New Hampshire Flight Procurement, LLC v. United States

In the United States Court of Federal Claims
No. 13-567C
Filed: August 29, 2014
* * * * * * * * * * * * * * * * * * *
NEW HAMPSHIRE FLIGHT *
PROCUREMENT, LLC *
*
Plaintiff, * Motion to Dismiss; Third-Party
* Beneficiary; Privity of Contract.
v. *
*
UNITED STATES, *
*
Defendant. *
*
* * * * * * * * * * * * * * * * * *
Scott L. Levitt, Law Offices of Levitt Law, APC, Seal Beach, CA, for plaintiff.
Gregg P. Yates, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him were
Donald E. Kinner, Assistant Director, Commercial Litigation Branch, Robert E.
Kirschman, Jr., Director, Commercial Litigation Branch, Civil Division, and Stuart F.
Delery, Assistant Attorney General.
OPINION
HORN, J.
Plaintiff, New Hampshire Flight Procurement, LLC (New Hampshire) brings this
action against the United States related to the National Aeronautics and Space
Administration’s (NASA’s) alleged failure to pay plaintiff for the use of, and damage to,
plaintiff’s Gulfstream II airplane. Plaintiff, New Hampshire, alleges that as a
subcontractor, it leased a Gulfstream airplane to Flight Test Associates, the prime
contractor, which then used the airplane in a government contract between Flight Test
Associates and NASA for “High Ice Water Content testing,” contract NNC11BA04B (the
prime contract). Plaintiff states that the prime contract between Flight Test Associates
and NASA “was for the use of a jet aircraft (a Gulfstream II), to be fitted with
government owned testing equipment and to be flown with such installed equipment in
areas of high ice accumulation.” Plaintiff claims it has an express and implied-in-fact
contract with the government, and is “a third party intended beneficiary to the” prime
contract between the government and Flight Test Associates. Plaintiff claims, therefore,
that defendant (1) breached an express contract with plaintiff,1 (2) breached an implied
contract with plaintiff, (3) breached the covenant of good faith and fair dealing in
contracts, and (4) is liable to plaintiff under a theory of quantum valebant. Plaintiff seeks
as relief, “[l]ease Payments from September 1, 2012 through May 31, 2013,” totaling
$355,500.00, “[l]ease allocated 235 hours of flight time at $2,200 per hour,”
“[r]estoration of Gulfstream II,” as well as interest, attorney’s fees, and costs of the suit. 2
Defendant filed a motion to dismiss for lack of subject matter jurisdiction and for
failure to state a claim upon which relief might be granted, pursuant to Rule 12(b)(1) and
Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (RCFC) (2014).
Defendant contends that this court lacks subject matter jurisdiction to hear plaintiff’s first
and second claims for relief, because plaintiff is not in contract privity with the
government, either through an express or implied-in-fact contract. Defendant also
argues that plaintiff is not an intended third-party beneficiary to the prime contract
between the government and Flight Test Associates. Defendant contends that plaintiff’s
third claim for relief, for a breach of the implied covenant of good faith and fair dealing,
fails to state a claim upon which relief can be granted, because, without a contract
between the government and plaintiff, there cannot be a breach of this covenant.
Finally, defendant contends that plaintiff’s fourth claim for relief, under a theory of
quantum valebant recovery, is an implied-in-law contract claim outside of this court’s
jurisdiction under the Tucker Act, 28 U.S.C. § 1491 (2012).
FINDINGS OF FACT
According to plaintiff, on December 20, 2010, NASA entered into a contract,
NNC11BA04B, with Flight Test Associates for “High Ice Water Content testing.”
Plaintiff’s complaint attaches a portion of the prime contract between Flight Test
Associates and NASA, which was signed on behalf of NASA by contracting officer
1
Plaintiff confuses its breach of express contract claim with its claim for relief as a third
party beneficiary to the prime contract. As discussed below, these are not the same
legal theories.
2
Another subcontractor to the same prime contract between Flight Test Associates and
NASA, contract NNC11BA04B, named Threshold Technologies Inc. (Threshold), also
brought a suit in this court, alleging that NASA failed to compensate Threshold for
“operations, maintenance, and installation/disintegration services,” for the Gulfstream jet
provided by plaintiff, New Hampshire. See Threshold Techs., Inc. v. United States, No.
13-599C (Fed. Cl. filed Aug. 21, 2013). In Threshold’s complaint, Threshold explains
that although it brings suit under the name Threshold Technologies, Inc., Threshold is
“also referred to as Threshold Aviation Group,” and there is no difference between the
entities. See id. at 1. The lawsuit in the Threshold case was filed by the same attorney
and the briefs filed in both cases closely resemble each other, with factual differences
discussed; but arguments and case citations closely parallel each other. In the
Threshold case, defendant filed a partial motion to dismiss for lack of subject matter
jurisdiction and for failure to state a claim upon which relief may be granted.
2
Timothy M. Bober and the president of Flight Test Associates, John Ligon. According to
the prime contract’s first page, the prime contract was awarded by NASA to Flight Test
Associates on December 20, 2010.3
Defendant attaches to its motion to dismiss the prime contract’s statement of
work. The statement of work does not reference the prime contractor Flight Test
Associates or the subcontractor New Hampshire. According to the introduction to the
statement of work:
Over the past 10 years, there have been a significant number of jet engine
power-loss events (flameout, stall, rollback and surge) occurring in and
around areas of deep tropical convection at higher altitudes (mostly above
20,000 ft).
...
The intent of this contract is for a Contractor to provide an aircraft modified
with Government furnished instrumentation to conduct High Ice Water
Content (HIWC) flight research during a trial flight campaign and primary
flight campaign(s) based out of Darwin Australia during the monsoon
season between January - March. This Statement of Work (SOW) sets
forth the requirements to conduct HIWC research through an Aircraft
Services Contract. The research to be conducted by the Government will
require close coordination between Government and Contractor personnel
during all phases of this contract.
According to the scope of the statement of work for the prime contract between Flight
Test Associates and NASA, “[t]he Contractor shall provide all personnel (including
pilots), equipment, tools, etc., except as provided in Section 4.1 or as otherwise noted,
necessary to conduct the HIWC [High Ice Water Content] research flights required to
meet NASA's testing requirements.” The statement of work also explains that:
The Contractor shall provide . . . Aircraft Preparation . . . an aircraft as
specified in Section 4.3 and integrate all instrumentation as specified in
Section 4.1 of this document on the aircraft while coordinating the
instrument locations, mounting design concepts and fabrication, and
instrument installation with NASA and partner researchers and aviation
safety personnel.
3
The parties have not provided the entire prime contract between Flight Test
Associates and NASA to the court. Rather, plaintiff, New Hampshire, provided in its
complaint Parts I through III of the prime contract NNC11BA04B, the contract
“SCHEDULE,” “CONTRACT CLAUSES,” and “LIST OF DOCUMENTS, EXHIBITS AND
OTHER ATTACH.” (capitalization in original). Defendant also provided, as part of its
motion to dismiss, “Attachment A” to the prime contract, titled “Statement of Work
(Change A) for Aircraft Services to Conduct High Ice Water Content Flight Research.”
3
(emphasis in original). The statement of work indicates that the prime contractor, Flight
Test Associates, was to be further responsible for: “Trial Flight Campaign,” “Primary
Flight Campaign(s),” and “Aircraft final de-integration and return of Government
Furnished Properly (GFP) and partner hardware.” (emphasis in original). Section 4.2
of the statement of work discusses where the plane would be based: “Both flight
campaigns includes [sic] the round trip ferry flight to and from the airport base of
operation for the trial campaign. The point of origin for the ferry flights is the aircraft's
home base of operation designated by the Contractor.”
The prime contract between Flight Test Associates and NASA states under
“SCOPE OF CONTRACT,” that, “[t]he contractor shall, except as otherwise specified
herein, furnish all personnel, facilities, materials and services required to perform the
work outlined in Section C hereof.” (capitalization and emphasis in original). The prime
contract was to be a firm fixed price contract for $9,962,787.00. The prime contract
between Flight Test Associates and NASA states that payments to the contractor were
to be milestone-based, with separate payments after plaintiff completed “Aircraft
Preparation,” “Trial Flight Campaign,” “Primary Flight Campaign,” “Aircraft De-
integration and Return of GFP [government-furnished property],” with an “Option for an
Additional Flight Campaign.” The prime contract further states that, “[o]nly the
Contracting Officer may issue task orders to the Contractor,” and that “[n]o other costs
are authorized unless otherwise specified in the contract or expressly authorized by the
Contracting Officer.”
The prime contract between Flight Test Associates and NASA put the risk of
delay or issues with the aircraft on the prime contractor, Flight Test Associates:
In accordance with Section 8.5 of the Statement of Work, the following
performance standards will exist for calculating payments for aircraft
usage under task orders:
(a) Should the aircraft preparation schedule get delayed due to
Contractor issues and prevent NASA from conducting the flight
campaigns as stated in this SOW, the Government will not incur
any costs for occupying the aircraft from the start of the originally
proposed flight campaign to the start of the actual flight campaign.
(b) When a flight is not possible during a given day due to failure of
the Contractor's equipment or documentation to pass NASA safety
requirements, the aircraft occupancy payment may be reduced by
10% for each day lost for that week.
(c) NASA will not pay for flights benefiting the Contractor, such as
flights for maintenance testing, for ferrying to and from maintenance
facilities, flights required following an engine change, commercial
charters, and flights solely for transporting Contractor's personnel.
4
The prime contract between Flight Test Associates and NASA also incorporates by
reference Federal Acquisitions Regulations “52.233-4 APPLICABLE LAW FOR
BREACH OF CONTRACT CLAIM (OCT 2004),” “52.242-13 BANKRUPTCY (JUL
1995),” as well as “52.249-8 DEFAULT (FIXED PRICE SUPPLY AND SERVICE) (APR
1984).” (capitalization and emphasis in original).
Plaintiff alleges that, “FTA [Flight Test Associates] does not, nor has it ever
owned a Gulfstream II aircraft, or any other aircraft that could be used under the
Contract.” Plaintiff further alleges that “[d]efendant had complete knowledge of the fact
that FTA, the ‘Contractor’ under the Contract did not own such aircraft.” Plaintiff
contends that Section H.13 of the prime contract between Flight Test Associates and
NASA makes clear that the prime contractor, Flight Test Associates, would have to rely
on a subcontractor to provide the aircraft. According to Section H.13 of the prime
contract between Flight Test Associates and NASA:
H.13 MONITORING OF SUBCONTRACTOR
The parties agree that this contract was negotiated on the basis that the
Contractor's proposed operations subcontractor, Threshold Aviation
Group,[4] will provide the aircraft under lease to the prime contractor and
will be performing contract requirements related to the airworthiness of the
aircraft, aircraft operations, and aircraft maintenance. The parties agree
that the proposed subcontractor's performance is critical to the success of
the contract. Therefore, the Contracting Officer's written approval is
required for any substitution of another operations subcontractor.
Additionally, the Contractor shall ensure that the subcontractor's
operations conform to all contract requirements, including, without
limitation, the requirement that performance conform to the requirements
of NPR 7900.3, Aircraft Operations Management, as set forth in sections
6-8 of the Statement of Work (SOW) and the requirements pertinent to the
authority and responsibility of the NASA Test Director as set forth in
section 8.10.9 of the SOW.
The Contractor shall ensure that there are clear lines of communications,
including, when necessary, direct communications, between the
Government and the operations subcontractor to ensure airworthiness,
and safe and successful operations and maintenance of the aircraft.
Nothing herein relieves the Contractor from responsibility for performing
this contract.
4
New Hampshire, not Threshold, was the entity that contracted with Flight Test
Associates to supply the aircraft, through a separate aircraft least agreement.
Defendant agrees that Threshold only provided “operations, maintenance, and
installation services.”
5
(emphasis and capitalization in original). Plaintiff explains that, “[d]espite the Contract's
language, the aircraft was not supplied by Threshold Aviation Group, the aircraft, a
Gulfstream II (N81RR), was supplied directly by Plaintiff [New Hampshire] to FTA [Flight
Test Associates] via a lease dated January 6, 2011.” Plaintiff further explains that
Threshold “did not, nor has it ever owned or asserted that it has owned the Gulfstream II
aircraft (the ‘Aircraft’), instead Threshold merely supplied operations, maintenance, and
installation/disintegration services.” Defendant admits that “[t]he prime contract
incorrectly identifies Threshold as the provider of the aircraft.”
Attached to its complaint, plaintiff provides a subcontract between plaintiff and
the prime contractor, Flight Test Associates, titled an “Aircraft Lease Agreement”
between New Hampshire and Flight Test Associates, signed January 10, 2011. The
aircraft lease agreement between New Hampshire and Flight Test Associates states:
This Aircraft Lease Agreement (this “Lease”) is made and entered into as
of the 6th day of January, 2011, by and between New Hampshire Flight
Procurement, LLC, a New Hampshire Limited Liability Company, having
its principal office at 25 New Orchard Road Pittsfield, NH 03263
(hereinafter referred to as “Lessor”), and Flight Test Associates, Inc., a
Delaware Corporation, having its principal office at 1031 Mobley, Hangar
100, Mojave, California, 93501 (hereinafter referred to as “Lessee”). . . . It
is understood that the use of the Aircraft will primarily be in support of
Lessees [sic] contract with NASA, to evaluate High Ice Water Conditions
(“HIWC”).
The lease between New Hampshire and Flight Test Associates was for a “Gulfstream
G-1159” airplane. The aircraft lease agreement further states that, “Lessor [plaintiff]
shall enter into a service and maintainance [sic] agreement with” Threshold, and that
“Lessee shall enter into an operational and flight management agreement with
Threshold.”
The aircraft lease agreement between New Hampshire and Flight Test
Associates, provided by plaintiff, states that the airplane’s base of operation was
Mojave, California, the location of the principal office of Flight Test Associates, except
for when the aircraft was undergoing maintenance or in use by NASA. According to the
aircraft lease agreement, for the term of the lease, Flight Test Associates was to pay
New Hampshire “lease payments of $35,000.00 due on the 5th day of the month
commencing on February 5, 2011 and continuing for the term of the Lease,” as well as
either $4,500.00 per month when the plane is “on the Ground,” or $9,500.00 per month
“[w]hen Aircraft is on Flight Status.” In addition, Flight Test Associates was also to pay
plaintiff $2,200.00 per flight hour for aircraft and engine maintenance. Flight Test
Associates also agreed, under the lease agreement with New Hampshire, to
bear all operating costs, crew salaries, benefits, fuel and fuel additives,
landing and Customs fees, hangar, ramp and storage charges, any fines
6
or penalties arising from the operation or use of the Aircraft by Lessee
[Flight Test Associates]. Lessor [New Hampshire] shall not be obligated to
pay any taxes levied directly related to the use of the Aircraft by Lessee.
