Terry v. United States, 98 Fed. Cl. 736

Court previously held lack of jurisdiction over count I under 28 U.S.C. § 1491(b)(1) but jurisdiction under § 1491(a) based on an implied-in-fact contract for fair consideration.
Court granted defendant’s motion to dismiss count II on CDA exhaustion grounds.
Defendant filed a precedent notice admitting the motion rested on an erroneous assumption about CDA applicability to AAFES concession contracts.
Concession contracts are not within the four categories covered by the CDA and are not service or procurement contracts under CDA.
Plaintiff allegedly operated a concession kiosk at Fort Benning; count II alleges breach and related misconduct by AAFES.
Court vacated Part IV.1 of the prior decision and reaffirmed lack of jurisdiction over discrimination allegations.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does CDA apply to AAFES concession contracts?	AAFES contracts fall outside CDA categories.	Concession contracts may be CDA contracts.	CDA does not apply to concession contracts.
Is count II subject to CDA procedures or exhausted claim requirement?	No administrative procedures required.	CDA procedures may apply to count II.	Count II not subject to CDA; no exhaustion required.
Does exhaustion doctrine affect jurisdiction over count II?	Exhaustion not needed for CDA-excluded claims.	Exhaustion required for CDA-covered disputes.	Not applicable since CDA does not govern count II.
Does the court retain jurisdiction over discrimination allegations?	Discrimination claims fall within jurisdiction.	Discrimination claims beyond jurisdiction.	Court lacks jurisdiction over discrimination claims.

Terry v. United States, 96 Fed.Cl. 131 (Fed. Cl. 2010) (addressing CDA jurisdiction and exhaustion issues)
Frazier v. United States, 67 Fed.Cl. 56 (Fed. Cl. 2005) (administrative claim exhaustion not required in certain contexts)