25 Cl. Ct. 298 | Ct. Cl. | 1992
MEMORANDUM OPINION
This government contract case is before the court on the motion of defendant to dismiss plaintiffs’ complaint for lack of jurisdiction, or alternatively, a motion for summary judgment. Plaintiffs oppose both motions. After careful consideration of the parties’ submissions, oral argument having been held on January 23, 1992, the court denies defendant’s motion to dismiss but grants defendant’s motion for summary judgment.
Plaintiffs (Veronica Burns Lucas, Don Alvaro Leon, and John Paul Lucas) are a three-member team of licensed architects and landscape architects who are all faculty members at Pennsylvania State University. The team is known collectively as Burns Lucas, Leon, and Lucas Architects (BL3). On June 1, 1989, plaintiffs won a contest sponsored by the American Battle Monuments Commission (ABMC) to design a memorial for Korean War veterans.
The ABMC is a federal commission which is responsible for commemorating, through battle monuments, the services of the American Armed Forces since World War I. 36 U.S.C. §§ 121 et seq. On October 28, 1986, Congress enacted legislation to construct a memorial on the National Mall in Washington, D.C. to honor veterans of the Korean War. Pub.L No. 99-572, 100 Stat. 3226 (1986). The memorial was to be located on a seven and one-half acre tract of the Mall known as Ash Woods, which is near the Lincoln Memorial and across the Reflecting Pool from the Vietnam Veterans Memorial. The legislation also created the Korean War Veterans Memorial Advisory Board (Advisory Board), consisting of twelve distinguished veterans of the Korean War appointed by the President. The Advisory Board’s responsibilities included selecting a site and a design for the memorial, promoting the establishment of the memorial, and raising private funds for its construction and maintenance. This legislation charges the ABMC with the responsibility for establishing the memorial. The legislation also provides that the memorial is to be established in accordance with the National Capital Memorials and Commemorative Works Act, 40 U.S.C. § 1001 et seq. (Supp.1988) (Commemorative Works Act). Under the Commemorative Works Act, the Fine Arts Commission, the National Capital Planning Commission (NCPC), and, on behalf of the Secretary of the Interior, the National Capital Memorial Commission must approve the final design of the Korean War Veterans Memorial. See 40 U.S.C. § 1008(a). In accordance with its statutory authority, the ABMC retained the U.S. Army Corps of Engineers (Corps) to act as its agent in the design and construction of the memorial.
In 1989, the ABMC, the Corps, and the Advisory Board (the agencies) sponsored a single stage national competition for the design of the proposed Korean War Veterans Memorial.
The competition rules provided that the ABMC “shall retain ownership and right to use all prize winning designs for the purpose intended,” and that the ABMC was
In addition, the rules state:
It is anticipated that the winner of the design competition will be retained in a consultant capacity with the [architeetural/engineering] firm selected by the [Corps] to realize the design. The winning Individual Competitor or Competitor Team agrees to enter into good faith negotiations with the [architectural/engineering] firm to develop a mutually acceptable contract for consultant services. In the unlikely event that such negotiations fail to develop a mutually acceptable contract, [the ABMC] shall have the right to designate whomever it may wish to provide such consultant services. Competition Rule 10.1
In the event of a dispute, the rules provide for an administrative dispute resolution procedure: “Any dispute or question of interpretation arising under these Rules shall be considered by the [Corps], the [ABMC], and the [Advisory Board] in consultation with the Professional Adviser, who shall render a decision in writing, which will be distributed to all parties concerned.” Competition Rule 12.2. The rules clearly state that all competitors, by signing their registration forms, “certify that they have read the Design Competition Description and Rules and that they agree to be bound by them.” Competition Rule 2.4.
In accordance with the registration deadline, BL3 submitted an entry in a timely fashion and on May 23, 1989, was notified that its design had won first prize in the competition over a field of 540 entries.
