Steve McBrady

In Appeal of Binghamton Simulator Co. (ASBCA, Aug. 21), the board held that it had no jurisdiction to hear a subcontractor’s appeal in which the prime contractor declined to sponsor the sub’s appeal. Despite the subcontractor’s argument that the terms of its subcontract required the prime contractor to sponsor the appeal, the board held that it had no jurisdiction to enforce the terms of a subcontract and noted that, under the CDA, only “rare, exceptional” circumstances can create either privity of contract between a subcontractor and the government or establish an other-than-privity basis for allowing the board to exercise jurisdiction, such as (i) where the prime acts as a “mere agent” of the government; (ii) where the terms of the prime contract permit direct subcontractor appeals; or (iii) where there is an implied-in-fact contract, none of which applied under the facts of this case.