A motion to dismiss based on an
alleged lack of privity of contract with the
government was denied because a co-joint venturer
had standing to bring the appeal. The dispute arose
from a contract to provide food services at a
military base. The contract fell under the
requirements of the Randolph-Sheppard Act, which
applies a selection preference for qualified
nominees of State Licensing Agencies for the Blind
that represent clients seeking contracts for
military cafeteria-style food operations. Here, the
blind vendor represented by the SLA formed a joint
venture with the contractor that filed the appeal.
The government argued the appellant was a
subcontractor with whom the government did not have
a privity of contract. According to the government,
the appeal should have been brought "in
the name of the [SLA]."
In
Privity
However, the SLA's delegation of
contract rights to the joint venture included the
right to appeal, in the SLA's name, from Contracting
officer decisions made under the contract's Disputes
clause. Also, the government, the SLA, and the joint
venture entered a tripartite agreement that
identified the joint venture as the contracting
party with the government. The agreement
specifically stated the joint venture had the
authority to "appeal
in the name of the [SLA]." The
government then issued two modifications
implementing the agreement and expressly making the
joint venture a "contractor"
in privity with the government. Accordingly, the
appellant as a co-joint Venturer had the right to
bring the appeal on behalf of the joint venture. The
failure to reference the name of the joint venture
in the caption of the notice of appeal was not an
omission of jurisdictional significance, and the
board's failure to docket the appeals in the name of
the joint venture was a correctable administrative
action. ( Intermark Managed
Services, Inc., ASBCA, ¶93,525)
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