On June 22, 1989, the Corps published an announcement for the services of an architectural/engineering (A/E) firm for design and implementation studies for the memorial. Cooper-Lecky Associates P.C. (CLA)
Thereafter, plaintiffs negotiated with CLA for a consulting contract relative to the design project. On May 15,1990, plaintiffs entered into a contract with CLA, in the amount of $42,500 plus travel and meetings, to furnish consulting services for implementation of the design project. Although not clear from the materials at hand, it would appear that the contract estimated total fees of $54,930. In addition, it was “anticipated” that there would be additional work not currently included in the' contract which would generate further and additional consultant fees for BL3. Under the contract, BL3 agreed not to converse with the press, the Corps, or other consultants relative to the design of the project. BL3 also agreed not to discuss their design with any of the Review Commissions.
Throughout most of 1990, the agencies and CLA continued to refine and develop the design concept. In May of 1990, CLA met with Charles Atherton of the Commission of Fine Arts, who indicated that the Commission had many unresolved concerns regarding the design project. It would appear that the Commissions had differing views regarding the winning design. To meet these concerns, CLA developed four alternative schemes, known as the Bridge, the Overlook, the Delta, and the Valley schemes. In July of 1990, the ABMC selected the Delta scheme as the best approach to solve the concerns of the Review Commissions. CLA further developed the Delta scheme and incorporated it into a development work book for the agencies and Review Commissions. The work book suggested three alternatives, designated as “Delta Scheme,” “Delta Scheme 3.1,” and “Delta Scheme 3.2.” On August 20, 1990, the ABMC selected Delta Scheme 3.2 as the most promising design to meet the commission’s objectives.
On August 27, 1990, BL3 sent CLA a letter rejecting the Delta scheme. They complained that the Delta scheme so altered plaintiffs’ design as to constitute a completely new design. Plaintiffs challenged the right of CLA to work on any design concept except their own. Since they won the design competition, plaintiffs believed that only their design could be the focal point of CLA’s work and any modification must meet their approval. BL3 also complained that CLA excluded them from the design process and requested that CLA return to the task for which they were retained, i.e., developing contract documents for the original design with the aid and consultation of BL3. CLA rejected this request. It would also appear that plaintiffs balked at performing any design consulting work for CLA which they felt detracted significantly from their award winning design. This attitude created friction between CLA and plaintiffs. Throughout the next few months, CLA offered the Delta Scheme to the various agencies for approval. On October 1, 1990, CLA presented the Delta Scheme to the National Park Service (Department of the Interior) without giving BL3 prior notice of the meeting. Later that month, on October 23, 1990, the Advisory Board and the ABMC formally approved CLA’s Delta Scheme. . On November 8, 1990, the National Capital Memorial Commission (NCMC) also approved the Delta Scheme but refused BL3’s request to present the original design with refinements.
On January 16, 1991, BL3 filed the present action for breach of contract against defendant. Plaintiffs allege that the design competition constitutes a unilateral contract which became binding when plaintiffs’ design was selected as the winner. Plaintiffs contend that the competition rules provide two options, once the winning design is chosen. The agencies can either implement the winning design with alterations or modifications, if necessary to obtain approval from the Review Commissions, or abandon the winning design in favor of the second place design. Plaintiffs charge that the agencies have chosen a third option. Rather than electing either choice permitted by the rules, they have substituted a design of their own choosing. In plaintiffs’ view the Advisory Board went beyond its delegated authority and violated plaintiffs’ rights under the contract. As a result of the alleged breach, plaintiffs claim that if their design is not implemented, they will be damaged by loss of “good will, professional prestige and renown.” In addition, plaintiffs claim damage from the “loss of revenue it would otherwise have received as a result of its contract with CLA in providing consulting services for implementation of the winning design. Plaintiffs seek damages in an unspecified sum “in excess of $250,000.”
On December 24, 1990, plaintiffs filed a separate suit in federal District Court for the District of Columbia against the agencies and CLA. After the federal defendants moved to dismiss plaintiffs’ first amended complaint, plaintiffs filed a motion to amend their complaint. Plaintiffs also voluntarily dismissed Count 3 in their first amended complaint, which sought damages against the Advisory Board. On May 20, 1991, the district court granted plaintiffs’ motion to amend their first amended complaint. Plaintiffs’ district court complaint contains three counts. Two counts seek damages against CLA, and one count seeks injunctive relief against all defendants. Jurisdiction for the suit against the federal defendants is based on section 702 of the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq.
