Safeco Insurance Company of America, ASBCA No. 60952

Task Order under Contract W912HN-08-D-0042 was awarded to I.L. Fleming; Safeco issued payment and performance bonds as surety.
Fleming, subcontractors, and U.S. Bank executed an Escrow Agreement (Feb 17, 2011); Fleming agreed to direct the Corps to deposit contract payments into the escrow account (CAGE 6CN69).
Safeco repeatedly notified the Corps (June–July 2011) that payments should be made to the escrow account and requested the Corps not release funds to Fleming.
The contracting officer issued a unilateral modification (22 July 2011) updating Fleming’s CAGE code to the escrow account CAGE. The Corps made multiple payments to the escrow account from Aug 2011 through Aug 2014.
After an August 2014 return for invalid/expired account info, the Corps ultimately paid $56,073.84 to Fleming’s bank account in Sept 2014. Safeco filed a certified claim (Aug 2016) seeking recovery of that payment; the CO denied the claim and Safeco appealed to the ASBCA.
The Corps moved to dismiss for lack of jurisdiction, arguing Safeco had no contract with the government and thus no CDA jurisdiction; the Board granted the motion and dismissed the appeal without prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the Board have jurisdiction over Safeco’s equitable subrogation claim?	Safeco: Board has jurisdiction to enforce equitable subrogation against the government based on escrow, COFD, payments, and related facts.	COE: Equitable subrogation is not within ASBCA jurisdiction because CDA jurisdiction requires a contract between appellant and the U.S.	No — ASBCA lacks jurisdiction over equitable subrogation claims absent a contract with the government.
If recharacterized, does Safeco sufficiently allege an implied-in-fact contract with the government to invoke CDA jurisdiction?	Safeco: Conduct (modification updating CAGE, payments into escrow, subcontractor reliance) supports a plausible implied-in-fact contract.	COE: No mutual intent, no offer/acceptance, no consideration, COE not party to escrow, unilateral modification insufficient; facts do not non-frivolously allege a contract.	No — Safeco failed to make non-frivolous allegations of an implied-in-fact contract; appeal dismissed for lack of jurisdiction.

United Pacific Ins. Co. v. United States, 380 F.3d 1352 (Fed. Cir.) (ASBCA lacks jurisdiction over surety’s equitable subrogation absent contract)
Fireman’s Fund Ins. Co. v. United States, 909 F.2d 495 (Fed. Cir.) (requirement of bonds does not make surety a contractor with the United States)
Insurance Co. of the West v. United States, 243 F.3d 1367 (Fed. Cir.) (discussing Tucker Act jurisdictional grant to CFC — not applicable to ASBCA)
Hanlin v. United States, 316 F.3d 1325 (Fed. Cir.) (elements required to establish implied-in-fact contract)
City of El Centro v. United States, 922 F.2d 816 (Fed. Cir.) (mutuality, consideration, unambiguous offer and acceptance, and contracting authority required for implied-in-fact contract)
Scott Timber Co. v. United States, 333 F.3d 1358 (Fed. Cir.) (claim to contracting officer must plead operative facts supporting implied-in-fact contract for CDA jurisdiction)