The aircraft lease agreement between the lessor, New Hampshire and the
lessee, Flight Test Associates contains numerous provisions to address contingencies
in case the underlying contract with NASA was terminated. According to the aircraft
lease agreement, “[i]n the event that NASA terminates the HIWC contract, Lessee shall
be allowed to cancel this Lease Agreement” upon proper notification. In such case,
“[t]he lease term shall include the period during which the Aircraft will be returned to its
original configuration in accordance with ARTICLE III; and, all lease payments owing
are paid until the date on which the Aircraft is returned and all work is completed for
returing [sic] to original configuration.” In addition, according to the aircraft lease
agreement between New Hampshire and Flight Test Associates, “[s]hould NASA
terminate it's contract with Lessee, Lessee shall return the Aircraft to Chino, CA, and
continue to pay the agreed upon monthly Lease rate until the Aircraft is restored to its
orginal [sic] state.” Default by Flight Test Associates under the airplane lease
agreement with New Hampshire included failure to make payments, failure to observe
the covenants of the agreement, false representation, failure to do business as a going
concern, a filing of bankruptcy, and a court judgment in bankruptcy against Flight Test
Associates. Under the lease agreement between New Hampshire and Flight Test
Associates, in the event of such default by Flight Test Associates, plaintiff had the right
to, “[d]eclare the entire amount of rent accrued hereunder immediately due and payable
and accelerate the terms of this Lease,” and “[c]ause Lessee, at Lessee's expense, to
return the Aircraft to Lessor at a point in the United States designated by Lessor.” The
aircraft lease agreement between New Hampshire and Flight Test Associates made
clear under its “Miscellaneous” terms that, “[n]o governmental approval is required for
Lessor or Lessee to enter into this Lease.” (emphasis in original).
According to plaintiff’s complaint, “[w]ithin the first few months” after the start of
the prime contract between the government and Flight Test Associates, “FTA began to
breach the Contract, and had stopped paying both Threshold and Plaintiff [New
Hampshire] monies owed to each, respectively.” Plaintiff alleges that “[o]n June 14,
2012, Mark DiLullo, CEO of Threshold, sent Ron Colantonio and Peter Struk, both of
NASA, a letter detailing the lack of payment by FTA:”
A meeting was held on Tuesday, June 12, 2012 at FTA's office . . . At the
meeting FTA [Flight Test Associates] advised TTI [Threshold] that it was
unable to pay TTI for any of the current or past due amounts and that FTA
was unwilling to discuss or establish a payment schedule for the invoices
that are currently due and payable. Further, FTA was unwilling to provide
any assurances as to when TTI would be paid, if at all . . . TTI is also
aware of the fact that certain lease payments pursuant to the Aircraft
Lease Agreement between FTA, as Lessee and New Hampshire Flight
Procurement, LLC (“Lessor”) are past due and FTA is in breach of this
agreement as well.
7
(omissions and emphasis in original). Plaintiff further alleges, “[d]espite this June 14,
2012 letter, NASA continued to make payments to FTA, even though they had actual
knowledge that Threshold and Plaintiff [New Hampshire] had not received payments
due.” Plaintiff states that on August 29, 2012, Mr. John Ligon, “president and owner of
FTA,” passed away, and that, “FTA, without its owner, essentially ceased to function
and continued to default with regard to its obligations under the Contract, and in its
failure to pay Plaintiff [New Hampshire] and THRESHOLD.” (capitalization in original).
On September 21, 2012, as provided by defendant in its motion to dismiss, NASA sent
a cure notice e-mail to Flight Test Associates, stating that: “You [Flight Test Associates]
are hereby notified that the Government considers FTA's current financial condition and
failure to remain current on its financial obligations to be conditions that are
endangering performance of the contract.” On October 9, 2012, NASA sent Flight Test
Associates another e-mail, stating in relevant part:
FTA notified NASA on September 25, 2012 that the personnel working on
the HIWC project were furloughed, and all ongoing work on aircraft
modifications was stopped. On September 28th, NASA leased hangar
space for the G-II [Gulfstream II] at ASB Avionics and requested that FTA
coordinate the movement of the plane from the FTA hangar to the ASB
hangar in order to provide a more secure environment for the plane and
the Government property on board. NASA has been paying the hangar
rental fees since that date.
NASA was copied on a letter from attorney Scott L. Levitt dated October 1,
2012 indicating that FTA is in default of the lease terms with New
Hampshire Flight Procurement. This letter leaves us uncertain as to the
status of the plane. NASA's current lease of the ASB hangar space is paid
through 10/12/12. Because there is still a substantial amount of
Government property on board the plane, and the ongoing status of the
HIWC project within NASA is still undetermined, we need to ensure that
the aircraft will be kept in a secure location where Government personnel
can have continued access.
We have not received any notice from FTA regarding any change in the
official status of the aircraft lease. NASA is hereby requesting response to
the following questions:
1. What is the current status of the aircraft lease between FTA and
NHFP?
2. Who has legal custody of the aircraft at this time?
3. Is the aircraft currently covered by insurance? What are the limits
of that coverage?
4. What is your intent regarding the location of the plane and the
hangar rental beyond 10/12/12?
8
Please respond to the above questions by October 11, 2012 and copy
both myself and NASA counsel Jerald Kennemuth.
According to plaintiff, “[o]n October 3, 2012, Plaintiff via its counsel, Scott L. Levitt of
Levitt Law, APC [a professional corporation], conducted a telephonic conversation with
Jerald J. Kennemuth, Attorney for NASA, to discuss past due payments owed to Plaintiff
stemming from the Contract.” Plaintiff further states that “[o]n October 15, 2012, New
Hampshire sent NASA, via Threshold, an invoice for lease and insurance payment
totaling $39,500.00 for the month of September.”
Plaintiff alleges that, finally, “after numerous correspondence by Plaintiff” with
NASA, “regarding lack of payments and lack of progress by FTA on the Contract
requirements, NASA, on October 19, 2012 terminated the Contract with FTA.” On
October 30, 2012, James Fullmer, “Managing Member” of New Hampshire, sent a letter
to Ms. Karin E. Huth, NASA Glenn Research Center Contracting Officer. The letter
states in relevant part in part:
We fully support preserving the aircraft modifications for future use for the
HIWC program and not compromising the program in any way. Of course,
we make this commitment with the understanding that a resolution
between NASA and Threshold Aviation Group (TAG) for continuation of
the program occurs in a reasonable period of time, hopefully by the end of
2012. At some point thereafter, we would need to implement the Aircraft
De-Integration and Return to Service Program described in your
agreement with FTA if the program does not continue.
...
NHFP is interested in entering into an interim contract to:
1). Permit any remaining Government property to remain on the plane until
a final program decision is made on the HIWC project;
2). Retain the ability for NASA personnel to access the plane; and,
3). Keep an open line of communication with NASA as to the plane's
condition and any maintenance or modifications being made.
...
With respect to the lease payment due to NHFP under our lease with FTA,
we request that any lease payments not paid to FTA but funded within the
NASA budget be paid to NHFP. NHFP is currently due September rent
and rent through October 19, 2012, and have enclosed an invoice for this
rental period. We respectfully request this rent be paid at this time.
I also request that the funds allocated in the NASA budget under Task
Order 4 Aircraft (De-Integration and Return to Service) be made available
to NHFP should NASA elect not to continue the program.
The same day, October 30, 2012, plaintiff alleges that its counsel also sent a letter to
Mr. Kennemuth, NASA counsel, stating:
9
“My client obviously is concerned about being compensated for the time
that has elapsed in which it has not received lease, insurance and other
payments on the plane, as well as receiving the restoration amount as
agreed upon to bring the Aircraft back to the state of condition as it was at
the beginning of the HWIC [sic]. The agreement between NASA and FTA
allocated $234,889.00 under CLIN 4 for such work. Should NASA not
continue with the program and use of this Aircraft, NHFP [New Hampshire]
would expect immediate payment of such directly to NHFP.”
(internal citation omitted in original; emphasis in original).
According to defendant, on November 3, 2012, “Threshold arranged to fly the
aircraft from NASA’s leased hangar in to its own hangar in Chino, California.[5] At the
time that Threshold moved the aircraft, the aircraft still had NASA’s HWIC [sic]
equipment installed in it.” (internal citation omitted). Plaintiff alleges that on November 6,
2012, “Defendant's representative, Karin Huth, e-mailed Plaintiff's principal, James L.
Fullmer, requesting cost estimates, ‘for (1) continued leasing of the N81RR aircraft and
(2) the cost buy-out if NASA wanted the option to purchase the plane . . . .’” (emphasis
in original). According to plaintiff, “[w]ithin days, Plaintiff’s principal, James L. Fullmer
provided such information to Huth.”
Plaintiff contends, however, that, instead of following up on this request, “NASA
continued to maintain dominion and control over the Gulfstream II aircraft,” and that “[a]t
no time, during September 1, 2012, through the date of the filing of this Complaint, did
Plaintiff receive monies for the Aircraft which was possessed and controlled by NASA,
and which had NASA owned property installed in it, rendering the Aircraft unusable for
any other use.” Plaintiff presents as evidence of NASA’s possession, “a March 12, 2013
e-mail sent by Karin Huth, Contracting Officer of NASA to Threshold stating, ‘Once
these items have been removed from the plane, I anticipate that NASA will want to do a
final review of the aircraft and will then be ready to have the plane returned to
possession by the aircraft owner.’” (internal citation omitted in original; emphasis
added). Plaintiff further contends that “[f]rom October 19, 2012 and at various times
since, Defendant has requested that the Aircraft containing its equipment be secured
and safe, and that its equipment remain on said Aircraft and that such equipment be
accessible to Defendant.”
5
Defendant, in support, submitted a letter from a Mr. Mark DiLullo, to Ms. Huth, stating
that “N81RR departed KMHV arrived KCNO on 11/3/2012.” The aircraft lease between
New Hampshire and Flight Test Associates attached to plaintiff’s complaint gives the
registration for the Gulstream G-1159 airplane leased to Flight Test Associates as
N81RR. The acronym “KMHV” refers to Mojave Airport, in Mojave, California, see
Mojave, CA, Weather.gov, Nat’l Weather Service,
http://w1.weather.gov/xml/current_obs/KMHV.xml (last updated Aug. 29, 2014), and
“KCNO” refers to Chino Airport in Chino, California. See Chino Airport, Cnty. of San
Bernardino Dep’t of Airports, http://cms.sbcounty.gov/airports/Airports/Chino.aspx (last
visited Aug. 29, 2014).
10
On March 20, 2013, “after receiving no payment or express written contract from
NASA,” New Hampshire sent a letter to NASA demanding payment for $1,137,232.15,
not including attorneys fees and storage costs, and stated in the letter that “‘[s]hould this
amount be received within thirty (30) days, we will not seek sums beyond the specific
amount.’” Threshold, another subcontractor of Flight Test Associates, sent a separate
letter to NASA contracting officer Ms. Huth, dated March 25, 2013, which states, in
relevant part:
As a follow up to the March 25th correspondence, we [New Hampshire and
Threshold] believe that a meeting with yourself and any other appropriate
NASA personnel is appropriate. TAG [Threshold Aviation Group], NHFP
and NASA need resolution and closure in the form of payment for services
rendered and the return of government owned property, which are
mutually exclusive. A fast and friendly resolution is in the best interests of
all parties.
The letter included a list of “TAG Unpaid Costs and Loss of Revenue Resulting
From HIWC Cancellation.” (capitalization and emphasis in original). According to
plaintiff, New Hampshire, “[o]n April 18, 2013, almost one month later and after several
inquires, Plaintiff [New Hampshire] received response [sic] from NASA via its counsel,
Kennemuth, denying all of Plaintiff's claim.”
According to plaintiff, “finally, on May 15, 2013, NASA had the final government
owned equipment removed from the aircraft,” and on May 16, 2013, Threshold notified
New Hampshire of the removal. According to plaintiff, “[t]he Aircraft, due to
modifications and destruction by Defendant's prime contractor [Flight Test Associates],
under the Contract, is unable to be flown or used as a result of the installation, partial
disintegration, and modifications done on the Aircraft.” Plaintiff, New Hampshire, states
that, on May 21, 2013, it sent “its formal, certified claim letter to Karin Huth, Contracting
Officer for NASA,” for $1,107,389.00. According to plaintiff, it “received the response
from NASA to its May 21, 2013, certified claim, on August 2, 2013. Such response
denied all claims and damages of Plaintiff.”
Plaintiff filed a complaint in this court alleging, as stated above, four causes of
action. Plaintiff first claims that defendant breached (1) an express contract with plaintiff,
arguing at the same time that plaintiff is an intended third party beneficiary to the prime
contract between the government and Flight Test Associates. Plaintiff also claims
defendant (2) breached an implied contract with plaintiff, and (3) breached the covenant
of good faith and fair dealing. Finally, plaintiff (4) argues for recovery from defendant
under a theory of quantum valebant. Plaintiff seeks: “[l]ease Payments from September
1, 2012 through May 31, 2013,” of “$355,500.00 (nine months' rent, including insurance
on the aircraft) and the per diem amount from May 31, 2013 through the date of
payment,” “[l]ease allocated 235 hours of flight time at $2,200 per hour totaling
$517,000.00 for calendared and hourly maintenance,” “[r]estoration of Gulfstream II (this
11
sum is listed explicitly as $234,889.00 in NASA Contract No. NNCIBA04B),” and for
interest, attorney’s fees, and costs of the lawsuit. (all emphasis in original).
In response, defendant filed a motion to dismiss for lack of subject matter
jurisdiction and for failure to state a claim upon which relief might be granted, pursuant
to RCFC 12(b)(1) and RCFC 12(b)(6). As also noted above, defendant argues that
“[t]his Court does not possess subject matter jurisdiction to entertain NHFP’s complaint
for unpaid rent for its aircraft and related costs,” under any of its theories. Regarding
plaintiff’s breach of express contract claim, and third party beneficiary claim, defendant
maintains that “the prime contract does not indicate that NASA and the FTA [sic]
intended to confer rights to NHFP.” Regarding plaintiff’s breach of implied contract
claim, defendant maintains that plaintiff “fails to allege facts sufficient to support an
implied-in-fact contract between the Government and NHFP.” Defendant further argues
that, to the extent plaintiff is claiming that an implied-in-law contract was breached, this
would be outside the court’s jurisdiction under the Tucker Act. Regarding plaintiff’s
breach of the covenant of good faith and fair dealing claim, defendant argues that
plaintiff states a claim upon which relief cannot be granted because this covenant “does
not arise where the parties have no contract between them, as is the case here.”
