              ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of--                                )
                                           )
Parsons Government Services, Inc.          )      ASBCA No. 60663
                                           )
Under Contract No. M67854-09-D-8000        )

APPEARANCES FOR THE APPELLANT:                    Michael R. Rizzo, Esq.
                                                  Mary E. Buxton, Esq.
                                                   Pillsbury Winthrop Shaw Pittman LLP
                                                   Los Angeles, CA

APPEARANCES FOR THE GOVERNMENT:                   Ronald J. Borro, Esq.
                                                   Navy Chief Trial Attorney
                                                  Anthony K. Hicks, Esq.
                                                  David B. Stinson, Esq.
                                                   Trial Attorneys

              OPINION BY ADMINISTRATIVE JUDGE O'SULLIVAN
                ON THE GOVERNMENT'S MOTION TO DISMISS
                     FOR FAILURE TO STATE A CLAIM

       Parsons Government Services, Inc. (Parsons) appeals from a deemed denial of a
$20,899,704 claim asserting that the government incorrectly expended operation and
maintenance (O&M) funds instead of military construction (MILCON) funds and thus
the contract should be considered void ab initio, allowing Parsons to recover in
quantum meruit. The government moves to dismiss for failure to state a claim upon
which relief can be granted. We grant the motion and dismiss the appeal. 1

       STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

       1. On 18 March 2009, the government awarded Contract No. M67854-09-D-8000
(contract) to Parsons Infrastructure & Technology Group 2 for Military Operations in
Urban Terrain (MOUT) training systems for the United States Marine Corps (R4, tab 1).



1
  ASBCA No. 60663 is consolidated with ASBCA No. 60662. The motion pertains to
       ASBCA No. 60663 only.
2
  By contract Modification No. P00006 dated 10 June 2009, the contractor name was
       changed from "Parsons Infrastructure & Technology Group" to "Parsons
       Government Services, Inc." (R4, tab 7).
The contract was a requirements contract and included a five-year ordering period
(id. at 1043, 1126-27).

        2. By letter dated 16 October 2015, Parsons submitted a certified claim
of $20,899,704 to the contracting officer alleging that the government should have
awarded the contract as a construction contract appropriating MILCON funds instead
ofa supply and services contract using O&M funds (app. supp. R4, tab 2 at 39, 41).
Parsons alleges that because of this, "the contract should be rescinded as a matter
of law and Parsons is entitled to quantum meruit on its fixed-price work - i.e., the
actual cost of the work Parsons performed on firm-fixed price tasks plus a reasonable
profit on that actual cost" (id.).

       3. By letter dated 19 October 2015, Parsons submitted a second certified claim
for $16,478,454 to the contracting officer alleging that the government materially
breached the requirements provisions of the contract by awarding work to other
companies, constructively changing the contract by awarding out of scope work,
refusing to pay for concrete, and delaying and interfering with Parsons' performance
(app. supp. R4, tab 3).

       4. On 6 July 2016, Parsons filed its appeals from deemed denials of its claims
dated 16 and 19 October 2015. The appeal from the deemed denial of the claim dated
19 October 2015 was docketed as ASBCA No. 60662. The appeal of the deemed
denial of the claim dated 16 October 2015 was docketed as ASBCA No. 60663.
ASBCA Nos. 60662 and 60663 were subsequently consolidated. The government's
motion to dismiss for failure to state a claim upon which relief can be granted only
encompasses ASBCA No. 60663.

                                     DISCUSSION

        The government moves to dismiss this appeal for failure to state a claim upon
which relief can be granted. The government argues that Parsons failed to put forth
facts and allegations which would entitle it to a legal remedy, that the federal statute
which was allegedly violated provides no private cause of action, and that judicial
invalidation of a fully performed contract is generally disfavored. Parsons disputes the
government's arguments and states that both of its causes of action, that the contract
was illegal and is void ab initio and that the government breached the duty of good
faith and fair dealing, state a claim upon which relief can be granted. Parsons requests
an opportunity to amend its complaint should we agree with the government that
Parsons fails in its claim to state a ground upon which relief can be granted.

