Thermalon Industries, Ltd. v. United States

40 Cont. Cas. Fed. 76,879, 34 Fed. Cl. 411, 1995 U.S. Claims LEXIS 211, 1995 WL 650677
CourtUnited States Court of Federal Claims
DecidedNovember 6, 1995
DocketNo. 94-1078C
StatusPublished
Cited by37 cases

This text of 40 Cont. Cas. Fed. 76,879 (Thermalon Industries, Ltd. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thermalon Industries, Ltd. v. United States, 40 Cont. Cas. Fed. 76,879, 34 Fed. Cl. 411, 1995 U.S. Claims LEXIS 211, 1995 WL 650677 (uscfc 1995).

Opinion

OPINION

ANDEWELT, Judge.

I.

In this government contract action, plaintiff, Thermalon Industries, Ltd., seeks breach of contract damages in the amount of $298,-792 in connection with its work under a research grant from the National Science Foundation (NSF). This action is before the court on defendant’s motion to dismiss the complaint pursuant to RCFC 12(b)(1) and 12(b)(4). Defendant contends that the grant in issue is properly characterized as an agreement intended to effectuate the sovereign obligations of the United States and that all such agreements necessarily fall outside the scope of this court’s jurisdiction under the Tucker Act, 28 U.S.C. § 1491(a). For the reasons set forth below, the court concludes that the instant grant agreement satisfies the criteria for an express or implied contract with the United States and, thus, falls within the scope of this court’s Tucker Act jurisdiction.

II.

In a July 15, 1986, “Program Solicitation for Small Business Innovation Research,” NSF invited “science-based” and “high-technology” small business firms to submit research proposals for funding by NSF. The solicitation stated that NSF would “support high-quality research proposals on important scientific or engineering problems and opportunities that could lead to a significant public benefit if the research is successful” (emphasis omitted).1 Plaintiff submitted a responsive project proposal covering research on “Lightweight, Non-Absorbent, Loose-Fill and Batting-Type Thermal Insulations for Cold Climate Clothing.” On September 6, 1988, NSF awarded a grant to plaintiff pursuant to NSF’s authority under the National Science Foundation Act of 1950, 42 U.S.C. § 1861 et seq., which authorizes NSF to promote scientific activities by entering “contracts or other arrangements,” 42 U.S.C. § 1870(c). NSF originally awarded plaintiff $135,323 but later amended that amount to a total of $205,205.

The original award states that the grant is subject to NSF’s published “Grant General Conditions,” as well as certain other terms and conditions specified in the award, which together describe the rights and obligations of both the grantee and NSF. Under these [414]*414terms and conditions, “[t]he grantee has full responsibility for the conduct of the project” and “[b]y acceptance of [the] grant ... agrees to comply with the applicable Federal [regulations].” The grantee, inter alia, must obtain prior written approval from NSF for certain activities and expenditures, may extend the expiration date of the grant under certain circumstances, and is expected to publish or otherwise make publicly available the results of its work under the grant. NSF in turn acquires, in addition to publication of the grantee’s research results, title to any equipment the grantee purchases with NSF grant funds and a royalty-free, irrevocable, world-wide license to use any intellectual property developed under the grant. Further, with respect to patents, NSF acquires title to a patent, rather than merely a license, inter alia, in the event the grantee fails to disclose within a reasonable time that the patented invention resulted from the grant. See 35 U.S.C. § 202(c)(1).

Paragraphs 11 and 12 of the “Grant General Conditions” cover the grantee’s receipt of payment from NSF. Paragraph 11 states, in part:

a. The allowability of costs and cost allocation methods for work performed under this grant, up to the amount specified in the grant, shall be determined in accordance with the applicable Federal cost principles in effect on the effective date of the grant and the terms of the grant.

Paragraph 12 states, in part:

a. Unless otherwise specified in the grant, the grantee shall receive payments under this grant through cash advance by U.S. Treasury check drawn in amounts necessary to meet current needs____ The grantee will arrange with the NSF Division of Financial Management for payment on a regular cycle or as required.

III.

Plaintiff commenced performance of the grant work and thereafter submitted invoices to NSF for payment. The NSF Office of Inspector General audited the-invoices and concluded that a substantial amount of the claimed costs were not allowable. After plaintiff had suspended all work on the project pending the final result of the Inspector General’s audit, NSF terminated the grant. Plaintiff sought review of the Inspector General’s findings within NSF, but NSF officials ultimately issued decisions rejecting plaintiffs claims for additional payment. Thereafter, plaintiff filed the instant complaint seeking a total of $298,792, which consists of $49,255 to cover the balance due under the grant, $99,537 to cover plaintiffs termination settlement costs, and $150,000 for consequential damages covering plaintiffs loss of a third-party investment.

IV.

The Tucker Act provides that the “Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States, founded ... upon any express or implied contract with the United States.” 28 U.S.C. § 1491(a)(1). The general requirements for a binding contract with the United States are identical for both express and implied contracts. Russell Corp. v. United States, 210 Ct.Cl. 596, 608-09, 537 F.2d 474, 482 (1976), cert. denied, 429 U.S. 1073, 97 S.Ct. 811, 50 L.Ed.2d 791 (1977). The party alleging a contract must show a mutual intent to contract including an offer, an acceptance, and consideration passing between the parties. Fincke v. United States, 230 Ct.Cl. 233, 244, 675 F.2d 289, 295 (1982). In addition, the party must demonstrate that the government representative who entered or ratified the agreement had authority to bind the United States in contract. City of El Centro v. United States, 922 F.2d 816, 820 (Fed.Cir.1990), cert. denied, 501 U.S. 1230, 111 S.Ct. 2851, 115 L.Ed.2d 1019 (1991).

The party initiating suit has the burden to demonstrate that this court possesses jurisdiction over its complaint. See, e.g., Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988). Based on the materials presented by the parties, the court concludes that plaintiff has demonstrated the presence of the required elements for a binding contract with the United States. Defendant does not contend that the government agents involved lacked contracting authority, and the material pre[415]*415sented by the parties reveals a mutual intent to contract, including an offer, an acceptance, and consideration.

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40 Cont. Cas. Fed. 76,879, 34 Fed. Cl. 411, 1995 U.S. Claims LEXIS 211, 1995 WL 650677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thermalon-industries-ltd-v-united-states-uscfc-1995.