Regarding plaintiff’s quantum valebant claim, defendant argues that such a claim is
based upon an implied-in-law contract theory of recovery, which is “outside this Court’s
jurisdiction.”
DISCUSSION
It is well established that “‘subject-matter jurisdiction, because it involves a
court’s power to hear a case, can never be forfeited or waived.’” Arbaugh v. Y & H
Corp., 546 U.S. 500, 514 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630
(2002)). “[F]ederal courts have an independent obligation to ensure that they do not
exceed the scope of their jurisdiction, and therefore they must raise and decide
jurisdictional questions that the parties either overlook or elect not to press.” Henderson
ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011); see also Gonzalez v.
Thaler, 132 S. Ct. 641, 648 (2012) (“When a requirement goes to subject-matter
jurisdiction, courts are obligated to consider sua sponte issues that the parties have
disclaimed or have not presented.”); Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010)
(“Courts have an independent obligation to determine whether subject-matter
jurisdiction exists, even when no party challenges it.” (citing Arbaugh v. Y & H Corp.,
546 U.S. at 514)); Avid Identification Sys., Inc. v. Crystal Import Corp., 603 F.3d 967,
971 (Fed. Cir.) (“This court must always determine for itself whether it has jurisdiction to
hear the case before it, even when the parties do not raise or contest the issue.”), reh’g
and reh’g en banc denied, 614 F.3d 1330 (Fed. Cir. 2010), cert. denied, 131 S. Ct. 909
(2011); Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1369 (Fed.
Cir.) (“Subject matter jurisdiction is an inquiry that this court must raise sua sponte, even
where . . . neither party has raised this issue.” (citing Textile Prods., Inc. v. Mead Corp.,
134 F.3d 1481, 1485 (Fed. Cir.), reh’g denied and en banc suggestion declined (Fed.
Cir. 1998)), reh’g and reh’g en banc denied (Fed. Cir. 2004), cert. granted in part, 546
U.S. 975 (2005), cert. dismissed as improvidently granted, 548 U.S. 124 (2006); Special
12
Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1342 (Fed. Cir. 2001) (“[A] court has a duty
to inquire into its jurisdiction to hear and decide a case.”); View Eng'g, Inc. v. Robotic
Vision Sys., Inc., 115 F.3d 962, 963 (Fed. Cir. 1997) ("[C]ourts must always look to their
jurisdiction, whether the parties raise the issue or not."). “The objection that a federal
court lacks subject-matter jurisdiction . . . may be raised by a party, or by a court on its
own initiative, at any stage in the litigation, even after trial and the entry of judgment.”
Arbaugh v. Y & H Corp., 546 U.S. at 506; see also Centr. Pines Land Co., L.L.C. v.
United States, 697 F.3d 1360, 1364 n.1 (Fed. Cir. 2012) (“An objection to a court's
subject matter jurisdiction can be raised by any party or the court at any stage of
litigation, including after trial and the entry of judgment.”); Rick’s Mushroom Serv., Inc. v.
United States, 521 F.3d 1338, 1346 (Fed. Cir. 2008) (“[A]ny party may challenge, or the
court may raise sua sponte, subject matter jurisdiction at any time.” (citing Arbaugh v. Y
& H Corp., 546 U.S. at 506; Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.),
reh’g and reh’g en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127 (2005);
and Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998))); Pikulin v.
United States, 97 Fed. Cl. 71, 76, appeal dismissed, 425 F. App’x 902 (Fed. Cir. 2011).
“Determination of jurisdiction starts with the complaint, which must be well-
pleaded in that it must state the necessary elements of the plaintiff's claim, independent
of any defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465
(Fed. Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1
(1983)), reh'g denied (Fed. Cir. 1997); see also SRA Int’l, Inc. v. United States, 114 Fed.
Cl. 247, 251 (2014); Klamath Tribe Claims Comm. v. United States, 97 Fed. Cl. 203,
208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710, 713
(2010). “Conclusory allegations of law and unwarranted inferences of fact do not suffice
to support a claim.” Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see
also McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J.,
concurring in part, dissenting in part).
In examining what must be pled in order to state a claim, under both RCFC
8(a)(2) and Rule (8)(a)(2) of the Federal Rules of Civil Procedure, a plaintiff need only
state in the complaint “a short and plain statement of the claim showing that the pleader
is entitled to relief.” RCFC 8(a)(2); Fed. R. Civ. P. 8(a)(2) (2014); see also Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). The United States Supreme Court, in the
Twombly case, stated that:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiff’s obligation to provide the
“grounds” of his “entitle[ment] to relief” requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of
action will not do. Papasan v. Allain, 478 U.S. 265, 286 (1986) (on a
motion to dismiss, courts “are not bound to accept as true a legal
conclusion couched as a factual allegation”). Factual allegations must be
enough to raise a right to relief above the speculative level, see 5 C.
Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d
ed. 2004) (hereinafter Wright & Miller) (“[T]he pleading must contain
13
something more . . . than . . . a statement of facts that merely creates a
suspicion [of] a legally cognizable right of action”), on the assumption that
all the allegations in the complaint are true (even if doubtful in fact), see,
e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002) (“Rule
12(b)(6) does not countenance...dismissals based on a judge’s disbelief of
a complaint’s factual allegations”); Scheuer v. Rhodes, 416 U.S. 232, 236
(1974) (a well-pleaded complaint may proceed even if it appears “that a
recovery is very remote and unlikely”). . . . [W]e do not require heightened
fact pleading of specifics, but only enough facts to state a claim to relief
that is plausible on its face.
Bell Atl. Corp. v. Twombly, 550 U.S. at 555-56, 570 (footnote and other citations
omitted; brackets and omissions in original); see also Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555–57, 570); Bell/Heery v.
United States, 739 F.3d 1324, 1330 (Fed. Cir.), reh’g and reh’g en banc denied (Fed.
Cir. 2014); Kam-Almaz v. United States, 682 F.3d 1364, 1367 (Fed. Cir. 2012) (“The
facts as alleged ‘must be enough to raise a right to relief above the speculative level, on
the assumption that all the allegations in the complaint are true (even if doubtful in
fact).’” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555)); Totes-Isotoner Corp. v.
United States, 594 F.3d 1346, 1354-55 (Fed. Cir.), cert. denied, 131 S. Ct. 92 (2010);
Bank of Guam v. United States, 578 F.3d 1318, 1326 (Fed. Cir.) (“In order to avoid
dismissal for failure to state a claim, the complaint must allege facts ‘plausibly
suggesting (not merely consistent with)’ a showing of entitlement to relief.” (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. at 557)), reh’g and reh’g en banc denied (Fed. Cir.
2009), cert. denied, 561 U.S. 1006 (2010); Cambridge v. United States, 558 F.3d 1331,
1335 (Fed. Cir. 2009) (“[A] plaintiff must plead factual allegations that support a facially
‘plausible’ claim to relief in order to avoid dismissal for failure to state a claim.” (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. at 570)); Cary v. United States, 552 F.3d 1373,
1376 (Fed. Cir.) (“The factual allegations must be enough to raise a right to relief above
the speculative level. This does not require the plaintiff to set out in detail the facts upon
which the claim is based, but enough facts to state a claim to relief that is plausible on
its face.” (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 570)), reh’g denied (Fed.
Cir.), cert. denied, 557 U.S. 937 (2009); Vargas v. United States, 114 Fed. Cl. 226, 232
(2014); Fredericksburg Non-Profit Housing Corp. v. United States, 113 Fed. Cl. 244
(2013); Peninsula Grp. Capital Corp. v. United States, 93 Fed. Cl. 720, 726-27 (2010),
appeal dismissed, 454 F. App’x 900 (2011); Legal Aid Soc’y of New York v. United
States, 92 Fed. Cl. 285, 292, 298, 298 n.14 (2010).
When deciding a case based on a lack of subject matter jurisdiction or for failure
to state a claim, this court must assume that all undisputed facts alleged in the
complaint are true and must draw all reasonable inferences in the non-movant's favor.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“In addition, when ruling on a
defendant's motion to dismiss, a judge must accept as true all of the factual allegations
contained in the complaint.” (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555-56 (citing
Swierkiewicz v. Sorema N. A., 534 U.S. at 508 n.1))); Scheuer v. Rhodes, 416 U.S. at
236 (“Moreover, it is well established that, in passing on a motion to dismiss, whether on
14
the ground of lack of jurisdiction over the subject matter or for failure to state a cause of
action, the allegations of the complaint should be construed favorably to the pleader.”),
abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982), recognized
by Davis v. Scherer, 468 U.S. 183, 190 (1984); United Pac. Ins. Co. v. United States,
464 F.3d 1325, 1327–28 (Fed. Cir. 2006); Samish Indian Nation v. United States, 419
F.3d 1355, 1364 (Fed. Cir. 2005); Boise Cascade Corp. v. United States, 296 F.3d
1339, 1343 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2002), cert. denied,
538 U.S. 906 (2003).
Defendant in its motion to dismiss contends that “there is no privity of contract
between the government and NHFP.” Contract claims against the United States are
governed by the Tucker Act, which grants jurisdiction to this court as follows:
The United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States founded either upon
the Constitution, or any Act of Congress or any regulation of an executive
department, or upon any express or implied contract with the United
States, or for liquidated or unliquidated damages in cases not sounding in
tort.
28 U.S.C. § 1491(a)(1) (2012). As interpreted by the United States Supreme Court, the
Tucker Act waives sovereign immunity to allow jurisdiction over claims against the
United States (1) founded on an express or implied contract with the United States, (2)
seeking a refund from a prior payment made to the government, or (3) based on federal
constitutional, statutory, or regulatory law mandating compensation by the federal
government for damages sustained. See United States v. Navajo Nat., 556 U.S. 287,
289-90 (2009); United States v. Mitchell, 463 U.S. 206, 215 (1983); see also Kam-
Almaz v. United States, 682 F.3d at 1368; Greenlee Cnty., Ariz. v. United States, 487
F.3d 871, 875 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2007), cert. denied,
552 U.S. 1142 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999).
As stated in the Tucker Act, privity of contract between a plaintiff and the United
States government is required to bring a cause of action in the United States Court of
Federal Claims for express and implied contracts. See Cienega Gardens v. United
States, 194 F.3d 1231, 1239 (Fed. Cir. 1998) (“Under the Tucker Act, the Court of
Federal Claims has jurisdiction over claims based on ‘any express or implied contract
with the United States.’ 28 U.S.C. § 1491(a)(1) (1994); We have stated that ‘[t]o
maintain a cause of action pursuant to the Tucker Act that is based on a contract, the
contract must be between the plaintiff and the government.’ Ransom v. United States,
900 F.2d 242, 244 (Fed. Cir. 1990).”), cert. denied, 528 U.S. 820 (1999); see also Estes
Exp. Lines v. United States. 739 F.3d 689, 693 (Fed. Cir. 2014); Flexfab, L.L.C. v.
United States, 424 F.3d 1254, 1265 (Fed. Cir. 2005) (The “government consents to be
sued only by those with whom it has privity of contract.”); S. Cal. Fed. Sav. & Loan
Ass'n v. United States, 422 F.3d 1319, 1328 (Fed. Cir.) (“A plaintiff must be in privity
with the United States to have standing to sue the sovereign on a contract claim,” but
noting exceptions to this general rule (citing Anderson v. United States, 344 F.3d 1343,
15
1352 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2003); United States v.
Algoma Lumber Co., 305 U.S. 415, 421 (1939))), reh’g and reh’g en banc denied (Fed.
Cir. 2005), cert. denied, 548 U.S. 904 (2006); Erickson Air Crane Co. of Wash. v. United
States, 731 F.2d 810, 813 (Fed. Cir. 1984) (“The government consents to be sued only
by those with whom it has privity of contract.”).
To have privity of contract with the United States government, and, therefore,
invoke the jurisdiction of the United States Court of Federal Claims for its breach of
contract claim, plaintiff “must show that either an express or implied-in-fact contract
underlies [the] claim.” Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1325 (Fed.
Cir. 1997). “For there to be an express contract, the parties must have intended to be
bound and must have expressed their intention in a manner capable of understanding.
A definite offer and an unconditional acceptance must be established.” Russell Corp. v.
United States, 210 Ct. Cl. 596, 606, 537 F.2d 474, 481 (1976), cert. denied, 429 U.S.
1073 (1977). Implied-in-fact contracts are agreements “‘“founded upon a meeting of the
minds, which, although not embodied in an express contract, is inferred, as a fact, from
conduct of the parties showing, in the light of the surrounding circumstances, their tacit
understanding.”’” Trauma Serv. Grp. v. United States, 104 F.3d at 1325 (quoting
Hercules, Inc. v. United States, 516 U.S. 417, 424 (1996) (quoting Balt. & Ohio R.R. Co.
v. United States, 261 U.S. 592, 597 (1923))); see also Kam-Almaz v. United States, 682
F.3d at 1368; Bank of Guam v. United States, 578 F.3d at 1329 (citing Trauma Serv.
Grp. v. United States, 104 F.3d at 1326); Bay View, Inc. v. United States, 278 F.3d
1259, 1265-66 (Fed. Cir. 2001), reh’g and reh’g en banc denied, 285 F.3d 1035 (Fed.
Cir.), cert. denied, 537 U.S. 826 (2002); Westlands Water Dist. v. United States, 109
Fed. Cl. 177, 203 (2013); Peninsula Grp. Capital Corp. v. United States, 93 Fed. Cl. at
728 (citing Balt. & Ohio R.R. Co. v. United States, 261 U.S. at 597; Russell Corp. v.
United States, 210 Ct. Cl. at 609, 537 F.2d at 482. Such an agreement will not be
implied “unless the meeting of minds was indicated by some intelligible conduct, act or
sign.” Balt. & Ohio R.R. Co. v. United States, 261 U.S. at 598; see also Russell Corp. v.
United States, 210 Ct. Cl. at 609, 537 F.2d at 482.
