or use of proprietary data.       However, four of the six

purchase orders stated that the purchases were being made for evaluative or

demonstrative purposes.2     In 1992, the Army completed its testing and terminated

consideration of the Wesleyan system.

       Beginning in 1996, Natick Labs initiated development of the Land Warrior /

Modular Lightweight Load Carry Equipment system (“MOLLE”), which included a

hydration system, and awarded a primary contract for MOLLE in May 1997 to Specialty

Plastic Products of PA, Inc. (“Specialty”). The commercial hydration system then used

in MOLLE was received poorly by users, and the Marine Corps noted that a large

number of Marines instead were purchasing a commercially available hydration system

produced by CamelBak Products, Inc. (“CamelBak”). Specialty replaced the hydration

system in MOLLE with CamelBak’s hydration system in 1998.



       2
               One purchase order stated that the “[i]tems are needed at the Infantry
School for a limited user evaluation”, another indicated that “[t]his item is being procured
as NDI prototypes, for initial evaluation to determine its acceptability with respect to the
Mask Drinking System SN-CIE”, a third noted that “[t]he items are urgently required for
the upcoming p2 NBC2 Demo in April 1985”, and the fourth specified that “[t]hese items
are required for the upcoming Natick/HEL 1985 New Thrust Demo in August 1985.”


05-1522                                      4
      On April 15, 2002, Wesleyan submitted a claim for nearly $21 million to Natick

Labs, alleging that the Army improperly disclosed Wesleyan’s proprietary data to non-

governmental third parties, and that its proprietary information was subsequently

incorporated into the CamelBak system. The Army Contracting Officer (“CO”) issued a

final decision denying Wesleyan’s claim for lack of jurisdiction under the CDA on July

19, 2002, and Wesleyan appealed to the Board.

      On May 7, 2004, the Board granted the Army’s motion for partial summary

judgment, holding that, to the extent any proprietary data was disclosed publicly in

Wesleyan’s patents,3 the Army was entitled to disseminate that information. In other

words, the Board held that all information disclosed to the Army and not taught by the

patents was to be protected from third parties.

      The Board also determined that the Army’s acceptance of Wesleyan’s unsolicited

proposals created a contract permitting the government to use the proposal data “in

accordance with the DAR legend and memoranda of understanding.” The Board then

held that the resulting confidentiality agreement applied only to the unsolicited

proposals, not to the subsequent bailment agreement or purchases, and sua sponte

requested the parties to brief whether the Board possessed subject matter jurisdiction

over the dispute. Following the submission of briefs, the Army moved to dismiss for

lack of subject matter jurisdiction, and the Board granted that motion on April 22, 2005.

      Wesleyan appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(10).




      3
           Mr. Wesley Schneider, the president of Wesleyan, obtained patents on the
FIST/FLEX and FIST Fountain systems in 1985 and 1987, respectively.


05-1522                                     5
                                             II

       The sole issue on appeal is whether the pleaded contracts are covered by the

CDA. Statutory interpretation is a question of law that we review de novo. Minn. Power

and Light Co. v. United States, 782 F.2d 167, 169 (Fed. Cir. 1986).

       We begin our analysis with the language of the statute. Institut Pasteur v. United

States, 814 F.2d 624, 627 (Fed. Cir. 1987).        Pursuant to the CDA, the Board has

subject matter jurisdiction over “any express or implied contract . . . entered into by an

executive agency for—(1) the procurement of property, other than real property in

being.” 41 U.S.C. § 602(a). “Procurement” is “the acquisition by purchase, lease or

barter, of property or services for the direct benefit or use of the Federal Government.”

New Era Constr. v. United States, 890 F.2d 1152, 1157 (Fed. Cir. 1989) (emphasis in

original).

       Here, three types of agreements are at issue: the unsolicited proposals; the

bailment agreement; and the purchase orders. Although the bailment agreement does

involve, and the unsolicited proposals arguably involve, the transfer of “property”,

neither involve “acquisition . . . by such means as . . . renting [or] leasing”, as Wesleyan

did not receive any value in exchange. As such, the unsolicited proposals and bailment

agreement were donative in nature.

       The purchase orders, in contrast, involve the exchange of property for money,

and thus involve “procurement”. The Board erred by ignoring this critical exchange.

Accordingly, the Board erred by categorizing Wesleyan as a “bidder”, and thus in relying

on our decision in Coastal Corp. v. United States, 713 F.2d 728 (Fed. Cir. 1983). In

Coastal Corp., the Army had not engaged in any “procurement” activities, and had




05-1522                                      6
instead cancelled a bid solicitation prior to awarding a contract. Id. at 729. We held that

the CDA “deals with contractors, not with disappointed bidders.” Id. at 730. Wesleyan,

however, is more than a disappointed bidder. Although here, the Army had not yet

awarded Wesleyan a final contract to provide the FIST/FLEX system to soldiers, the

Army had purchased FIST/FLEX prototypes for testing. This purchasing activity was

sufficient to transform the Army’s relationship with Wesleyan from that of evaluator and

bidder to that of buyer and seller. Accordingly, Coastal Corp. is distinguishable.

