Excel Link Construction Company
ASBCA No. 60419
| A.S.B.C.A. | Nov 7, 2016Background
- Excel Link Construction Company (appellant) sought registration in the Joint Contingency Contracting System (JCCS) to obtain U.S. installation access in Afghanistan.
- Appellant filed an appeal with the Armed Services Board of Contract Appeals (ASBCA) contesting its designation as "Not Eligible for installation Access." No solicitation, contract, or proposal was identified in the notice of appeal.
- Appellant exchanged emails with Joint Expeditionary Contracting Command–Afghanistan personnel about JCCS registration, but did not submit a written claim to a contracting officer or request money or contract-related relief.
- The government moved to dismiss for lack of jurisdiction, arguing the dispute did not arise under a procurement contract subject to the Contract Disputes Act (CDA) and no contracting officer claim was presented.
- The Board considered whether an express or implied-in-fact contract existed and whether installation-access decisions are reviewable commercial-contract disputes.
- The Board concluded it lacked jurisdiction because no contract (express or implied) was shown and installation-access denials are sovereign/military-command decisions not subject to ASBCA relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ASBCA has jurisdiction under the CDA over denial of JCCS installation access | Excel Link argued denial of JCCS eligibility is reviewable by the Board | Government argued no contract or CDA claim; matter not a contract dispute | Board held no jurisdiction: appellant failed to show a contract or present a CDA claim |
| Whether appellant submitted a valid CDA claim to a contracting officer | Appellant relied on email communications with government personnel as the basis for appeal | Government maintained no written demand seeking money or contract relief was submitted to contracting officer | Board held emails did not constitute a CDA claim under FAR; no claim submitted |
| Whether an implied-in-fact contract exists based on parties' communications | Appellant implied registration/ access created contractual obligations | Government maintained no offer/acceptance or official with authority to bind government appeared | Board held no implied-in-fact contract: communications lacked necessary offer/acceptance and authority |
| Whether installation-access denials are reviewable (or sovereign acts) | Appellant sought Board review of access denial decision | Government argued base-access decisions are sovereign acts and military-command discretion | Board concluded access denials are sovereign/military acts and likely non-justiciable for contract liability |
Key Cases Cited
- City of El Centro v. United States, 922 F.2d 816 (Fed. Cir. 1990) (elements and proof of implied-in-fact contract)
- Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886 (U.S. 1961) (commanding officer’s broad discretion to exclude persons from base)
- Coastal Corp. v. United States, 713 F.2d 728 (Fed. Cir. 1983) (limits on ASBCA jurisdiction for bid-protest-type matters)
- Connor Bros. Constr. Co. v. United States, 550 F.3d 1368 (Fed. Cir. 2008) (denial of installation access treated as sovereign act)
- Zafer Taahhut Insaat ve Ticaret A.S. v. United States, 833 F.3d 1356 (Fed. Cir. 2016) (sovereign-acts doctrine bars liability for public/general acts interfering with contract performance)