Intellicheck, Inc., ASBCA No. 61709

Background

Navy awarded Task Order FD01 to TAG (teaming with Intellicheck as subcontractor) to develop and test a Floating Area Network Littoral Sensor Grid (FAN LSG); the task order stated the LSG was Government property and disposal instructions would follow completion.
Task Order FD01 was completed Sept. 6, 2012; Intellicheck retained physical possession of buoys and related Government property after completion.
From Oct. 2012–Sept. 2013 there were email exchanges among Navy, DCMA, TAG/KEYW and Intellicheck about property management, but the property remained with Intellicheck; an August 2013 invoice submitted under the TAG task order (including Intellicheck’s storage costs) was paid by the Government.
TAG submitted and later settled a certified claim with the Navy (settlement executed Aug. 22, 2014) that included a broad release covering costs related to that claim and subcontractors; Intellicheck continued storing property and contacted the Navy in April 2015 seeking disposal instructions.
Intellicheck released the last property on Dec. 28, 2015, then submitted a certified claim on Sept. 6, 2016 for $129,181.03 for storage, maintenance, and disposal costs, alleging an implied-in-fact contract with the Navy.
The contracting officer denied the claim (COFD: June 25, 2018) on grounds including lack of privity/standing, failure to prove an implied-in-fact contract, and preclusion by the TAG–Navy settlement; Intellicheck appealed to the ASBCA (No. 61709).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an implied‑in‑fact contract existed obligating the Navy to pay Intellicheck for storage/maintenance pending disposal instructions	Intellicheck contends its continued possession and performance (maintenance/storage) plus government inaction/paid invoices constituted an offer and the Navy’s conduct constituted acceptance creating an implied‑in‑fact contract	Navy argues no mutual intent, offer, or acceptance existed between Navy and Intellicheck; any rights arose under the express contract between Navy and TAG, not directly with Intellicheck	No implied‑in‑fact contract; summary judgment for Government
Whether payment of an invoice under the TAG task order or prior communications created actual authority or tacit agreement by the Navy to contract directly with Intellicheck	Intellicheck points to Navy payment of storage costs and communications as evidence Navy knew of and tacitly accepted its ongoing storage obligation	Navy shows payments were made under the express TAG contract (privity with TAG), not as acceptance of a separate contract with Intellicheck	Payments and communications did not establish actual authority or a separate implied contract with Intellicheck
Whether TAG’s settlement with the Navy precluded Intellicheck’s claim	Intellicheck argued the settlement addressed different relief and did not bar its separate implied‑in‑fact contract claim	Navy argued the settlement covered costs of any subcontractors tied to TAG’s claim and therefore precluded Intellicheck’s claim	Board found resolution unnecessary after rejecting implied‑in‑fact contract theory (did not decide scope of settlement)

Key Cases Cited

City of Cincinnati v. United States, 153 F.3d 1375 (Fed. Cir. 1998) (defines implied‑in‑fact contract as inferred from parties’ conduct and surrounding circumstances)
Baltimore & Ohio R.R. Co. v. United States, 261 U.S. 592 (U.S. 1923) (classic statement on implied‑in‑fact contracts and meeting of the minds)
Hanlin v. United States, 316 F.3d 1325 (Fed. Cir. 2003) (elements of implied‑in‑fact contract mirror express contract: mutual intent, consideration, offer/acceptance, and actual authority)
Mingus Constructors, Inc. v. United States, 812 F.2d 1387 (Fed. Cir. 1987) (summary judgment standard and burden on movant to show no genuine issue of material fact)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (definition of material fact and summary judgment principles)