In a Memorandum Opinion dated October 24, 1991, the District Court dismissed the suit against the federal defendant agencies. See Lucas, et al v. United, States Army Corps of Engineers, et al, No. 90-3072, 1991 WL 229941 (D.D.C. Oct. 24, 1991). The court understands the District Court ruling is, or will be, the subject of appeal to the Court of Appeal for the District of Columbia Circuit.
DISCUSSION
I
In plaintiffs’ view, the design competition constituted a unilateral contract which was accepted by plaintiffs when they submitted an entry in the competition. Since the court’s jurisdiction extends to “express or implied contracts with the United States,” 28 U.S.C. § 1491, plaintiffs believe they are properly in this court. An' express contract “ ‘must be manifested by words, either oral or written, which contains agreement and/or mutual assent.’” Essen Mall Properties v. United States, 21 Cl.Ct. 430, 439 (1990) (quoting Webster University v. United States, 20 Cl.Ct. 429, 433 (1990)).
The basic elements of contract formation are offer and acceptance. Essen
The process of contract formation in a contest or competition has been described as follows. “The offer of a prize for the performance of a specified act in a contest ... constitutes the first part of the normal offer-acceptance consideration equation for the formation of an enforceable contract. By competing in the contest, a competition accepts the offer; by performing the specified act required for winning the contest, he provides the necessary consideration.” National Amateur Bowlers, Inc. v. Tassos, 715 F.Supp. 323, 325 (D.Kan.1989). Stated in more general terms, “[t]he offer by one party of specified compensation for the performance of a certain act as a proposition to all persons who may accept and comply with its conditions constitutes a promise by the offeror. The performance of that act is the consideration for the promise. The result is an enforceable contract.” 14 Williston on Contracts § 1666 (3d ed. 1972).
In holding that prize money won in a musical competition was taxable as gross income, the Supreme Court stated: “In the legal sense payment of a prize to a winner of a contest is the discharge of a contractual obligation. The acceptance by the contestants of the offer tendered by the sponsor of the contest creates an enforceable contract.” Robertson v. United States, 343 U.S. 711, 713, 72 S.Ct. 994, 996, 96 L.Ed. 1237 (1952) (citing 6A Corbin on Contracts § 1489; Restatement of Contracts § 521 (1932)); accord United States v. Amirikian, 197 F.2d 442, 443 (4th Cir.1952); see also Chenard v. Marcel Motors, 387 A.2d 596, 601 (Me.1978) (promise to give new car to golfer who shot hole in one in golf tournament constituted offer for unilateral contract that was accepted when plaintiff shot hole in one). The materials before the court indicate that a contract was formed between the agencies sponsoring the competition and each of the competitors when the competitors accepted the offer embodied in the design competition by submitting entries. When the agencies chose plaintiffs’ design as the winner of the competition, the agencies were contractually obligated to pay plaintiffs the $20,-000 first place cash prize. Plaintiffs have been paid the $20,000 for their prize winning design entry. Without more, it would appear that this payment of the money to plaintiffs, the winner of the contest or competition, resulted in the discharge of any contractual obligation. See Robertson, 343 U.S. at 713, 72 S.Ct. at 996.
Plaintiffs, however, claim that the contractual obligation of the defendant under the competition rules was not restricted solely to the $20,000 prize money. Under plaintiffs’ reading of the competition rules, defendants were “obligated to use the plaintiffs’ award winning design as the basis for construction of the Korean War Memorial.” Plaintiffs concede that the winning design was subject to approval by various entities, that alterations or modifications to this design might have to be made in order to obtain approval, and that if sufficient alterations or modifications to the design could not be accomplished so as to obtain the necessary approvals, their winning design could be abandoned in favor of the design of the second place finisher in the competition.