“A party alleging either an express or implied-in-fact contract with the
government ‘must show a mutual intent to contract including an offer, an acceptance,
and consideration.’” Bank of Guam v. United States, 578 F.3d at 1326 (quoting Trauma
Serv. Grp. v. United States, 104 F.3d at 1325); see also Chattler v. United States, 632
F.3d 1324, 1330 (Fed. Cir.) (citing Trauma Serv. Grp. v. United States, 104 F.3d at
1325), reh’g en banc denied (Fed. Cir. 2011); Hanlin v. United States, 316 F.3d 1325,
1328 (Fed. Cir. 2003) (citing City of Cincinnati v. United States, 153 F.3d 1375, 1377
(Fed. Cir. 1998)); Total Med. Mgmt., Inc. v. United States, 104 F.3d 1314, 1319 (Fed.
Cir.) (“The requirements for a valid contract with the United States are: a mutual intent
to contract including offer, acceptance, and consideration; and authority on the part of
the government representative who entered or ratified the agreement to bind the United
States in contract.”) (citations omitted), reh’g denied and en banc suggestion declined
(Fed. Cir.), cert. denied, 522 U.S. 857 (1997); Huntington Promotional & Supply, LLC v.
United States, 114 Fed. Cl. 760, 767 (2014); Eden Isle Marina, Inc. v. United States,
113 Fed. Cl. 372, 492 (2013); Council for Tribal Emp’t Rights v. United States, 112 Fed.
16
Cl. 231, 243 (2013). “‘A well pleaded allegation of an express, or implied-in-fact,
contract necessarily includes allegations going to each of the requisite elements of a
contract.’” De Archibold v. United States, 57 Fed. Cl. 29, 32 (2003) (quoting McAfee v.
United States, 46 Fed. Cl. 428, 432, appeal dismissed, 243 F.3d 565 (Fed. Cir. 2000)).
The elements of a binding contract with the United States are identical for express and
implied-in-fact contracts. See Night Vision Corp. v. United States, 469 F.3d 1369, 1375
(Fed. Cir. 2006) (“The elements of an implied-in-fact contract are the same as those of
an oral express contract.”), cert. denied, 550 U.S. 934 (2007); Hanlin v. United States,
316 F.3d at 1328 (“Thus, the requirements for an implied-in-fact contract are the same
as for an express contract; only the nature of the evidence differs.”); City of Cincinnati v.
United States, 153 F.3d at 1377 (“Like an express contract, an implied-in-fact contract
requires ‘(1) mutuality of intent to contract; (2) consideration; and, (3) lack of ambiguity
in offer and acceptance.’ . . . When the United States is a party, a fourth requirement is
added: The government representative whose conduct is relied upon must have actual
authority to bind the government in contract.” (quoting City of El Centro v. United States,
922 F.2d 816, 820 (Fed. Cir. 1990)); Trauma Serv. Grp. v. United States, 104 F.3d at
1325; Russell Corp. v. United States, 210 Ct. Cl. at 608–09); Huntington Promotional &
Supply, LLC v. United States, 114 Fed. Cl. at 767 (“The elements are the same for an
express or implied-in-fact contract . . .”); Vargas v. United States, 114 Fed. Cl. at 233;
Prairie County, Montana v. United States, 113 Fed. Cl. 194, 202 (2013); Mastrolia v.
United States, 91 Fed. Cl. 369, 384 (2010) (citing Flexfab, L.L.C. v. United States, 424
F.3d at 1265). The government, however, “‘is not bound by its agents acting beyond
their authority and contrary to regulation.’” Urban Data Sys., Inc. v. United States, 699
F.2d 1147, 1153 (Fed. Cir. 1983) (quoting Yosemite Park and Curry Co. v. United
States, 217 Ct. Cl. 360, 370, 582 F.2d 552, 558 (1978) (citing Fed. Crop Ins. Corp. v.
Merrill, 332 U.S. 380, 384 (1947))) (other citations omitted); see also Chattler v. United
States, 632 F.3d at 1330; Toon v. United States, 96 Fed. Cl. 288, 299-300 (2010);
Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. at 714.
Although plaintiff argues that defendant breached an express contract between
plaintiff and the federal government, plaintiff appears to confuse this claim with its other,
primary argument that plaintiff was an “intended third party beneficiary” under the prime
contract between Flight Test Associates and the federal government. The United States
Court of Appeals for the Federal Circuit has viewed claims for relief due to third party
beneficiary status as distinct from claims for relief due to privity of express or implied
contract. See Sioux Honey Ass'n v. Hartford Fire Ins. Co., 672 F.3d 1041, 1056 (Fed.
Cir.), cert. denied, 133 S. Ct. 126 (2012) (“A plaintiff lacking privity of contract can
nonetheless sue for damages under that contract if it qualifies as an intended third-party
beneficiary.”); Alpine Cnty., Cal. v. United States, 417 F.3d 1366, 1368 (Fed. Cir. 2005)
(“In order to sue for damages on a contract claim, a plaintiff must have either direct
privity or third-party beneficiary status.”); Anderson v. United States, 344 F.3d at 1352
(“Without either direct privity or third-party beneficiary status, the Paul sons lack
standing to sue the government and cannot therefore recover damages from the United
States.”); Nelson Const. Co. v. United States, 79 Fed. Cl. 81, 95 (2007); Entergy
Nuclear Indian Point 2, LLC v. United States, 64 Fed. Cl. 515, 523 (2005) (“To have
standing to bring a breach of contract claim, plaintiffs must also be in privity of contract
17
with the government or a third party beneficiary of a contract with the government.”);
see also Sullivan v. United States, 625 F.3d 1378, 1380 (Fed. Cir. 2010) (“This Court
has recognized limited exceptions to that general rule when a party standing outside of
privity ‘stands in the shoes of a party within privity.’” (quoting First Hartford Corp.
Pension Plan & Trust v. United States, 194 F.3d 1279, 1289 (Fed. Cir. 1999), reh’g en
banc denied (Fed. Cir. 2000))); O. Ahlborg & Sons, Inc. v. United States, 74 Fed. Cl.
178, 188 (2006) (“The third-party beneficiary exception exists to cover situations in
which the subcontractor ‘stands in the shoes of a party with privity.’” (quoting First
Hartford Corp. Pension Plan & Trust v. United States, 194 F.3d at 1289)). But see
Chancellor Manor v. United States, 331 F.3d 891, 901 (Fed. Cir. 2003) (holding that
“Appellants could establish privity of contract if they are intended third-party
beneficiaries of a contract with the United States . . . .” (citing First Hartford Corp.
Pension Plan & Trust v. United States, 194 F.3d at 1289); Stockton E. Water Dist. v.
United States, 70 Fed. Cl. 515, 526 (2006) (“One method of ‘establish[ing] privity of
contract [is] if [plaintiffs] are intended third-party beneficiaries of a contract with the
United States . . . .’” (quoting Chancellor Manor v. United States, 331 F.3d at 901))
(modifications in original), judgment entered, 75 Fed. Cl. 321, modifying in part, 76 Fed.
Cl. 470, reconsideration denied, 76 Fed. Cl. 497 (2007), rev’d on other grounds, 583
F.3d 1344 (Fed. Cir. 2009), partial reh’g granted, 638 F.3d 781 (Fed. Cir. 2011);
Klamath Irrigation Dist. v. United States, 67 Fed. Cl. 504, 532 (“Such privity would exist
if the irrigators are properly viewed as third-party beneficiaries to the district contracts.”
(citing Chancellor Manor v. United States, 331 F.3d at 901, and First Hartford Corp.
Pension Plan & Trust v. United States, 194 F.3d at 1289)), modifying order, 68 Fed. Cl.
119, denying certification, 69 Fed. Cl. 160 (2005).
Plaintiff, New Hampshire, in the case currently before the court, does not allege
any facts that cause the court to believe that plaintiff could establish that New
Hampshire held an express contract with defendant. See Bank of Guam v. United
States, 578 F.3d at 1326 (“A party alleging either an express or implied-in-fact contract
with the government must show a mutual intent to contract including an offer, an
acceptance, and consideration.”) (quotation omitted); Russell Corp. v. United States,
210 Ct. Cl. at 608 (“For there to be an express contract, the parties must have intended
to be bound and must have expressed their intention in a manner capable of
understanding. A definite offer and an unconditional acceptance must be established.”);
see also Black’s Law Dictionary 393, 701 (10th ed. 2014) (“[E]xpress” is defined in part
as “[c]learly and unmistakably communicated; directly stated with direction and clarity.”
“[E]xpress contract” is defined as “[a] contract whose terms the parties have explicitly
set out.”). (emphasis in original).
Plaintiff alleges that both parties provided consideration, one of the requirements
of contract formation, since plaintiff provided the aircraft and defendant “promised to pay
compensation in exchange for use of the Aircraft.” Plaintiff, however, does not allege
any written agreement between plaintiff and defendant, or any form of unconditional
acceptance or intent by the government to be bound to plaintiff. Plaintiff does not
contend that it was a signatory party to the prime contract between Flight Test
Associates and the federal government, and plaintiff admits in its complaint that it was a
18
“subcontractor” to Flight Test Associates. The prime contract attached to plaintiff’s
complaint only shows, as signatories, the government’s contracting officer and Mr.
Ligon from Flight Test Associates. The prime contract between Flight Test Associates
and NASA contains none of the terms one might expect to see if the government
intended the contractual terms to flow directly to plaintiff. The prime contract between
Flight Test Associates and NASA also does not specify a right of recourse against the
government on behalf of any subcontractor – only Section H.13, “MONITORING OF
SUBCONTRACTOR” even mentions any subcontractor. (capitalization in original). New
Hampshire’s airplane lease with Flight Test Associates also provides no support for
plaintiff’s express contract claim. In fact, the lease agreement between New Hampshire
and Flight Test Associates explicitly states that the government was not a participant in
the lease agreement: “No governmental approval is required for Lessor or Lessee to
enter into this Lease.” Additionally, no obligations on the part of the government are
expressed in the lease agreement between plaintiff and Flight Test Associates. Instead,
the lease agreement makes clear that plaintiff, New Hampshire, in the case of
nonpayment, is to seek recourse against Flight Test Associates. The lease agreement
states that, plaintiff can “accelerate the terms of this Lease and demand and recover
from Lessee [Flight Test Associates] damages,” and “[c]ause Lessee, at Lessee's
expense, to return the Aircraft to Lessor at a point in the United States designated by
Lessor.” Plaintiff, therefore, has failed to demonstrate that an express contract was
created between New Hampshire and the United States government.
Alternatively, plaintiff argues that New Hampshire is an intended third party
beneficiary to the prime contract between defendant and Flight Test Associates.
According to plaintiff:
The fact that the Contract explicitly lists the subcontractor, dedicates an
entire section to the subcontractor, and states that the, “subcontractor's
performance is critical to the success of the contract . . .” more than
satisfies the Court's requirements that, the contract reflect the express or
implied intention of the [contracting] parties to benefit the third party.
(modification in original). Plaintiff focuses on Section H.13 of the prime contract between
Flight Test Associates and NASA, stating:
“H.13 MONITORING OF SUBCONTRACTOR
The parties agree that this contract was negotiated on the basis that the
Contractor's proposed operations subcontractor, Threshold Aviation
Group,[6] will provide the aircraft under lease to the prime contractor . . . .
6
Defendant also notes that, “[a]s an initial matter, this provision is unavailing to NHFP
[New Hampshire Flight Procurement] because another subcontractor, Threshold, and
not NHFP, is named.” Plaintiff contends, however, that, “[d]espite the Contract's
language, the aircraft was not supplied by Threshold Aviation Group, but instead a
Gulfstream II (N81RR) aircraft, was supplied directly by Plaintiff New Hampshire Flight
19
The parties agree that the proposed subcontractor's performance is critical
to the success of the contract. . . {emphasis added}
The Contractor shall ensure that there are clear lines of communications,
including, when necessary, direct communications, between the
Government and the operations [sic] subcontractor to ensure
airworthiness, and safe and successful operations and maintenance of the
aircraft.”
(modifications and emphasis in original). Plaintiff argues that, “[t]he supplying of a jet is
the single, salient item of the entire Contract. The party who supplies the multi-million
dollar functional aircraft is obviously the recipient of both the express and implied
intention of the parties to the contract.” Plaintiff notes that the prime contract between
Flight Test Associates and NASA contains five Cost Line Items, which all deal directly
with the provision, preparation, and use of the aircraft. Plaintiff further notes that the
contract instructs the prime contractor, Flight Test Associates, to “provide aircraft under
lease.” Therefore, according to plaintiff, “[o]bviously, the owner of the ‘aircraft’ can
reasonably infer an intention” by the government to pay the aircraft owner, “especially
when the Contract explicitly calls out for a leased aircraft to be supplied by a named
subcontractor.”
Plaintiff points to Chevron U.S.A. v. United States, a 2013 decision by a Judge of
this court, for the proposition that:
“For third party beneficiary status to be conferred on a party, the “contract
must reflect the express or implied {emphasis added} intention of the
[contracting] parties to benefit the third-party.” Montana v. United States,
124 F.3d 1269, 1273 (Fed. Cir. 1997). While third party does not need
to be specifically identified in the contract {emphasis added}, third
party beneficiary status can only be bestowed on the those [sic] parties
that ‘fall within a class clearly intended to be benefited’ by the contract . . .”
(quoting Chevron U.S.A., Inc. v. United States, 110 Fed. Cl. 747, 782–83 (2013)
(quoting State of Montana v. United States, 124 F.3d 1269, 1273 (Fed. Cir. 1997)))
(emphasis added). According to plaintiff, “‘to determine whether a non-party to a
contract is a third party beneficiary, the court must “look to whether the beneficiary
would be reasonable in relying on the promise as manifesting an intention to confer a
right on him.”’” (quoting Chevron U.S.A., Inc. v. United States, 110 Fed. Cl. at 783
(quoting Dewakuku v. Martinez, 271 F.3d 1031, 1041 (Fed. Cir. 2001))). Plaintiff states
that in Chevron U.S.A., the intended third party beneficiary was an owner of certain oil
Procurement, LLC to FTA via a lease dated January 6, 2011.” Defendant admits in its
motion to dismiss, “[t]he prime contract incorrectly identifies Threshold as the provider of
the aircraft,” and that “[i]nstead, FTA entered into a lease subcontract with plaintiff
subcontractor NHFP for the aircraft.”
