By Government Contracts Editorial Staff
A motion to dismiss a Federal Supply Schedule subcontractor’s claim was denied by the Civilian Board of Contract Appeals because the subcontractor alleged it had privity of contract with the government through its end user licensing agreement. The subcontractor licensed software sold under an FSS contract. It alleged the government breached the EULA when it downloaded more than 5,000 position descriptions from the subcontractor’s job classification database, purchased a less expensive database from a different source, and populated the new database with the downloaded position descriptions. The subcontractor submitted a certified claim for $41.4 million to the purchasing agency contracting officer. Seeking dismissal, the government contended the board lacked jurisdiction because the FSS contractor did not sponsor the subcontractor’s claim.
Gravamen of Claim. The board determined the government’s jurisdictional argument did not address the gravamen of the claim. Although a subcontractor cannot pursue its own claim under the Contract Disputes Act, the subcontractor was not pursuing its claim as a subcontractor. Rather, the subcontractor alleged it was a contractor and had privity of contract with the government through the EULA, which it alleged was incorporated in the FSS contract. The allegations of the existence of a contract were sufficient “to take the claim out of the realm of subcontractor claims and into the world of claims within [the board’s] CDA jurisdiction, provided the other jurisdictional requirements are met.” Noting the appeal might require it to interpret the FSS contract, the board encouraged the parties to consider whether the subcontractor submitted its claim to the proper CO. (Avue Technologies Corp. v. Dept. of Health and Human Services, CBCA, ¶95,809)
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