Defendant’s motion to dismiss plaintiffs’ complaint is based on the contention that the court lacks jurisdiction to consider plaintiffs’ claim. First, defendant argues that 28 U.S.C. § 1500 prevents the court from exercising jurisdiction in this ease. Second, defendant maintains that the claim at issue is governed by the Contract Disputes Act (CDA). 41 U.S.C. § 601 et seq. Therefore, plaintiffs’ failure to comply with certain requirements of the CDA, i.e., claim presentation and certification, precludes jurisdiction in this court over the claim advanced by plaintiffs.
A. 28 U.S.C. § 1500
Under 28 U.S.C. § 1500, the court’s jurisdiction under the Tucker Act is limited as follows:
The United States Claims Court shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.
Defendant alleges that, under section 1500, the court may not exercise jurisdiction over plaintiffs’ complaint because plaintiffs have a suit, which was filed approximately three weeks before the present suit, presently pending in the Court of Appeals for the District of Columbia.
When a prior suit in district court remains pending, this court must determine whether its jurisdiction to hear the present claim is barred by 28 U.S.C. § 1500. Tecon Engineers, Inc. v. United States, 170 Ct.Cl. 389, 343 F.2d 943 (1965), cert. den., 382 U.S. 976, 86 S.Ct. 545, 15 L.Ed.2d 468 (1966); accord Clark v. United States, 19 Cl.Ct. 220, 222 (1990). In Johns-Manville Corp. v. United States, 855 F.2d 1556 (Fed.Cir.1988), cert. den., 489 U.S. 1066, 109 S.Ct. 1342, 103 L.Ed.2d 811 (1989), the Federal Circuit stated that the term “claim” in section 1500 refers to the assertion of the same operative facts. Johns-Manville Corp., 855 F.2d at 1559-64.
Defendant contends that both the present action and the action pending before the district court share the same operative facts. The court does not agree. For example, plaintiffs’ suit in district court alleges, inter alia, breach of contract against CLA, based on a contract for consulting services for implementation of plaintiffs’ winning design. Plaintiffs’ suit in this court alleges breach of contract against the federal agencies, based on an express contract arising from the design competition. These are two entirely separate contracts with distinct terms and purposes. The materials before the court indicate that, while the two breach of contract claims may be supported by some common operative facts, the material facts supporting each claim are largely dissimilar. Thus, it appears that the two actions do not share the same operative facts.
Moreover, as defendant acknowledges, the Federal Circuit is currently in the process of reconsidering the application of
B. The Contract Disputes Act (CDA)
The parties disagree as to whether plaintiffs’ contract claim, set forth in their complaint, is subject to the CDA. If the claim is subject to the CDA, then the court would be without jurisdiction to hear the claim because plaintiffs did not comply with certain jurisdictional requirements, i.e., submission of a claim for decision by a contracting officer and claim certification. Plaintiffs argue that this type of contract design competition for a prize or award is not subject to the CDA because policy considerations relating to cost and competition are not involved. Defendant, on the other hand, contends that the contract on which plaintiffs premise their claim falls within the purview of the CDA.
The CDA applies to “any express or implied contract ... entered into by an executive agency for ... the procurement of services.”
However, defendant contends that, while the design competition is “not a conventional procurement contract, such a contract still falls squarely within the parameters of the CDA,” because it is clearly “one for the procurement of services,” specifically design concepts for the Korean War Veterans Memorial. The government, by awarding 18 awards in exchange for design concepts, qualifies as a buyer, while the designer is the seller. Contrary to the situation in Pasteur, defendant argues, the government was expending funds for a service. In its reply brief, the government notes that “[ijndeed, it would appear that the unrestricted design competition engendered greater competition than would have existed under the traditional bid solicitation process.” Moreover, defendant argues the procurement regulations provide for this type of procurement process and cites the following sections:
Acquisition of architect-engineer services in accordance with the procedures in this subpart will constitute a competitive procedure.