20
fields. According to plaintiff, the prime contracting party, Chevron, “leased the fields
from the land owner for the purpose of entering into a contract with the Government,”
and the court, therefore, allowed the plaintiff, the owner of the oil fields, to claim a third
party beneficiary right to a contract to extract oil from the fields. Plaintiff contends that
the facts of the above captioned case parallel those in Chevron U.S.A., Inc. v. United
States, because although plaintiff was not a named party to the contract, the unnamed
party, like the oil field owner, had a critical role in the contract. According to plaintiff, in
the case currently before the court, a section of the government’s prime contract with
Flight Test Associates was dedicated to the performance of the projected subcontractor,
and stated that the “‘subcontractor's performance is critical to the success of the
contract.’” (emphasis in original). According to plaintiff, “any lease, including that
referenced in the Contract, contains lease payments to the Lessor and a beneficial
interest therein.” Although plaintiff was not specifically mentioned as a subcontractor in
the prime contract between Flight Test Associates and NASA, plaintiff points to a
number of other decisions from this Circuit, each allegedly supporting the proposition
that a third party benefit does not need to be explicitly mentioned in a prime contract to
be granted relief, but instead, “[t]he test for intended third party beneficiary status is
whether the contract reflects the intent of the parties to the contract to benefit the third
party.” (citing Roedler v. Dep't of Energy, 255 F.3d 1347, 1352 (Fed. Cir. 2001), U.S.
Ecology, Inc. v. United States, 245 F.3d 1352, 1356 (Fed. Cir. 2001), Caguas Cent.
Fed. Savings Bank v. United States, 215 F.3d 1304, 1309 (Fed. Cir. 2000), and State of
Montana v. United States, 124 F.3d at 1273).
Additionally, defendant responds that, “[t]he Federal Circuit recognizes that third
parties to a contract with the Government may sue the Government only if the ‘contract
reflect[s] the express or implied intention of the [contracting] parties to benefit the third-
party.’” (quoting State of Montana v. United States, 124 F.3d at 1273) (modifications in
original). Defendant claims that “[i]n order for a third party subcontractor to sue the
Government under a prime contract, the prime contract must have a provision, the
entire purpose of which is to confer rights upon the third-party subcontractor.”
Defendant indicates that an example of when a party can be considered a third party
beneficiary is in D&H Distributing Co. v. United States, in which the government
included “a joint payment clause in the prime contract that required the Government to
pay part of its payments under the prime contract directly to a subcontractor.” (citing
D&H Distrib. Co. v. United States, 102 F.3d 542, 547 (Fed. Cir. 1996)). Defendant also
suggests that proper evidence of a third party beneficiary status can come from “a prime
contractor’s payment bond, which is a contract between the contractor and the surety
that ensures that such subcontractors will be paid if the contractor defaults.” (citing
Fireman’s Fund Ins. Co. v. United States, 909 F.2d 495, 499 n.1 (Fed. Cir. 1990)).
Defendant argues that in the case currently before this court, however, as opposed to
the examples cited, the prime contract between Flight Test Associates and NASA
“confers no right to NHFP [New Hampshire] at all.” Defendant contends that Section
H.13 of the prime contract between Flight Test Associates and NASA, “MONITORING
OF SUBCONTRACTOR,” “is to ensure that the prime contractor [Flight Test
Associates] utilize a reliable aircraft provider—that is, the purpose of this provision is to
provide protection to the Government; it cannot reasonably be read to confer a right
21
upon a subcontractor.” (capitalization and emphasis in original). Defendant cites as
support State of Montana v. United States, 124 F.3d at 1273–74, for the proposition that
a third party beneficiary “must be ‘reasonable in relying on the promise as manifesting
an intention to confer a right on him.’” Defendant argues that mere “[e]vidence that the
Government has notice that a subcontractor is providing a salient or foundational item to
perform the contract is insufficient” to enable the subcontractor to claim a third party
beneficiary status in the prime contract between Flight Test Associates and NASA.
Defendant also maintains that any other indications of the government’s intent, after the
contract was executed, such as the e-mails between New Hampshire and NASA, do not
confer a third party beneficiary status onto plaintiff, as “[t]he relevant inquiry with respect
to third party beneficiary status is the intent of the prime contract parties at the time they
entered into the prime contract.”
Defendant claims that plaintiff’s reference to Chevron U.S.A., Inc. v. United
States is misplaced, because, “[c]ontrary to NHFP’s assertion otherwise, Chevron
U.S.A., Inc. did not involve a plaintiff that was an ‘actual owner (in fee simple or via
lease) of certain oil fields,’” who then leased the oil fields to the government. Instead,
according to defendant, in Chevron U.S.A., Chevron already had a contract with the
government, acquired through its predecessor Standard Oil, regarding the “joint
operation and production of a petroleum reserve.” Defendant contends that the dispute
in Chevron U.S.A. concerned the narrow issue of ex parte communications with an
independent petroleum engineer responsible for allocating rights between Chevron and
the government, and that,
in finding that Chevron was a third party beneficiary of the prime contract,
the Court expressly found that the prime contract parties intended to
benefit Chevron because the entire purpose of the 1996 agreement
between the Government and the IPE [independent petroleum engineer]
was to assist the Department and Chevron in finalizing their respective
interests in certain oil fields.
(citing Chevron U.S.A. v. United States, 110 Fed. Cl. at 783).
Instead, defendant analogizes the above captioned case to the United States
Court of Appeals for the Federal Circuit’s decision in Flexfab, LLC v. United States, 424
F.3d 1254. Defendant contends that in Flexfab, the United States Court of Appeals for
the Federal Circuit held that intent to benefit requires more than notice; but also that the
government “‘knows of a condition precedent to a third-party’s performance as a sub-
contractor, and specifically modifies the prime contract so as to ensure the third-party’s
continued performance.’” (quoting Flexfab, LLC v. United States, 424 F.3d at 1263)
(emphasis in original).
Regarding third party beneficiary status, the United States Supreme Court wrote:
it is recognized as an exception to the general principle, which proceeds
on the legal and natural presumption that a contract is only intended for
22
the benefit of those who made it. Before a stranger can avail himself of the
exceptional privilege of suing for a breach of an agreement to which he is
not a party, he must, at least, show that it was intended for his direct
benefit.
German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230 (1912); see
also Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 307 (1927); Sioux Honey
Ass'n v. Hartford Fire Ins. Co., 672 F.3d at 1056 (“‘In order to prove third party
beneficiary status, a party must demonstrate that the contract not only reflects the
express or implied intention to benefit the party, but that it reflects an intention to benefit
the party directly.’” (quoting Glass v. United States, 258 F.3d 1349, 1354 (Fed. Cir.)))
(emphasis in original), amended on reh'g, 273 F.3d 1072 (Fed. Cir. 2001); G4S Tech.
LLC v. United States, 114 Fed. Cl. 662, 671 (2014). The United States Court of Appeals
for the Federal Circuit has stated that “‘[t]he intent of the parties to the contract is
therefore the cornerstone of a claim for third-party beneficiary status,’” Sioux Honey
Ass'n v. Hartford Fire Ins. Co., 672 F.3d at 1056 (quoting Flexfab, L.L.C. v. United
States, 424 F.3d at 1259), and that a “party does not obtain third-party beneficiary
status, however, ‘merely because the contract would benefit them.’” Id. (quoting FDIC v.
United States, 342 F.3d 1313, 1319 (Fed. Cir. 2003)); see also Astra USA, Inc. v. Santa
Clara Cnty., Cal., 131 S. Ct. 1342, 1347 (2011) (“A nonparty becomes legally entitled to
a benefit promised in a contract . . . only if the contracting parties so intend.”).
“One way to ascertain such intent is to ask whether the beneficiary would be
reasonable in relying on the promise as manifesting an intention to confer a right on
him.” State of Montana v. United States, 124 F.3d at 1273 (citing Restatement (Second)
of Contracts § 302(1)(b) cmt. d); Dewakuku v. Martinez, 271 F.3d at 1041; US Ecology,
Inc. v. United States, 245 F.3d at 1356; Chevron U.S.A., Inc. v. United States, 110 Fed.
Cl. at 783. Of particular importance in the intent analysis is the “contracting officer’s
understanding of the situation.” Flexfab, L.L.C. v. United States, 424 F.3d at 1263. As
the Federal Circuit explained:
We thus hold that for third-party beneficiary status to lie, the contracting
officer must be put on notice, by either the contract language or the
attendant circumstances, of the relationship between the prime contractor
and the third-party subcontractor so that an intent to benefit the third party
is fairly attributable to the contracting officer.
Id.; FloorPro, Inc. v. United States, 98 Fed. Cl. 144, 147 (2011), vacated on other
grounds, 680 F.3d 1377 (Fed. Cir. 2012); Kawa v. United States; 86 Fed. Cl. 575, 587–
88 (noting that “the duty lies with the contractor and/or the third party to make any third-
party beneficiary status known to the person in the Government with contracting
authority”), motion for relief from judgment denied, 368 F. App’x 106 (Fed. Cir. 2009);
see also G4S Tech. LLC v. United States, 114 Fed. Cl. at 671 (“[I]t is possible to infer
the requisite intent on the part of the government ‘from the actions of the contracting
officer and circumstances providing the contracting officer with appropriate notice that
the contract provision at issue was intended to benefit the third party.’” (quoting Flexfab,
23
L.L.C. v. United States, 424 F.3d at 1262). In addition, “the nonparty must still ‘fall within
a class clearly intended to be benefited thereby.’” Sioux Honey Ass'n v. Hartford Fire
Ins. Co., 672 F.3d at 1056-57 (quoting State of Montana v. United States, 124 F.3d at
1273); G4S Tech. LLC v. United States, 114 Fed. Cl. at 671; Arbelaez v. United States,
94 Fed. Cl. 753, 767 (2010).
Third party beneficiary status is an “exceptional privilege,” German Alliance Ins.
Co. v. Home Water Supply Co., 226 U.S. at 230, which “should not be granted liberally.”
Flexfab, L.L.C. v. United States, 424 F.3d at 1259; Carter v. United States, 98 Fed. Cl.
632, 637 (2011); see also Sioux Honey Ass'n v. Hartford Fire Ins. Co., 672 F.3d at
1056. As a Judge of this court explained, “‘Government contracts often benefit the
public, but individual members of the public are treated as incidental beneficiaries
unless a different intention is manifested.’” Carter v. United States, 102 Fed. Cl. 61, 71
(2011) (quoting Restatement (Second) Contracts § 313, cmt. a (1981)); see also G4S
Tech. LLC v. United States, 114 Fed. Cl. at 670 (“Nevertheless, it remains the general
rule that a subcontractor that agrees to supply materials or labor to a general contractor
is only an incidental beneficiary of any contract between the general contractor and its
ultimate client. See 9 Corbin on Contracts § 45.3 (rev. ed. 2007); Restatement (Second)
of Contracts § 302 cmt. e., illus. 19.”).
The analysis, however, is not completely black-and-white; courts can look past
the words of the contract, although only in exceptional circumstances. See State of
Montana v. United States, 124 F.3d at 1273 (“The intended beneficiary need not be
specifically or individually identified in the contract . . . .”); G4S Tech. LLC v. United
States, 114 Fed. Cl. at 671; Chevron U.S.A., Inc. v. United States, 110 Fed. Cl. at 782;
see also Sioux Honey Ass'n v. Hartford Fire Ins. Co., 672 F.3d at 1056. “When the
intent to benefit the third party is not expressly stated in the contract, evidence thereof
may be adduced.” Sioux Honey Ass'n v. Hartford Fire Ins. Co., 672 F.3d at 1056-57
(quoting Roedler v. Dep't of Energy, 255 F.3d at 1352; Boye v. United States, 90 Fed.
Cl. 392, 409 (2009); O. Ahlborg & Sons, Inc. v. United States, 74 Fed. Cl. at 189 n.12.
Nonetheless, “it is extremely difficult to establish status as an intended third-party
beneficiary by inference in the context of a government contract.” G4S Tech. LLC v.
United States, 114 Fed. Cl. at 671. Thus, the question of whether a party is “a third-
party beneficiary under the contract is a mixed question of law and fact.” Flexfab, L.L.C.
v. United States, 424 F.3d at 1259 (citing Glass v. United States, 258 F.3d at 1353).
Considering the facts in the above captioned case in the most favorable light to
plaintiff, plaintiff fails to credibly allege any intent by the government to directly benefit
plaintiff at the time of awarding the prime contract between Flight Test Associates and
NASA. There is no clause that grants a remedy or right in the prime contract to plaintiff.
Although the “critical” importance of the subcontractor and aircraft is demonstrated
throughout the prime contract between Flight Test Associates and NASA, the
subcontractor is not given any rights under the prime contract as a result. Instead, the
clause of the prime contract that mentions any subcontractor is designed to protect the
government’s position, not confer any rights or remedies to the subcontractor New
Hampshire:
24
H.13 MONITORING OF SUBCONTRACTOR
The parties agree that this contract was negotiated on the basis that the
Contractor's proposed operations subcontractor, Threshold Aviation
Group,[7] will provide the aircraft under lease to the prime contractor and
will be performing contract requirements related to the airworthiness of the
aircraft, aircraft operations, and aircraft maintenance. The parties agree
that the proposed subcontractor's performance is critical to the success of
the contract. Therefore, the Contracting Officer's written approval is
required for any substitution of another operations subcontractor.
...
The Contractor shall ensure that there are clear lines of communications,
including, when necessary, direct communications, between the
Government and the operations subcontractor to ensure airworthiness,
and safe and successful operations and maintenance of the aircraft.
Nothing herein relieves the Contractor from responsibility for performing
this contract.
Section H.13 puts additional requirements on the prime contractor, Flight Test
Associates, to “ensure that there are clear lines of communications, including, when
necessary, direct communications, between the government and the separate
operations subcontractor, Threshold, to ensure airworthiness, and safe and successful
operations and maintenance of the aircraft.” The clause also requires “written approval”
by the government before the aircraft subcontractor, New Hampshire, is to be switched.
The last sentence of the provision, “[n]othing herein relieves the Contractor [Flight Test
Associates] from responsibility for performing this contract,” further emphasizes that the
clause is designed to place burdens on the prime contractor, Flight Test Associates,
and protect the government, not create a third party beneficiary relationship with plaintiff
New Hampshire.
An examination of the remedies for default and payment provisions under the
prime contract between Flight Test Associates and NASA, and the airplane lease
agreement between New Hampshire and Flight Test Associates, also does not support
plaintiff’s argument that it is a third party beneficiary of the prime contract. No particular
right to payment, or remedy in case of default was made specifically available to plaintiff
in the prime contract between Flight Test Associates and NASA, nor are any facts
alleged that indicate that the government specifically modified, or intended to modify,
the prime contract to guarantee any payment or assurance of payment to the third party.
