CAFC Releases Decision Addressing CBCA's Jurisdiction Over Software Developers Claiming To Be Parties To A Procurement Contract

• Published date: 15 March 2024
• Law Firm: Wiley Rein
• Author: Scott A. Felder and Lisa Rechden

In Avue Technologies Corporation v. Secretary of Health and Human Services, Administrator of the General Services Administration (Case No. 22-1784), the United States Court of Appeals for the Federal Circuit vacated the Civilian Board of Contract Appeals' (CBCA) dismissal of a software developer's claim for lack of jurisdiction on the basis that the software license, standing alone, was not a procurement contract for purposes of the Contract Disputes Act (CDA). The Court found that Avue Technologies Corporation (Avue) non-frivolously pleaded the existence of a procurement contract, and that the question of whether such a contract actually existed was a merits issue not appropriately resolved on a motion to dismiss. The Court's decision establishes that companies that indirectly license their software to the Federal government through third-party authorized resellers will not be jurisdictionally barred from trying to enforce their license agreements against the Government under the CDA as long as they can plausibly allege the existence of a contract with the Government.

Avue is a software...