48 C.F.R. Chap. 1 § 36.601-2.
When the use of design competition is approved by the agency head or a designee, agencies may evaluate firms on the basis of conceptual design of the project. Design competition may be used when—
(1) Unique situations exist involving prestige projects, such as the. design of memorials and structures of unusual national significance;
48 C.F.R. Chap. 1 § 36.602-1 (emphasis added)
Defendant’s argument, however, misses the point. Its contention would certainly be valid if CLA were suing here for procurement of Architect-Engineer Services. However, the contract underscoring the claim at bar is a design competition. No services are called for. The court is of the view that competing in a contest and winning the same may well serve to create a contract, but such a contract does not constitute procurement covered by the CDA.
II
Assuming the court has jurisdiction over plaintiffs’ claim, defendant argues that plaintiffs have failed to exhaust available administrative remedies, and thus they have failed to state a claim on which relief can be granted.
Plaintiffs do not deny that they never resorted to this administrative dispute resolution mechanism before filing suit. However, they claim that they understood Rule 12.2 to apply only to questions arising during the actual competition. It is plaintiffs contention that the Advisory Board’s function to act as a jury and the Professional Advisor’s role overall both ceased to exist after the competition was over. Accordingly, plaintiffs continue, the administrative
The government, on the other hand, argues that this disputes clause also applies to disputes arising after the competition precisely because the drafters did not limit the clause to disputes during the competition. According to defendant, the language is clear. To the extent that the rules apply to post-competition events, so too does the disputes clause. It is clear from the context of the rules that some rules pertain exclusively to circumstances arising after the competition. For example, section nine, entitled “Ownership and Use of Designs,” relates to the competitors’ and the government’s respective rights over the submitted design concepts as those rights exist after the competition. In fact, the very rule that is at the heart of plaintiffs’ complaint concerns post competition events. Plaintiffs claim the agencies were bound by the rules to either implement plaintiffs’ design in the memorial project, or reject it in favor of the second place winner. According to plaintiffs, defendant’s failure to do so has resulted in the alleged damages. See Competition Rule 3.6
In a competition, rules provide the basis for the terms of the parties’ agreement. When parties to a contract have agreed on a method to resolve disputes through specified administrative procedures, courts generally have required adherence to the terms of the agreement. Crown Coat Front Co. v. United States, 386 U.S. 503, 512-13, 87 S.Ct. 1177, 1182-83, 18 L.Ed.2d 256 (1967); United States v. Blair, 321 U.S. 730, 735-37, 64 S.Ct. 820, 88 L.Ed. 1039 (1944); Kihlberg v. United States, 97 U.S. 398, 401-02, 24 L.Ed. 1106 (1878); Schlesinger v. United States, 181 Ct.Cl. 21, 27, 383 F.2d 1004, 1007 (1967) (exhaustion of administrative remedies is sine qua non of court’s contract jurisdiction). Plaintiffs generally must pursue and exhaust the dispute resolution procedures specified in their contract before seeking judicial relief. Crown Coat, 386 U.S. at 512, 87 S.Ct. at 1182; United States v. Anthony Grace & Sons, Inc., 384 U.S. 424, 429, 86 S.Ct. 1539, 1542, 16 L.Ed.2d 662 (1966); Zidell Explorations, Inc. v. United States, 192 Ct.Cl. 331, 334, 427 F.2d 735, 737 (1970). In holding that a contractor’s failure to exhaust the administrative appeal provisions in its contracts barred recovery in the Court of Claims, the Supreme Court, some years back, explained the rationale for this rule:
[A disputes clause] is a clear, unambiguous provision applicable at all times and binding on all parties to the contract. No Court is justified in disregarding its letter or spirit____ It creates a mechanism whereby adjustments may be made and errors corrected on an administrative level, thereby permitting the Government to mitigate or avoid large damage claims that might otherwise be created. United States v. Blair, 321 U.S. 730, 735 [64 S.Ct. 820, 822, 88 L.Ed. 1039] ... And in the absence of some clear evidence that the appeal procedure is inadequate or unavailable, that procedure must be pursued and exhausted before a contractor can be heard to complain in a court.