       We turn now to the question of whether the information contained in the

purchase orders was sufficient to constitute a procurement “contract”. The purchase

orders specify the parties involved, delivery instructions, price, payment terms, and

transportation instructions. No essential term is missing.4 Although Wesleyan did not

sign the purchase orders, it performed, which clearly signals acceptance.            Taken

together, the purchase orders and Wesleyan’s performance contain all essential

contract terms and demonstrate mutual assent to a procurement contract.

       Thus, pursuant to the CDA, the Board possesses limited subject matter

jurisdiction over this suit insofar as Wesleyan’s claim involves a breach of the purchase

orders, which constitute procurement contracts. Because Wesleyan alleges a breach of

the confidentiality agreement, however, Wesleyan has stated a claim upon which relief

may be granted only if the confidentiality agreement was incorporated into the

procurement contracts. On remand, the Board should first determine whether language

on four of the six purchase orders indicating that the Wesleyan systems are being

       4
             The complete exchange between the parties is no doubt even more robust
than the information contained in the record. For example, oral discussions are
referenced on the purchase orders, and the record does not include the content of those
discussions.


05-1522                                     7
purchased for evaluative or demonstrative purposes is sufficient to incorporate by

reference previously executed documents relating to the evaluative process, namely the

confidentiality provisions of the DAR legend, MoU, and Policy Statements. If the Board

answers this question affirmatively, then it may entertain only those portions of

Wesleyan’s complaint alleging a breach of the confidentiality agreement as incorporated

into the procurement contracts.      Accordingly, we turn next to Wesleyan’s specific

allegations of breach.

       Wesleyan alleges four specific instances of breach in its complaint.           First,

Wesleyan alleges that conceptual information disclosed to the Army’s Chemical

Systems Laboratory at Aberdeen Proving Grounds, Maryland (“Aberdeen Proving

Grounds”) prior to the submission of its first unsolicited proposal was divulged to a direct

competitor.   Specifically, Wesleyan alleges that “the head of the [Army] Chemical

Systems Laboratory’s Mask Management Office was consulted regarding the viability of

Wesleyan’s hydration systems concepts” and that “[u]pon information and belief, this

individual later was employed by . . . ILC Dover, Inc.” (Compl. ¶ 11-13.) Because, as

explained above, a CDA contract would not have arisen until the Army procured

prototypes, the Board does not have jurisdiction over this portion of Wesleyan’s claim.

       We address Wesleyan’s second, third, and fourth allegations together.

Wesleyan’s second allegation is that prior to June 1985, the Army improperly disclosed

and conveyed concepts from the Wesleyan system to the Battelle Memorial Institute, a

contractor at Aberdeen Proving Grounds.           Wesleyan alleges that Battelle used

Wesleyan’s concepts in its June 1985 report “regarding the need to improve the Army’s

mask drinking system”, and further alleges that “Battelle in turn revealed Wesleyan’s




05-1522                                      8
proprietary concepts to other contractors responsible for mask deployment and soldier

hydration.” (Compl. ¶ 25-27.) Third, Wesleyan alleges that “in 1986 employees of the

Army’s Chemical Research and Development Center (“CRDC”) [a precedessor to the

Army’s Chemical Systems Laboratory at Aberdeen Proving Grounds] released

Wesleyan’s proprietary information directly to employees of ILC Dover without

permission from Wesleyan.” (Compl. ¶ 38.) Wesleyan explains that ILC Dover “was

working with CRDC to develop a competing concept with the FIST/FLEX device.”

(Compl. ¶ 39.) Fourth, Wesleyan asserts that because Army files from the early 1990s

contained Camelbak’s brochure for its drinking system, which disclosed certain features

of the FIST/FLEX design, the Army improperly disclosed to Camelbak “concepts and

intellectual property contained in Wesleyan’s unsolicited proposals and in the prototypes

submitted for testing purposes under the above-discussed bailment agreement and

purchase orders.” (Compl. ¶ 60.)

       Because the Army purchased some of the prototype Wesleyan systems prior to

these alleged disclosures, the Board possesses jurisdiction to decide Wesleyan’s

remaining allegations. As explained above, the unsolicited proposals and prototype

submitted pursuant to the bailment agreement do not fall within the Board’s jurisdiction.

To succeed, then, Wesleyan must prove that the Army obtained the confidential

information that it later disclosed improperly not from the unsolicited proposals, nor from

the bailment, but solely from the prototypes purchased and evaluated. In other words,

to the extent Wesleyan alleges that the information disclosed improperly by the Army

was gleaned solely from the prototypes purchased by the Army, the Board may

entertain Wesleyan’s claim.