7
As noted above, plaintiff, New Hampshire alleges, and the court agrees, that the
inclusion of “Threshold Aviation Group” in the contract was a mistake, and New
Hampshire’s name should have been there instead.
25
Cf. Kawa v. United States, 86 Fed. Cl. at 587 (“‘[W]hen a government agent with
authority to contract on the government's behalf knows of a condition precedent to a
third party's performance as a sub-contractor, such as receipt of payment directly from
the government, and specifically modifies the prime contract so as to ensure the third
party's continued performance,’” an intent to benefit the third party can be found.
(quoting Flexfab, L.L.C. v. United States, 424 F.3d at 1623)). The prime contract
between Flight Test Associates and NASA, in terms of remedies, incorporates by
reference “52.233-4 APPLICABLE LAW FOR BREACH OF CONTRACT CLAIM (OCT
2004),” which states, that “United States law will apply to resolve any claim of breach of
this contract.” 48 C.F.R. § 52.233-4 (2013) (last revised October 5, 2004). The prime
contract between Flight Test Associates and NASA also lists a number of specific
remedies for delays in schedule, but these are only between Flight Test Associates and
NASA. New Hampshire’s rights to payment and remedies in case of breach are instead
detailed in its separate January 6, 2011 aircraft lease agreement between New
Hampshire and Flight Test Associates, which was formed after the December 20, 2010
signing of the prime contract between Flight Test Associates and the federal
government. The aircraft lease agreement states that, “[i]n the event that NASA
terminates the HIWC contract, Lessee [Flight Test Associates] shall be allowed to
cancel this Lease Agreement” and will be able to stop paying rent once the plane is
returned by Flight Test Associates to New Hampshire in its original condition. The
aircraft lease agreement between New Hampshire and Flight Test Associates provides
plaintiff recourse against Flight Test Associates, including acceleration of rent, return of
the airplane, repairs, and damages in the case of a breach of contract by Flight Test
Associates. The aircraft lease agreement between New Hampshire and Flight Test
Associates, however, makes clear that the government did not separately agree to
benefit plaintiff in case of a breach by Flight Test Associates. The aircraft lease
agreement between New Hampshire and Flight Test Procurement states, “[n]o
governmental approval is required for Lessor or Lessee to enter into this Lease.” In a
subcontracting arrangement that does not grant the subcontractor a remedy or any
direct ability to collect from the government, it is unreasonable for plaintiff to rely on the
subcontract “as manifesting an intention to confer a right on” the third party by the
government. See State of Montana v. United States, 124 F.3d at 1273; Sioux Honey
Ass'n v. Hartford Fire Ins. Co., 672 F.3d at 1056–57.
In Flexfab, the decision by the United States Court of Appeals for the Federal
Circuit is an indication of how difficult it is to achieve third party beneficiary status in a
contract with the United States. In Flexfab, the Defense Logistics Agency, Defense
Supply Center Columbus contracted with Capital City Pipes, Inc. (Capital City Pipers) to
supply air duct hose. See Flexfab, L.L.C. v. United States, 424 F.3d at 1257. “As a
supplier without manufacturing capabilities, Capital City [Pipes] entered into a sub-
contract with C & S [C & S Industrial Supply Co.], which in turn entered into a sub-
contract with Flexfab for production of the hose.” Id. Upon request from Flexfab, Capital
City Pipes sent a letter to the government to request a modification of the prime contract
between Capital City Pipes and the government, so that Flexfab’s address could be
given as the “Place of Performance” and the destination for remittance of payment. See
id. at 1258. The fact that this modification was made specifically for Flexfab’s benefit
26
was unknown to the agency. See id. Capital City Pipes, however, neglected to change
the electronic remittance account to send electronic payments to Flexfab. See id. After
delivery by the subcontractor, Flexfab to the government, the agency paid Capital City
Pipes in full, electronically, and, subsequently, “Capital City later became insolvent and
never paid Flexfab.” See id. In affirming a United States Court of Federal Claims
decision not to award plaintiff third party beneficiary status, the Federal Circuit stated:
The record reflects that neither Mr. Cook [Chief Executive Officer of C &S
Industrial Supply Co.], nor Mr. Taylor [an agency small business
specialist], nor any Flexfab personnel ever communicated with the
contracting officers to explain and memorialize the alleged demand by
Flexfab that it would perform only if paid directly by the government into an
escrow account for its benefit. In short, Flexfab relied entirely on others,
mainly Capital City, to assure that Flexfab, not Capital City, would receive
direct payment for the delivered hose.
Id. at 1258. The Flexfab court stated that, “the contracting officer's understanding of the
situation that is key,” and emphasized that Flexfab failed to ensure that the contracting
officer was aware of, and agreed to, any intent to benefit Flexfab through modification of
the prime contract between Capital City Pipes and the government. See id. The Flexfab
court stated that “[n]either the contract nor the modification shows intent by the
contracting officers to benefit Flexfab by linking in any way the remittance address to
Flexfab. Looking beyond the contract itself, Flexfab can point to no evidence of record
that establishes such intent.” Id. at 1264. In the above captioned case, the mere
mention of the subcontractor in a section that discusses monitoring and oversight,
coupled with some discussion about the importance of the subcontractor’s services,
similarly does not indicate any intent by the government’s contracting officer to link
payment, or any other right under the contract, to the subcontractor.8
Although not cited by the parties, another case also involving the failed Capital
City Pipes entity, is instructive. In Kawa v. United States, the plaintiff, as the escrow
agent, represented another subcontractor to Capital City Pipes also producing hose
equipment, JGB Enterprises. See Kawa v. United States, 86 Fed. Cl. at 578. The
plaintiff was the “remit to” beneficiary in the prime contract between Capital City Pipes
and the Defense Logistics Agency. See id. at 578, 580 (internal quotation omitted).
Although the prime contractor, Capital City Pipes, and plaintiff understood this to mean
“that it reflected the Government’s acceptance of an assignment from Capital City to
JGB of the right to receive payment,” the government, and Lu Ann Boscy, the
contracting officer, did not share that view. See id. at 580. The agency continued
remitting to Capital City Pipes, and after Capital City Pipes went bankrupt, plaintiff sued
8
The court in Flexfab also wrote: “By requiring an authorized government contracting
officer to be engaged in the creation of enforceable obligations under these section 8(a)
contracts, we better equip the government to insure that contracting parties comply with
the regulations pertaining to their participation in the program.” Flexfab, L.L.C. v. United
States, 424 F.3d at 1263–64.
27
for payments under the contract. See id. The Kawa court held, quoting from Flexfab,
that:
Unfortunately for plaintiff, as in Flexfab, 424 F.3d at 1258, “[t]he record is
void of evidence that [Ms. Boscy] knew that the modification to the
contract was in any way associated with [JGB's] escrow account. The
record reflects that neither [Mr. Bernhardt], nor Mr. Taylor, nor [Mr. Kawa,
nor] any [JGB] personnel ever communicated with the contracting officer[ ]
to explain and memorialize the alleged demand by [JGB] that it would
perform only if paid directly by the government into an escrow account for
its benefit. In short, [JGB and Mr. Kawa] relied entirely on others, mainly
Capital City, to assure that [Mr. Kawa], not Capital City, would receive
direct payment for the delivered hose.”
Id. at 587 (quoting Flexfab, L.L.C. v. United States, 424 F.3d at 1258) (modifications in
original). The Kawa court noted, “the duty lies with the contractor and/or the third party
to make any third-party beneficiary status known to the person in the Government with
contracting authority.” See id. at 589 (internal quotation omitted).
In the case currently before the court, even with every factual inference viewed in
the most favorable light to plaintiff, New Hampshire offered no indication of any effort to
make its alleged right to payment under the prime contract between Flight Test
Associates and NASA known to the government’s contracting officer, until well after
payments stopped being received by New Hampshire from the prime contractor, Flight
Test Associates. See id. at 588; Flexfab, L.L.C. v. United States, 424 F.3d at 1263. New
Hampshire did not attempt to amend the prime contract between Flight Test Associates
and NASA to have NASA remit payments directly to New Hampshire, like the plaintiffs
in Kawa and Flexfab attempted to do. See Kawa v. United States, 86 Fed. Cl. at 588;
Flexfab, L.L.C. v. United States, 424 F.3d at 1258. The court in Kawa stated that “[o]f
course, the appearance of an entirely new entity in the remittance address, along with
specific notifications to the Government that rights under the contract were being
assigned to that entity and unmistakable Government recognition of that assignment
would likely create rights in the assignee.” Kawa v. United States, 86 Fed. Cl. at 588–89
(citing Riviera Finance of Texas, Inc. v. United States, 58 Fed. Cl. 528 (2003)). Neither
in Kawa, nor in New Hampshire’s case, however, did those actions occur or were
alleged to have occurred. Cf. JGB Enters., Inc. v. United States, 63 Fed. Cl. 319, 334
(2004), motion for relief from judgment denied, 71 Fed. Cl. 468, appeal dismissed, 192
F. App’x 962 (Fed Cir. 2006), aff’d, 496 F.3d 1259 (Fed. Cir. 2007) (finding that JGB
Enterprises was a third party beneficiary to another purchase order because “[t]he only
reasonable interpretation of the record mandates a finding that the Government
intended to modify the contract to assure JGB of payment so that JGB would ship the
hose assemblies that were ‘urgently’ needed.”) (internal citation omitted).
Plaintiff points to discussions plaintiff had with the government about Flight Test
Associates’ failure to pay its subcontractors. Plaintiff alleges that NASA was informed
that New Hampshire was not getting paid by Flight Test Associates as early as June 14,
28
2012. Plaintiff further states that its counsel on October 3, 2012, “conducted a
telephonic conversation with Jerald J. Kennemuth, Attorney for NASA, to discuss past
due payments owed to Plaintiff” from its subcontract with Flight Test Associates. Plaintiff
also states in its complaint that it sent an invoice to NASA for $39,500.00 on October
15, 2012, and engaged in further communications with NASA thereafter. None of those
conversations indicate, however, that plaintiff would not perform unless a “condition
precedent” was met by the government, or that the contracting officer was going to
modify “the prime contract [between Flight Test Associates and NASA] so as to ensure
the third party's continued performance.” See Flexfab, L.L.C. v. United States, 424 F.3d
at 1263. Defendant correctly contends that intent to endow third party beneficiary status
requires more than notice to the government; but also that the government “‘knows of a
condition precedent to a third-party’s performance as a sub-contractor, and specifically
modifies the prime contract so as to ensure the third-party’s continued performance.’”
(quoting id.) (emphasis in original). The government’s communications with plaintiff,
New Hampshire, indicate that, while the government may have communicated with
plaintiff about the possibility of “continued leasing of the N81RR aircraft,” or purchase of
the airplane, in the end the government denied all of the claims. (emphasis in original).
When Ms. Huth of NASA stated “I anticipate that NASA will want to do a final review of
the aircraft and will then be ready to have the plane returned to possession by the
aircraft owner.” (emphasis in original), that signified an end to the relationship and a
return of plaintiff’s property, not “as manifesting an intention to confer a right . . . .” See
Dewakuku v. Martinez, 271 F.3d at 1041.
The decision in G4S Technology LLC v. United States also speaks to plaintiff’s
contention that its numerous correspondences with the government somehow garnered
a third party beneficiary right in the prime contract to plaintiff. In G4S Technology LLC v.
United States, a subcontractor, G4S Technology LLC (G4S), provided engineering
services to the prime recipient of a loan by the federal Rural Utilities Service, named
Open Range, for the construction of rural wireless broadband. See G4S Tech. LLC v.
United States, 114 Fed. Cl. at 664–65. When Open Range started running into financial
troubles, “the Administrator of the RUS [Rural Utilities Service], received multiple e-
mails indicating that Open Range's vendors were seeking immediate payment of past-
due bills from Open Range.” Id. at 666–67. The court in G4S Technology noted that
multiple conversations were ongoing by and within the Rural Utilities Service about
subcontractor payments, and that the agency was aware that, “Open Range's
arrearages to its vendors represented a risk to deploying the broadband network.” See
id. at 667. In the litigation that ensued after Open Range’s bankruptcy, G4S asserted a
claim against the government for payments defaulted on by Open Range. See id. at
668–69. The court wrote the following:
[I]in order for a subcontractor to obtain the status of an intended third-party
beneficiary, it must provide clear evidence that an authorized government
official approved a contract provision for the express purpose of
effectuating payment from the government to the subcontractor(s). This
showing can be satisfied by the unambiguous language of the prime
contract and any modifications made thereto, and by other objective
29
evidence that clearly demonstrates the authorized official's unambiguous
intent to ensure payment to the subcontractor(s). The court will not,
however, infer that the government intended to directly benefit the
subcontractor merely because an authorized government official (1)
oversees the activities of the prime contractor; (2) becomes aware that the
prime contractor has failed to timely pay its subcontractors, and/or (3)
makes funds available to the prime contractor in order for the prime
contractor to pay its subcontractors.
Id. at 672–73. The G4S Technology court found that, despite the agency being aware of
vendor issues, “plaintiff has not identified any provision of the Loan Amendment, Equity
Commitment Letter (including Schedule B–1), or Shareholder Agreement in which RUS
unambiguously agreed to modify the loan advance process for the express purpose of
effectuating payment directly to Open Range's vendors.” Id.
Similarly, in the above captioned case, NASA’s mere awareness of plaintiff’s
difficulties in getting payment from Flight Test Associates was insufficient to create a
third party status, as plaintiff, New Hampshire, has failed to allege that the prime
contract between Flight Test Associates and NASA identified New Hampshire as an
intended beneficiary of the contract, or that the agency “unambiguously agreed to
modify” any agreement in order to effectuate payment to plaintiff. See id. The court in
G4S Technology determined that increased oversight by the government on the prime
contractor still failed to create a third party beneficiary status in a subcontractor. See id.
(“RUS’s close oversight of Open Range, awareness of Open Range's arrearages, and
willingness to advance loan funds to Open Range, taken individually or in combination,
are insufficient to demonstrate that RUS approved the Loan Amendment for the express
purpose of directly or jointly paying Open Range's vendors.”). In the above captioned
case, the provision “H.13 MONITORING OF SUBCONTRACTOR” in the prime contract
between Flight Test Associates and NASA, similarly allowed for close oversight of Flight
Test Associates by the government, but, as in G4S Technology, did not offer any
subcontractor with third party beneficiary status. (capitalization and emphasis in
original).