United States v. Joseph A. Holpuch Co., 328 U.S. 234, 239-40, 66 S.Ct. 1000, 1003, 90 L.Ed. 1192 (1946). Thus, plaintiffs must follow the dispute resolution procedure specified in the competition rules, unless the disputes procedure is unclear or ambiguous.
The disputes procedure outlined in the competition rules is not viewed as clear and unambiguous. To be sure, the “disputes” provision is not the standard clause to be found in federal procurement contracts and governing federal procurement regulations. It does not put the resolution process in the hands of one agency acting through one contracting officer but places resolution in the hands of three entities who are to consult with the “Professional Advisor.” As drafted, there exists uncertainty as to whom the plaintiffs should address a dispute of the kind asserted in their complaint.
Ill
Defendant has moved for summary judgment. For purposes of this motion defendant has conceded that plaintiffs have a contract on which relief could be granted but argues the relief sought by plaintiffs cannot be granted by the court.
Plaintiffs, in their complaint, claim they “will be damaged if its [their] design is not
Plaintiffs’ claim of damages for loss of goodwill, professional prestige, and renown sets forth, essentially, a claim for damages for defamation. Plaintiffs’ “loss of revenue” claim, i.e., revenue it would have received on another contract is essentially a claim for tortious interference by defendant agencies with plaintiffs’ contract with CLA.
Jurisdiction in this court is limited to claims “not sounding in tort.” 28 U.S.C. § 1491(a)(1). Loss of business reputation is not a compensable damage claim in the Claims Court because it sounds in tort and is speculative. Essen Mall, 21 Cl.Ct. at 447. Such tort claims are beyond the court’s jurisdiction. See Frawley v. United States, 14 Cl.Ct. 766, 767 (1988) (claim for damage to reputation sounds in tort over which court lacks jurisdiction); Pinkston v. United States, 6 Cl.Ct. 263, 267 (1984); Berdick v. United States, 222 Ct.Cl. 94, 100, 612 F.2d 533, 536 (1979) (claims for damages for defamation, intentional infliction of emotional distress, tortious interference with business relationships, and conspiracy sound in tort and are not within court’s jurisdiction); Somali Development Bank v. United States, 205 Ct.Cl. 741, 749, 508 F.2d 817, 821 (1974).
To the extent that plaintiffs’ allegations of loss of business reputation and loss of business revenue do not sound in tort, these allegations seek consequential damages for breach of contract that are not recoverable because they are unforeseeable, remote, and speculative. The court may award only actual damages for breach of contract and only for the natural and probable consequences of the breach asserted. Ramsey v. United States, 121 Ct.Cl. 426, 433, 101 F.Supp. 353 (1951), cert. den., 343 U.S. 977, 72 S.Ct. 1072, 96 L.Ed. 1369 (1952). Damages for harm to business reputation and loss of future profits are not recoverable because they are too remote, consequential, and speculative. Essen Mall, 21 Cl.Ct. at 447; Rhen v. United States, 17 Cl.Ct. 140, 143-44 (1989); William Green Constr. Co. v. United States, 201 Ct.Cl. 616, 626-27, 477 F.2d 930, 936-37 (1973), cert. den., 417 U.S. 909, 94 S.Ct. 2606, 41 L.Ed.2d 213 (1974). Remote, unforeseeable, and consequential damages are not recoverable. Mendenhall v. United States, 20 Cl.Ct. 78, 85 (1990); Begay v. United States, 16 Cl.Ct. 107, 134 (1987); Northern Helex Co. v. United States, 207 Ct.Cl. 862, 886-87, 524 F.2d 707, 720 (1975), cert. den., 429 U.S. 866, 97 S.Ct. 176, 50 L.Ed.2d 146 (1976).