05-1522                                     9
                                            III

       Wesleyan made a strategic decision to pursue its claim before the Board, and

this forum choice has significantly limited the scope of its potential relief. Had Wesleyan

desired to pursue all allegations contained in its complaint, it could have brought suit in

the United States Court of Federal Claims under the Tucker Act, 28 U.S.C. §

1491(b)(1), which grants jurisdiction over disputes involving “any express or implied

contract with the United States”. Indeed, because, unlike the CDA, the Tucker Act does

not require that the contract with the United States relate to procurement, the Court of

Federal Claims would have possessed subject matter jurisdiction here even if the Army

had not purchased any Wesleyan systems, and had breached the confidentiality

agreement solely by disclosing information contained in the unsolicited proposals and/or

bailment. By opting to pursue its claim before the Board, Wesleyan limited the scope of

its dispute to the CDA, and thus to the prototypes obtained through the purchase

orders.   Nonetheless, Wesleyan is entitled to a full and fair determination of the

procurement-related portion of its claim before the Board.

                                            IV

       In sum, the Board possesses subject matter jurisdiction over a subset of

Wesleyan’s claim. Because the unsolicited proposal and bailment agreement do not

involve procurement, those agreements are not subject to the CDA. Accordingly, the

Board does not have jurisdiction to hear allegations of breach arising from disclosure of

information acquired from the unsolicited proposals or the prototype loaned pursuant to

the bailment agreement.




05-1522                                     10
       However, the Army also purchased prototypes from Wesleyan pursuant to

purchase orders containing all essential contract terms. Accordingly, that portion of the

dispute arises under a procurement contract, which the Board has jurisdiction over

pursuant to the CDA.      Because Wesleyan asserts a breach of the confidentiality

provisions, it has stated a claim upon which relief may be granted only if the

procurement contracts at issue here—the purchase orders—incorporate by reference

the previously executed confidentiality provisions. To succeed on the merits, Wesleyan

must prove that the Army obtained confidential information later disclosed improperly

not from the unsolicited proposals, and not from the bailment, but solely from the

prototypes purchased.

       We thus reverse the decision of the Board dismissing Wesleyan’s claim for lack

of jurisdiction, and remand for further proceedings consistent with this opinion.

                             REVERSED AND REMANDED.




05-1522                                     11
United States Court of Appeals for the Federal Circuit


                                         05-1522



                             WESLEYAN COMPANY, INC.,

                                                        Appellant,

                                             v.

                                  Francis J. Harvey,
                              SECRETARY OF THE ARMY,

                                                        Appellee.




NEWMAN, Circuit Judge, dissenting.




       I respectfully dissent. The Board of Contract Appeals has jurisdiction and authority

to decide all of the asserted breaches of the confidentiality provisions related to the

contracts between Wesleyan and the Army with respect to this drinking mask. The court's

decision, separating the various steps in this relatively simple procurement, can have large

consequences for dispute resolution.

       The Contract Disputes Act does not withhold from the boards of contract appeals the

authority to consider the entirety of the claim. There is no basis in the Contract Disputes

Act for segregating the contract-based confidentiality obligations that were incurred at the

beginning and at the end of this procurement, from that in the middle. Many procurements

start with an offer and then a prototype and then a larger-scale evaluation, all accompanied
by standard written confidentiality provisions. My concern with the panel majority's ruling is

that it parses the various stages at which the offeror provided confidential information,

when all of these stages are part of one overall supply proposition, and are part of one

overall claim.

       The government required a confidentiality agreement when Wesleyan submitted the

prototypes, and Wesleyan then resubmitted the prototypes with the appropriate

confidentiality notices in the form of Defense Acquisition Regulation legend 3-507.1(a) and

a Memorandum of Understanding. We need not decide the effect of these confidentiality

agreements in isolation, for the evaluation of Wesleyan's drinking system resulted in a

procurement contract. The steps of the evaluation of Wesleyan's technology were part of

the normal negotiation process, which in this case resulted in a contract for sale; each of

the stages of the procurement were part of one overall contracting process.

       The purpose of the Contract Disputes Act is to facilitate the fair and efficient

resolution of contract disputes. As explained in testimony during consideration of the Act:

       It is in the Government's selfish interest to be fair in its dealings with its
       contractor citizens. Unfair procedures drive the most essential and efficient
       contractors out of competition for Government contracts, and cause those
       who remain, to submit consistently higher prices which neither the taxpayer
       nor the Nation can any longer afford. The cost of diminished competition is
       not readily measurable, but it is unquestionably huge.

Testimony of Judge L. Spector, Contract Disputes: Hearings Before the Subcommittee on

Administrative Law and Governmental Relations of the Committee on the Judiciary 95th

Cong. First Session on H.R. 664 and Related Bills at 107 (1978). Fairness requires not

only protection of the proprietary information of contractors, but also the right to litigate the

issues of proprietary information if the ensuing contract is litigated. The confidentiality



05-1522                                        2
provisions herein are part of an integrated procurement, and the Contract Disputes Act

gives the Board jurisdiction over disputes arising anywhere in the process. From the

court's failure to recognize and authorize the Board to resolve all of the disputes associated

with the contract I must, respectfully, dissent.




05-1522                                       3