The case plaintiff points to, Chevron U.S.A. v. United States, is distinguishable
from the above captioned case. In Chevron U.S.A., as noted above, Chevron's
predecessor, Standard Oil Company and the United States had entered into an earlier
contract governing joint operation and production of Naval Petroleum Reserve No. 1.”
Chevron U.S.A., Inc. v. United States, 110 Fed. Cl. at 752–53. The government’s
interest was then transferred to the Department of Energy. See id. at 754. To resolve
the equity allocation within Naval Petroleum Reserve No. 1 between Chevron and the
Department of Energy, Congress required the Department of Energy to determine the
equity interests after obtaining the recommendation from an independent petroleum
engineer, who was mutually acceptable to the parties. See id. The contract engaging
the independent petroleum engineer was made between the Department of Energy and
the engineer, and Chevron was not a party to it. See id. at 798–99. As part of this
process, the Department of Energy and Chevron agreed on a procedure for interacting
30
with the engineer, which “prohibited Chevron and DOE [the Department of Energy] from
having ex parte communications with the” expert. See id. at 756. The Department of
Energy was found to have breached this protocol in a number of ways. See id. at 800.
Although the government tried to argue that Chevron could not bring suit for this breach,
as it was not in privity with the engagement contract between the Department of Energy
and the independent petroleum engineer, the court found that Chevron was a third party
beneficiary to the agreement. See id. at 782-83. The court directed that, “to determine
whether a non-party to a contract is a third party beneficiary, the court must ‘look to
whether the beneficiary would be reasonable in relying on the promise as manifesting
an intention to confer a right on him.’” Id. at 783 (quoting Dewakuku v. Martinez, 271
F.3d at 1041). The Federal Circuit in Dewakuku found:
In this case, the July 8, 1996 contract between DOE and the Equity IPE
expressed that both DOE and the Equity IPE intended Chevron to benefit
from the procedures set forth in the Equity IPE Protocol. The Equity IPE
was retained to provide “independent and impartial” equity determinations
to “adequately protect” the interests of both DOE and Chevron. In fact, Ms.
Egger agreed that it was reasonable for Chevron to rely on the ex parte
prohibition in the Equity IPE Protocol.
Dewakuku v. Martinez, 271 F.3d at 1041
The unique fact pattern in Chevron U.S.A. is far different from the procurement
contract at issue in the above captioned case. The contract in Chevron U.S.A. was
designed also to “protect” the interests of Chevron in a dispute between the Department
of Energy and Chevron, and the Department of Energy stated that Chevron could
reasonably rely on the contract. See id. In plaintiff’s case, however, the prime contract
between Flight Test Associates and NASA makes clear that, “[t]he intent of this contract
is for a Contractor to provide an aircraft modified with Government furnished
instrumentation to conduct High Ice Water Content (HIWC) flight research.” There is no
evidence that the contract was intended to protect or assure payment to any
subcontractor, no matter how critical their role, or that the contracting officer ever
indicated that New Hampshire could rely on the prime contract between Flight Test
Associates and NASA to create a direct relationship with the defendant.
Plaintiff relies on the fact that the airplane it provided to Flight Test Associates
was essential to the prime contract between Flight Test Associates and NASA, since
high-altitude atmospheric testing requires a working airplane. Plaintiff notes that the
prime contract’s Cost Line Items center around preparation or use of an airplane, and
that “[t]he supplying of a jet is the single, salient item of the entire Contract.” The
importance of a third party to a contract, however, does not mean the parties to the
contract intended their arrangement to directly benefit the third party. See Sioux Honey
Ass'n v. Hartford Fire Ins. Co., 672 F.3d at 1056 (“In order to prove third party
beneficiary status, a party must demonstrate that the contract not only reflects the
express or implied intention to benefit the party, but that it reflects an intention to benefit
the party directly.” (quoting Glass v. United States, 258 F.3d at 1354)) (emphasis in
31
original). In many government contracts there are multiple subcontractors, each with
critical roles to play. Allowing any subcontractor to attain a third party beneficiary status
upon a showing that it was a “critical” part of the work statement would go against the
United States Supreme Court’s guidance that third party beneficiary status is an
“exceptional privilege,” German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S.
at 230, which, as the Federal Circuit additionally notes, “should not be granted liberally.”
Flexfab, L.L.C. v. United States, 424 F.3d at 1259. A finding of third party beneficiary
status creates a waiver of sovereign immunity in disputes before this court, and the
traditional view is that “[w]aivers of sovereign immunity are construed narrowly.” Hinck
v. United States, 446 F.3d 1307, 1313 (Fed. Cir. 2006) (quoting Chancellor Manor v.
United States, 331 F.3d 898; Flexfab, L.L.C. v. United States, 424 F.3d at 1263 (“But
the government does not lightly consent to suit.”); Travelers Cas. & Sur. Co. of Am. v.
United States, 103 Fed. Cl. 101, 103 (2012); see also Normandy Apartments, Ltd. v.
United States, 100 Fed. Cl. 247, 254 (2011) (“[T]he effect of finding privity of contract
between a party and the United States is to find a waiver of sovereign immunity.”
(quoting Cienega Gardens v. United States, 194 F.3d at 1239)); Carter v. United States,
98 Fed. Cl. at 635. Allowing a subcontractor, even a critical one, to be given third party
beneficiary rights under a prime contract, based simply on its importance to the prime
contract, does not comport with established precedent.
Plaintiff also argues that, from October 19, 2012, the day the government
cancelled the prime contract between Flight Test Associates and NASA, “Defendant
imposed an obligation on Plaintiff, by possessing dominion and control over Plaintiff’s
Aircraft, creating an implied contract.” Although plaintiff does not clarify in its complaint
what type of “implied” contract it is referring to, in its response to defendant’s motion to
dismiss plaintiff’s complaint, plaintiff explains that it its jurisdictional arguments are in
part, “based upon the theories of . . . implied-in-fact contract.” Plaintiff states, in support
of its argument, that “[f]rom October 19, 2012 and at various times since, Defendant has
requested that the Aircraft containing its equipment be secured and safe, and that its
equipment remain on said Aircraft and that such equipment be accessible to
Defendant.” Plaintiff points to a letter attached to defendant’s motion to dismiss, which
indicates that, as of October 9, 2012, the government still desired to hold onto the
airplane despite known issues with the prime contractor, Flight Test Associates. The
letter dated October 9, 2012 from NASA to Flight Test Associates, but not to plaintiff,
states: “Because there is still a substantial amount of Government property on board the
plane, and the ongoing status of the HIWC project within NASA is still undetermined, we
need to ensure that the aircraft will be kept in a secure location where Government
personnel can have continued access.”9 Plaintiff also relies on a “communication from
9
Defendant also notes that the request to keep the aircraft safe was made to
Threshold, not to New Hampshire, citing the complaint from Threshold in the parallel
case before this court. See Complaint ¶ 56, Threshold Techs., Inc. v. United States, No.
13-599C (“From October 19, 2012 and at various times since, Defendant has requested
of Plaintiff [Threshold Technologies], that the Aircraft containing its equipment be
secured and safe, and that its equipment remain on said Aircraft and that such
equipment be accessible to Defendant.”).
32
[Ms.] Huth, Defendant's Contracting Officer, in her March 12, 2013 e-mail: ‘Once these
items have been removed from the plane, I anticipate that NASA will want to do a final
review of the aircraft and will then be ready to have the plane returned to possession by
the aircraft owner.’” (internal citation omitted in original; emphasis in original).
Although this statement suggests an end to the utilization of the airplane, plaintiff,
nonetheless, incorrectly infers that this e-mail was an admission by defendant that
NASA intended to contract for leasing of the airplane after expiration of the prime
contract between Flight Test Associates and NASA. Similarly, trying to keep defendant’s
property on the plane secure also does not create an express or implied-in-fact contract
between plaintiff, New Hampshire, and the government. Moreover, according to
defendant, “[t]he complaint contains no allegation that the Government separately
agreed to a rent price or other terms of NHFP’s [New Hampshire’s] aircraft lease with
NHFP after the October 19, 2012 termination for default” of the prime contract,
Defendant further contends that no authority supports an argument that “mere
knowledge of the subcontract by the Government, and a presumption that a subcontract
has payment terms, could impute that contractual agreement to the Government.”
As noted above, “[t]o establish the existence of a valid contract with the United
States, whether express or implied-in-fact, a plaintiff must show (1) mutuality of intent;
(2) consideration; (3) lack of ambiguity in the offer and acceptance; and (4) actual
authority to bind the government in contract on the part of the government official whose
conduct is relied upon.” Vargas v. United States, 114 Fed. Cl. at 233 (citing Kam–Almaz
v. United States, 682 F.3d at 1368; Suess v. United States, 535 F.3d 1348, 1359 (Fed.
Cir. 2008); Flexfab, L.L.C. v. United States, 424 F.3d at 1265; City of El Centro v. United
States, 922 F.2d at 820; see also Night Vision Corp. v. United States, 469 F.3d at 1375
(“The elements of an implied-in-fact contract are the same as those of an oral express
contract.”); Hanlin v. United States, 316 F.3d at 1328; Huntington Promotional & Supply,
LLC v. United States, 114 Fed. Cl. at 767. The facts, as alleged by plaintiff, even given
all possible inferences in favor of plaintiff, do not support plaintiff’s contention that the
mere holding of the plane by the government, prior to a clear indication of returning it to
plaintiff, or discussion of a possible future lease, led to an implied-in-fact contract
between the parties. The record contains a November 26, 2012 e-mail from the
contracting officer Ms. Huth to Mr. Fullmer requesting cost estimates “‘for (1) continued
leasing of the N81RR aircraft and (2) the cost buy-out if NASA wanted the option to
purchase the plane . . . .’” (emphasis in original). A request for pricing information also
does not create a lack of ambiguity or offer and acceptance, and does not bring a
contract between plaintiff and the government into existence. See Anderson v. United
States, 344 F.3d at 1353, 1353 n.3; City of El Centro v. United States, 922 F.2d at 820;
Vargas v. United States, 114 Fed. Cl. at 233.
Plaintiff has failed to allege any other facts which could help make it appear
“plausible on its face” that the government accepted, or planned to accept, a contract for
continued leasing of the airplane. See Bell Atl. Corp. v. Twombly, 550 U.S. at 555.
There is no evidence alleged that NASA decided to hold onto the plane long-term, or
form a contract with plaintiff, after October 19, 2012, the date NASA cancelled the
33
contract with Flight Test Associates. The record currently before the court indicates that
by November 3, 2012, just two weeks after the prime contract between NASA and Flight
Test Associates was cancelled, “Threshold arranged to fly the aircraft from NASA’s
leased hangar in to its own hangar in Chino, California on NHFP’s behalf,” and therefore
the plane was already out of the government’s physical possession. Moreover, just a
few months after the March 12, 2013 request by NASA regarding government
equipment aboard the New Hampshire airplane, plaintiff’s complaint indicates that,
“Defendant's last remaining installed equipment was finally removed from Plaintiff’s
aircraft.” The approximately eight months, from October 2012 to May 2013, between
when the prime contract between Flight Test Associates and NASA was ended and
when the government’s equipment was removed from plaintiff’s airplane is not sufficient
in and of itself to establish that an implied-in-fact contract formed between New
Hampshire and the government, given all the requirements that must be met to form a
contract with the government.
Plaintiff, New Hampshire, claims: “Beginning in June of 2012, or sooner,
Defendant knew that FTA was defaulting in its duties under the Contract, including
failure to make payment to vital parties who were essentially subcontractors,” and yet,
despite communications of these failures by plaintiff, defendant failed to act. Plaintiff
alleges that these actions by the government, along with defendant’s “refusal to
compensate Plaintiff for the occupation of the Aircraft,” after the cancellation of the
prime contract between Flight Test Associates and NASA on October 19, 2012, violated
the covenant of good faith and fair dealing, as well as 48 C.F.R. § 1.602-2 (2013),
which, according to plaintiff, “requires the contracting officer to ensure impartial, fair,
and equitable treatment.” Plaintiff alleges that defendant “purposely employed delay
tactics” to get out of forming an express contract with plaintiff, “all the while, slowly
having Defendant's property removed from Plaintiff’s aircraft.” Defendant responds that
“‘[t]he covenant of good faith and fair dealing is an implied duty that each party to a
contract owes to its contracting partner,’” quoting from Centex v. United States, 395
F.3d 1283, 1304 (Fed. Cir. 2005). Defendant states that “[t]he covenant of good faith
and fair dealing, therefore, does not arise where the parties have no contract between
them, as is the case here.” Therefore, according to defendant, this claim must be
dismissed “because it fails to state a claim upon which relief may be granted.”
“All government contracts contain an implied covenant of good faith and fair
dealing.” Nat’l Australia Bank v. United States, 55 Fed. Cl. 782, 790 (2003), aff’d, 452
F.3d 1321 (Fed. Cir. 2006). “However, the implied obligation ‘“must attach to a specific
substantive obligation, mutually assented to by the parties.”’” Detroit Housing Corp. v.
United States, 55 Fed. Cl. 410, 417 (2003) (quoting Allstates Air Cargo, Inc. v. United
States, 42 Fed. Cl. 118, 124 (1998) (quoting State of Alaska v. United States, 35 Fed.
Cl. 685, 704 (1996), aff'd, 119 F.3d 16 (Fed. Cir. 1997) (table), cert. denied, 522 U.S.
1108 (1998))); see also Night Vision Corp. v. United States, 68 Fed. Cl. 368, 389 (2005)
(“Clearly, the case has at its predicate the existence of a valid, mutually assented-to
contract, for which a covenant arises that proscribes the government from interfering
with reasonable expectations flowing from that particular contract.”), aff’d, 469 F.3d
1369 (Fed. Cir. 2006), cert. denied, 550 U.S. 934 (2007). Plaintiff, New Hampshire, has
34
failed to provide any evidentiary basis for the existence of an alleged express or
implied-in-fact contract. Plaintiff also has failed to show, based on the facts and
allegations presented, even with all factual inferences viewed in the light most beneficial
towards plaintiff, that it was a third party beneficiary to the prime contract between Flight
Test Associates and the federal government. In short, plaintiff has failed to allege that it
is in privity with the federal government. Because plaintiff does not have a contract with
the government, its claim that there was a breach of the covenant of good faith and fair
dealing also fails. See Detroit Housing Corp. v. United States, 55 Fed. Cl. at 419.