The only damages that are recoverable for breach of contract are those that are foreseeable at the time of the making of the contract, not at the time of the breach. Globe Refining Co. v. Landa Cotton Oil Co., 190 U.S. 540, 545-47, 23 S.Ct. 754, 756-57, 47 L.Ed. 1171 (1903); Restatement of Contracts §§ 330, 331; 11 Williston on Contracts §§ 1356, 1357 (3d ed. 1967). Contrary to plaintiffs’ assertion, plaintiffs’ estimated damages of $37,995, resulting from the unpaid balance of plaintiffs’ contract with CLA, are not recoverable. When the parties entered into the unilateral contract, based on the competition, the loss of revenue on the CLA contract was not foreseeable damage. At that time, neither the government nor CLA were under an obligation to enter into a contract with plaintiffs. “For a damage to be direct there must appear no intervening incident ... [and] the cause must produce the effect inevitably and naturally, not pos
Moreover, it is important to bear in mind that plaintiffs’ contract with CLA was independent of the Competition Rules contract. The Competition Rules alluded to the anticipation of the winner of the design competition being awarded a consulting contract but stressed that whether the winner received such a contract depended on whether the winner could negotiate such a contract with the A/E (architect/engineer) selected by the agencies to develop and realize a design acceptable to the designated Commissions. It must be remembered that the competition here at issue was not required by statute and no statute nor contract provision required defendant agencies to select or work with only a design based on competition results. Indeed, the competition process seems to be a reasonable method of selecting a design by choosing a preliminary design from a contest and thereafter working from that to develop a final design.
Plaintiffs do not, in their brief, persuade the court that the precedential value of the above cited cases is zero because the case at bar does not fall into the pattern of the cited cases which involve standard commercial settings. According to plaintiffs, there is no relationship between the $20,000 price paid and the product received. Plaintiffs aver that they spent much more than $20,-000 in working out their design. Plaintiffs contend they did not enter into the competition for the money but rather for the hon- or, prestige and recognition that goes with winning a competition “to have one’s design built on the National Mall.” (Plaintiffs’ brief p. 22). They entered the competition, plaintiffs allege, for “the financial remuneration such honor and prestige brings to the winners.” The above cited cases demonstrate clearly that damages based on these incentives are not recoverable.
IV
One final word deserves mention at this time. There is uncertainty in the court’s mind whether a final design has been approved by all the designated Commissions. The papers accompanying the submissions of the parties suggest that the Commissions disapproved the Delta design scheme. However, at oral argument there was an indication that the Commissions have approved a final design. This matter is up in the air as far as the court is concerned. If there has been no final approval of the design then plaintiffs’ suit may well be premature. If plaintiffs’ design is still under consideration then obviously plaintiffs’ claim has not yet matured. Plaintiffs do not dispute the fact that a final and realized design must be approved by designated Commissions. Until such approval is forthcoming and final, there would be no basis on which to proceed and consider plaintiffs’ claim. “Where ‘action with reference to the contract to be executed be
V
On the basis of the above discussion, defendant’s motion to dismiss plaintiffs’ complaint for lack of jurisdiction and for failure to exhaust available administrative remedies is denied. Defendant’s motion to dismiss the complaint for failure to state a claim on which relief can be awarded is granted. Accordingly, the clerk is directed to dismiss the complaint. No costs.
. The Korean War began on June 25, 1950, and ended on July 27, 1953.
. The ABMC, the Corps, and the Advisory Board are referred to as “agencies" throughout this opinion. However, it is unclear whether these entities as a group are "executive agencies” for statutory purposes. See infra note 5.
. Plaintiffs’ complaint, paragraph 13, alleges that 540 competitors entered the competition. Defendant admits this in its answer,
. Section 1007 of the National Capital Memorials and Commemorative Works Act (Commemorative Works Act), 40 U.S.C. § 1001 et seq., requires that the ABMC consult with the NCMC concerning the site of the memorial and the work to be done. Section 1008 requires the approval of the Commission of Fine Arts and the National Capital Planning Commission before a construction permit can be issued.
. Section 702 provides, in pertinent part: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action wjthin the meaning of a relevant statute is entitled to judicial review thereof.”
. There is uncertainty in the materials before the court whether the design of the Korean War Memorial has been officially approved by all the appropriate entities sufficient to enable the Corps of Engineers to commence building the project. It may well be that plaintiffs’ claim herein may be premature. Further, it is not known whether, or if, consideration has been, or will be, given to adoption of the design of the second place design winner.