        Parsons' claim states that the predecessor to the contract at issue in this appeal
was funded with MILCON funds (app. supp. R4, tab 2 at 44). Parsons alleges that
since its contract was not funded with MILCON funds it "eliminated Congress' ability


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to authorize and appropriate the work and perform its oversight and resulted in a
contract that did not include the proper terms, such as those requiring Davis Bacon Act
wage determinations 3 and FAR clauses applicable to apprentices and disputes in labor
standards" (id. at 45). Parsons then states that since the contract required construction
work and was not funded with MILCON funds, that the contract was tainted by the
illegality and is thus void ab initio and Parsons should be able to recover in quantum
meruit (id. at 50). In Parsons' complaint, it alleges that the government breached the
contract by using O&M funds instead of MILCON and as a result "it was not fully
compensated for construction work it performed" (compI. ~ 50). Parsons fails to
explain in its complaint how the use of O&M versus MILCON funds led to its not
being "fully compensated" for its work.

        Parsons' response to the government's motion to dismiss further elaborates on
Parsons' claim. Parsons argues in its response that by using O&M funds instead of
MILCON, the government "induced Parsons to perform a different type of contract
than that solicited and prevented Parsons from realizing its reasonable expectations"
(app. resp. at 4). Parsons also states that it suffered "direct and actual harm" by
performing the work under a contract funded by O&M funds since the "Marine Corps
materially changed Parsons' design requirements, accelerated its responsibilities,
and delayed and interfered with work execution during delivery order performance"
(id. at 5-6). Of note, Parsons states that this direct and actual harm is the subject of its
claim arising under the same contract, currently appealed and docketed as ASBCA
No. 60662 (id. at 6). Parsons also asserts, for the first time in its response, that the
government breached the contract and violated the implied duty of good faith and fair
dealing by depriving Parsons of its reasonable expectations that the contract would
have the necessary Congressional oversight and more stringent terms consistent with a
MILCON-funded contract (id. at 7-8).

        Dismissal for failure to state a claim upon which relief can be granted is
appropriate where the facts asserted in the complaint do notentitle the claimant to a
legal remedy. Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). The
Board will grant a motion to dismiss for failure to state a claim when the complaint
fails to allege facts plausibly suggesting (not merely consistent with) a showing of
entitlement to relief. Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir. 2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007)). 4 In deciding a
motion to dismiss for failure to state a claim, "the court must accept well-pleaded

3 By contract Modification No. P00005 dated 10 June 2009, the government modified
       the contract to add Davis-Bacon Act wage determinations (R4, tab 6).
4 While the Federal Rules of Civil Procedure do not apply to proceedings before the

       Board, we may look to them for guidance, particularly in areas not addressed by
       our own rules. Dennis Anderson Constr. Corp., ASBCA Nos. 48780, 49261,
       96-1BCA~28,076 at 140,188.


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factual allegations as true and must draw all reasonable inferences in favor of the
claimant." Kellogg Brown & Root Services, Inc. v. United States, 728 F.3d 1348, 1365
(Fed. Cir. 2013). In this review, "[w]e decide only whether the claimant is entitled to
offer evidence in support of its claims, not whether the claimant will ultimately prevail."
Matcon Diamond, Inc., ASBCA No. 59637, 15-1 BCA ii 36,144 at 176,407. The scope
of our review is limited to considering the sufficiency of allegations set forth in the
complaint, "matters incorporated by reference or integral to the claim, items subject to
judicial notice, [and] matters of public record." A&D Auto Sales, Inc. v. United States,
748 F.3d 1142, 1147 (Fed. Cir. 2014) (citing SB CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE§ 1357 (3d ed. 2004)). For purposes of
assessing whether an appeal before us states a claim upon which relief can be granted,
the primary document setting forth the claim is not the complaint, per se, but the
contractor's claim submitted to the contracting officer. Lockheed Martin Integrated
Systems, Inc., ASBCA Nos. 59508, 59509, 17-1 BCA i\ 36,597 at 178,281.

       The government primarily relies on United Pacific Insurance Company v.
United States, 464 F.3d 1325 (Fed. Cir. 2006), in support of its motion to dismiss. In
United Pacific, the plaintiff-appellants were Miller Act sureties on a government
construction project who argued that the contract entered into with the government
was illegal and thus void due to fiscal law violations and sought recovery in quantum
meruit. Id. at 1326. The Federal Circuit held that neither statute in issue (10 U.S.C.
§§ 2805, 2811) provided for invalidation of contracts which violated its provisions.
United Pacific, 464 F.3d at 1330. The Federal Circuit also held that its en bane
opinion in American Telephone and Telegraph Co. v. United States, 177 F.3d 1368
(Fed. Cir. 1999) (en bane) ("AT&T III") was dispositive ofUnited Pacific's appeal.
United Pacific, 464 F .3d at 1331.