Similarly, without a contractual relationship with the government, plaintiff is unable to
rely on 48 C.F.R. § 1.602-2 to allege improper conduct on the part of the government.
See 48 C.F.R. § 1.602-2 (“Contracting officers are responsible for ensuring performance
of all necessary actions for effective contracting, ensuring compliance with the terms of
the contract, and safeguarding the interests of the United States in its contractual
relationships. . . . Contracting officers shall-- . . . Ensure that contractors receive
impartial, fair, and equitable treatment.”).
Plaintiff’s last claim for recovery is under the theory of quantum valebant.
According to the United States Court of Appeals for the Federal Circuit:
Quantum valebant is “[t]he reasonable value of goods and materials.”
Black's Law Dictionary 1276 (8th ed. 2004). In general, the difference
between quantum meruit and quantum valebant is that “[t]he former is said
to apply to services and the latter to goods . . . .” Urban Data Sys., Inc. v.
United States, 699 F.2d 1147, 1154 n. 8 (Fed. Cir. 1983).
United Pac. Ins. Co. v. United States, 464 F.3d at 1330 n.3. This court has noted that
“[t]he distinction however, is not significant, as courts have used quantum meruit to refer
to both.” Enron Fed. Solutions, Inc. v. United States, 80 Fed. Cl. 382, 410 n.26 (2008)
(citing United States v. Amdahl Corp., 786 F.2d 387).
Plaintiff contends that “[w]ithin the last two years Plaintiff supplied and delivered
certain goods at the special request of Defendant; and Defendant agreed to pay the
reasonable value of those goods.” Plaintiff further contends that although defendant had
“dominion and control” over the airplane, it never compensated plaintiff, and, therefore,
defendant “has been unjustly enriched by occupying a jet aircraft (which cost millions of
dollars) for over eight months without paying any party for such occupation.” Defendant
argues, in response, that the court’s jurisdiction under the Tucker Act “‘extends only to
contracts either express or implied in fact, and not to contracts implied in law,’” quoting
from Hercules, Inc. v. United States, 516 U.S. at 423. Defendant maintains, “where the
Government accepts services for which it is not otherwise contractually obligated to pay,
only an implied-in-law contract is at issue and any resulting claim is outside this Court’s
Tucker Act jurisdiction.” Defendant argues “[u]njust enrichment is an example of a
theory of recovery based upon an implied-in-law contract,” and plaintiff’s quantum
valebant claim is outside of this court’s jurisdiction. See Hercules, Inc. v. United States,
516 U.S. at 423 (The United States Supreme Court has “repeatedly held that this
jurisdiction [under the Tucker Act] extends only to contracts either express or implied in
fact, and not to claims on contracts implied in law.”); Lumbermens Mut. Cas. Co. v.
35
United States, 654 F.3d 1305, 1315 (Fed. Cir.) (When plaintiff “sought reimbursement
from the government under the theory that, by fully performing its bond obligation,
Lumbermens conferred more benefit on the government than was legally required and
the government was unjustly enriched,” the court concluded that this was a implied-in-
law theory of recovery, because plaintiff wanted recovery under equity principles “in
order to prevent an injustice.”), reh’g en banc denied (Fed. Cir. 2011); Barrett Refining
Corp. v. United States, 242 F.3d 1055, 1059 (Fed Cir.) (stating that the Tucker Act
“‘does not reach claims based on contracts implied in law, as opposed to those implied
in fact’” (quoting United States v. Mitchell, 463 U.S. at 218), reh’g denied (Fed. Cir.
2001); Lawndale Restoration Ltd. P’ship ex rel. Boulevard Realty Servs. Corp. v. United
States, 95 Fed. Cl. 498, 506 (2010), appeal dismissed, 459 F. App’x 913 (2011); see
also Cent. Freight Lines, Inc. v. United States, 87 Fed. Cl. 104, 112 n.8 (2009)
(Agreeing with the government’s view that “a claim of unjust enrichment is equitable in
nature and is not based on a contractual relationship,” and “‘is therefore based upon a
contract implied in law, over which this court has not been given jurisdiction.’” (quoting
Enron Fed. Solutions, Inc. v. United States, 80 Fed. Cl. at 409)).
The United States Court of Appeals for the Federal Circuit has indicated:
A recovery in quantum meruit[ or quantum valebant,] is based on an
implied-in-law contract. That is, a contract in which there is no actual
agreement between the parties, but the law imposes a duty in order to
prevent injustice. The Court of Federal Claims, however, lacks jurisdiction
over contracts implied in law. 28 U.S.C. § 1491(a)(1) (2000).
Int’l Data Prods. Corp. v. United States, 492 F.3d 1317, 1325 (Fed. Cir. 2007); see also
Perri v. United States, 340 F.3d 1337, 1343 (Fed. Cir. 2003) (In an quantum meruit
claim implied in law, “[t]he theory is that if one party to a transaction provides goods or
services to the other party that the parties intended would be paid for, but the recipient
refuses to pay for them, the law will imply a contract for the recipient to pay the fair
value of what it has received.” (citing United States v. Amdahl Corp., 786 F.2d at 393));
Am. Tel. & Tel. Co. v. United States, 124 F.3d 1471, 1479 (Fed. Cir. 1997) (“Quantum
meruit is the name given to an implied-in-law remedy for unjust enrichment. As a
general rule, it falls outside the scope of relief available through the Court of Federal
Claims.” (citing Trauma Serv. Group v. United States, 104 F.3d at 1324–25)), granting
reh’g en banc and vacating on other grounds, 136 F.3d 793 (Fed. Cir. 1998), reh’g en
banc, 177 F.3d 1368 (Fed. Cir. 1999).
In limited circumstances, a contractor can seek recovery on a contract claim on a
quantum meruit or quantum valebant basis when, for example, the government
attempted to form a contract with a private party, but a defect prevented the contract
“from actually coming into existence or the government simply refuses to pay.” Enron
Fed. Solutions, Inc. v. United States, 80 Fed. Cl. at 409-10; see also Lumbermens Mut.
Cas. Co. v. United States, 654 F.3d at 1317 n.9; Council for Tribal Emp’t Rights v.
United States, 112 Fed. Cl. at 252-53. As explained by the United States Court of
Appeals for the Federal Circuit:
36
On the other hand, “[w]here a benefit has been conferred by the contractor
on the government in the form of goods or services, which it accepted, a
contractor may recover at least on a quantum valebant or quantum meruit
basis for the value of the conforming goods or services received by the
government prior to the rescission of the contract for invalidity. The
contractor is not compensated under the contract, but rather under an
implied-in-fact contract.” United Pac. Ins. Co. v. United States, 464 F.3d
1325, 1329–30 (Fed. Cir. 2006).
Int’l Data Prods. Corp. v. United States, 492 F.3d at 1325. The Federal Circuit also
stated in United Pacific Insurance Co. v. United States:
“Where a benefit has been conferred by the contractor on the government
in the form of goods or services, which it accepted, a contractor may
recover at least on a quantum valebant or quantum meruit basis for the
value of the conforming goods or services received by the government
prior to the rescission of the contract for invalidity. The contractor is not
compensated under the contract, but rather under an implied-in-fact
contract.”
United Pac. Ins. Co. v. United States, 464 F.3d at 1333 (quoting United States v.
Amdahl Corp., 786 F.2d 387, 393 (Fed. Cir. 1986)) (footnote omitted; emphasis in
original).
The United States Court of Appeals for the Federal Circuit, in Perri v. United
States, explained that the exception to the traditional rule to refer to quantum valebant
or quantum meruit claims as implied-in-law claims requires that at some point there was
an attempted contract between the government and the plaintiff:
Perri relies upon cases in which this court, the Court of Claims, and the
Court of Federal Claims recognized quantum meruit recovery. See, e.g.,
Gould, Inc. v. United States, 935 F.2d 1271 (Fed. Cir. 1991); Prestex, Inc.
v. United States, 162 Ct. Cl. 620, 320 F.2d 367 (1963). Those cases,
however, involved situations in which the plaintiff provided goods or
services to the government pursuant to an express contract, but the
government refused to pay for them because of defects in the contract
that rendered it invalid or unenforceable. Since in that circumstance it
would be unfair to permit the government to retain the benefits of the
bargain it had made with the plaintiff without paying for them, the courts
utilized quantum meruit as a basis for awarding the plaintiff the fair value
of what it supplied to the government.
We know of no case, however, and Perri has not cited any, in which either
we, the Court of Claims, or the Court of Federal Claims has permitted
quantum meruit recovery in the absence of some contractual arrangement
37
between the parties. In the present case, the Court of Federal Claims
ruled that there was no contract between Perri and the government to pay
him twenty-five percent of the amount the government received from the
forfeiture that Perri alleged he aided the government in obtaining.
Perri v. United States, 340 F.3d at 1343–44. The United States Court of Federal Claims
interpreted Perri as follows:
While it is true that the Federal Circuit and Court of Claims have permitted
quantum meruit recovery, this occurs in the very limited circumstance
where a plaintiff provides services or goods to the government pursuant to
an attempted express contract, but either some defect prevents an
express contract from actually coming into existence or the government
simply refuses to pay. See Perri v. United States, 340 F.3d 1337, 1343–44
(Fed. Cir. 2003) (citing Gould, Inc. v. United States, 935 F.2d 1271 (Fed.
Cir. 1991); United States v. Amdahl Corp., 786 F.2d 387, 393 (Fed. Cir.
1986); and Prestex, Inc. v. United States, 162 Ct. Cl. 620, 320 F.2d 367
(1963)). In this type of case, a contract is found if a meeting of the minds
can be inferred, “as a fact, from conduct of the parties showing, in the light
of the surrounding circumstances, their tacit understanding.” Hercules,
516 U.S. at 424, 116 S. Ct. 981 (quoting Baltimore & Ohio R.R. Co. v.
United States, 261 U.S. 592, 597, 58 Ct. Cl. 709, 43 S. Ct. 425, 67 L. Ed.
816 (1923)).
Enron Fed. Solutions, Inc. v. United States, 80 Fed. Cl. at 409 (footnote omitted;
emphasis in original); see also Council for Tribal Emp’t Rights v. United States, 112
Fed. Cl. at 252–53 (“quantum meruit permits the contractor to be ‘compensated under
an implied-in-fact contract when the contractor confers a benefit to the government in
the course of performing a government contract that is subsequently declared invalid.’”
(quoting Gould, Inc. v. United States, 67 F.3d at 930) (emphasis in original); Veridyne
Corp. v. United States, 83 Fed. Cl. 575, 585-86 (2008) (“‘[T]hough a contract be
unenforceable against the Government, because not properly advertised, not
authorized, or for some other reason, it is only fair and just that the Government pay for
goods delivered or services rendered and accepted under it.’ Id. [United States v.
Amdahl Corp., 786 F.2d at 393.] This is so even where ‘an award is plainly or palpably
illegal” and “made contrary to statutory or regulatory requirements because of some
action or statement by the contractor.’ Id. at 395.”).
A Judge of United States Court of Federal Claims explained that to recover on a
quantum meruit or quantum valebant basis, however, the circumstances must permit
the court to conclude that all the basic elements of an implied-in-fact contract were
present between plaintiff and the government at the time of the alleged contract
creation, including mutual intent, offer, acceptance, consideration, and authority on
behalf of the government party to contract:
38
“For contracts with the United States, however, an implied-in-fact
contract—just as an express contract—requires an authorized agent of the
Government.” Trauma Service Group v. United States, 104 F.3d at 1326
(citing City of El Centro v. United States, 922 F.2d 816, 820 (Fed. Cir.
1990)). Importantly, an implied-in-fact contract will not be found if an
express contract already covers the same subject matter. Id. [Trauma
Serv. Grp. v. United States, 104 F.3d at 1326]; see also Atlas Corp. v.
United States, 895 F.2d 745, 754–55 (Fed. Cir. 1990).
Enron Fed. Solutions, Inc. v. United States, 80 Fed. Cl. at 10; see also Council for Tribal
Emp’t Rights v. United States, 112 Fed. Cl. at 253 (“Because Ms. Forcia did not
possess the authority to bind the government to Amendments 2 or 6, the Council cannot
demonstrate the existence of an implied-in-fact contract on which to base quantum
meruit recovery. Its claim for such recovery must accordingly be denied.” (internal
citation omitted)). As explained above, “[t]he requirements for a valid contract with the
United States are: a mutual intent to contract including offer, acceptance, and
consideration; and authority on the part of the government representative who entered
or ratified the agreement to bind the United States in contract.” Total Med. Mgmt., Inc. v.
United States, 104 F.3d at 1319; City of Cincinnati v. United States, 153 F.3d at 1377.
In the above captioned case, even with all reasonable factual inferences read in
favor of plaintiff, no express or implied-in-fact contract existed between plaintiff and
defendant. See Total Med. Mgmt., Inc. v. United States, 104 F.3d at 1319. The case law
requires at a minimum a mutually attempted contract to allow for recovery on a
“quantum meruit basis.” See Int’l Data Prods. Corp. v. United States, 492 F.3d at 1325;
Perri v. United States, 340 F.3d at 1343–44; Enron Fed. Solutions, Inc. v. United States,
80 Fed. Cl. at 409–10. In its complaint, plaintiff tries to point to equity considerations to
support its claim. Plaintiff states that defendant was “unjustly enriched by occupying a
jet aircraft” for eight months. Plaintiff’s allegation, however, fails in this court. See
Lumbermens Mut. Cas. Co. v. United States, 654 F.3d at 1316; Cent. Freight Lines, Inc.
v. United States, 87 Fed. Cl. at 112 n.8; Enron Fed. Solutions, Inc. v. United States, 80
Fed. Cl. at 409.
CONCLUSION
For the foregoing reasons, plaintiff, New Hampshire, did not enter into an
express or implied-in-fact contract with the federal government, and, therefore, does not
have privity of contract with the federal government. Plaintiff also is not a third party
beneficiary to the prime contract between the Flight Test Associates and the federal
government. Because plaintiff is not in a contractual relationship with the federal
government, plaintiff’s claim of breach of the covenant of good faith and fair dealing also
cannot be considered by this court. Plaintiff’s prayer for quantum valebant relief is not
linked to a contractual relationship in place with the federal government. Therefore, the
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court GRANTS defendant’s motion to DISMISS New Hampshire’s complaint. The Clerk
of the Court shall enter JUDGMENT consistent with this opinion.
IT IS SO ORDERED.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge
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