. The federal defendants involved in this litigation are the ABMC, the Army Corps of Engineers, and the Advisory Board. Neither party addresses the question of whether these entities are "executive agencies” within the meaning of the CDA. The notes accompanying section 601 of the CDA state that the term "executive agency” includes the executive departments, independent establishments, military departments, the U.S. Postal Service, and wholly-owned government corporations. 41 U.S.C.A. § 601 historical and statutory notes (1987).
Under section 102 of Title 5, the Department of the Army is a "military department.” Thus, it appears that the Army Corps of Engineers is within the definition of "executive agency.” Section 104 of Title 5 defines “independent establishment” to mean an establishment in the executive branch which is not an executive department, a military department, or a government corporation. Thus, it appears that the ABMC and the Advisory Board may be "independent establishments" and therefore "executive agencies” within the meaning of the CDA.
. In its brief, defendant frames his argument that plaintiffs’ claims should be dismissed for failure to pursue and exhaust the dispute resolution procedures as a jurisdictional argument. At oral argument, government’s counsel agreed with the court that this was not a jurisdictional argument but rather an argument for failure to state a claim on which relief can be granted. See Omni Moving & Storage of Virginia, Inc. v. United States, 21 Cl.Ct. 224, 230 (1990).
. Plaintiffs contend that the defendant agencies, i.e., the ABMC, the Corps, and the Advisory Board breached the competition rules. The design competition rules, plaintiffs argue, constitute a contract between plaintiffs and the agencies. Plaintiffs aver that as winner of the competition, defendant agencies "were obligated to use their [plaintiffs’] design as a basis for construction of the Korean War Veterans Memorial” (Complaint, par. 39). Plaintiffs further aver that the contract provides that if their design could not be altered or modified so as to receive approval by the designated Commissions, then their design could be abandoned and the design of the second place winner in the competition would be considered. The breach of contract occurred when defendant agencies abandoned plaintiffs’ design in favor of a design of the agencies' own choosing, which was not entered in the competition.
. Plaintiffs claim, and rightly so, that there is a dispute of fact as to whether the alterations or modifications were so significant as to constitute an abandonment of plaintiffs’ design. However, as a preliminary matter, the question of whether plaintiffs had any right in their design after the competition was over, even as the winner of the competition, seems to rest on an interpretation of the contract, which, as is recognized, is a question of law, not a question of fact. See in this regard Competition Rule 9, which includes, in part, "the Commission shall retain ownership and right to use all prize winning designs for the purpose intended.” Under these rules, it would appear that plaintiffs, as winner of the competition, only have "an opportunity to review and comment on the development and realization of the design.” See Competition Rule 10.4.
. In Par. 43 of its complaint, plaintiffs allege that they “will be forever associated with the sham and fraud of a misleading competition which was simply used as an artifice and a device to implement the design views of a minority."
. After winning the competition, plaintiffs negotiated with CLA for a consultant contract relative to realization of a design that would receive the approval of the designated Commissions. Plaintiffs allege this independent contract provided that plaintiffs would be paid some $42,-000, which figure, plaintiffs advise, was later revised upward to $54,930. Plaintiffs allege that after performing services worth $16,935, which amount plaintiffs concede was paid to them by CLA, CLA directed BL3 to suspend work on plaintiffs’ design. Defendant’s agents, the ABMC, the Corps, and the Advisory Board insisted that a new design scheme was necessary in order to obtain approval from the designated Commissions. Thereafter, plaintiffs ostensibly refused to perform any consulting services on the new design, their design having been abandoned. Since they performed no service thereafter, CLA did not pay them the remaining $37,-995 ($54,930 — $16,935). Plaintiffs seek to recover this "lost revenue” of $37,995. Plaintiffs have sued CLA in the District Court suit, presumably this $37,995 may well be a damage item in that suit. Whether 28 U.S.C. § 1500 is applicable in this regard is an open question at this time. See Part I A, supra. Since plaintiffs seek to recover an amount in excess of $250,000 for both damage claims, the amount of the defamation claim presumably is in excess of $212,000.