        In AT&T Ill, the government failed to comply with a statute's requirements
before entering into a fixed-price contract for the development of a major system or
subsystem exceeding $10 million. AT&T Ill, 177 F.3d at 1369. The Federal Circuit
held that "(i]nvalidation of the contract is not a necessary consequence when a statute
or regulation has been contravened, but must be considered in light of the statutory
or regulatory purpose, with recognition of the strong policy of supporting the
integrity of contracts made by and with the United States." AT&T Ill, 177 F.3d at 1374.
The court further stated that "the policy underlying the enactment must be considered in
determining the remedy for its violation, when the statute itself does not announce
the sanction of contract invalidity." Id. Our cases also hold that "[i]llegal acts
by a Government contracting agent do not alone taint a contract and invoke the
void ab initio rule." United Technologies Corp., ASBCA No. 46880 et al., 95-1 BCA
ii 27,538 at 137,230, recon. denied, 95-2 BCA ii 27,698 (citing Godley v. United States,
5 F.3d 1473, 1476 (Fed. Cir. 1993)).




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        The Federal Circuit has held that "[t]he primary intent of a statute or regulation
must be to protect or benefit a class of persons in order for that class to be able
to bring suit against the government for violating the statute or regulation."
Cessna Aircraft Co. v. Dalton, 126 F.3d 1442, 1451 (Fed. Cir. 1997). Furthermore,
"if the primary intended beneficiary of a statue or regulation is the government, then
a private party cannot complain about the government's failure to comply with
that statute or regulation, even if that party derives some incidental benefit from
compliance with it." Id. at 1451-52. The Federal Circuit in United Pacific found
that the purposes behind 10 U.S.C. §§ 2805 and 2811 was "agency flexibility
through decentralization, as well as the limitation of spending and waste through
Congressional oversight," not to enable contractors to assert a private cause of action.
United Pacific, 464 F .3d at 1331. The court rejected United Pacific's attempts to
distinguish the holding in AT&T III, and affirmed the dismissal for failure to state a
claim.

       Parsons in this appeal cites generally to 10 U.S.C. §§ 2801 et. seq. as requiring
major construction to be funded by MILCON funds and 10 U.S.C. §§ 2801, 2802, and
2805 as requiring notice to Congress and approval for all military construction projects in
excess of$3 million (compl. ~~ 17, 36). Parsons' claim also makes the same arguments
(see app. supp. R4, tab 2 at 48-50). Section 2805 was held in United Pacific not to
contemplate a private cause of action, and Parsons has not drawn our attention to any
language in the other two statutes it cites that might dictate a different result.

       Both of Parsons' causes of action in this appeal are rooted in the alleged fiscal
law violations 5 • We find United Pacific to be controlling here. We do not think that
Parsons can "prove any set of facts in support of its claim that would entitle it to relief."
Great Lakes Dredge and Dock Company, ASBCA Nos. 53929, 54266, 04-1 BCA
~ 32,518 at 160,862 (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). For that
reason, we deny Parsons' request to be allowed to amend its complaint.




5   Parsons' claim did not set forth the argument that the government breached the
         contract by violating the implied duty of good faith and fair dealing (SOF ~ 2).
         Under the Contract Disputes Act, the Board has jurisdiction over disputes based
         upon claims that a contractor has first submitted to the contracting officer for
         decision and lacks jurisdiction over claims raised for the first time on appeal, in
         a complaint or otherwise. 41 U.S.C. §§ 7103-7105. Because we find Parsons'
         breach claim is rooted in the alleged fiscal law violation, we need not consider
         this jurisdictional issue.

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                                       CONCLUSION

            The government's motion is granted and the appeal is dismissed with prejudice
    for failure to state a claim upon which relief can be granted.

          Dated: 3 May 201 7




                                                    LYND~Lt/tfo
                                                    Administrative Judge
                                                    Armed Services Board
                                                    of Contract Appeals



     I concur                                        I concur




/    MARK N. STEMPLER                               RICHARD SHACKLEFORD
     Administrative Judge                           Administrative Judge
     Acting Chairman                                Vice Chairman
     Armed Services Board                           Armed Services Board
     of Contract Appeals                            of Contract Appeals

          I certify that the foregoing is a true copy of the Opinion and Decision of the
    Armed Services Board of Contract Appeals in ASBCA No. 60663, Appeal of Parsons
    Government Services, Inc., rendered in conformance with the Board's Charter.



          Dated:



                                                    JEFFREY D. GARDIN
                                                    Recorder, Armed Services
                                                    Board of Contract Appeals




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