Engage Learning, Inc. v. Ken Salazar, Secretary of the Interior

United States Court of Appeals
for the Federal Circuit
__________________________
ENGAGE LEARNING, INC.,
Appellant,
v.
KEN SALAZAR, SECRETARY OF THE INTERIOR,
Appellee.
__________________________
2011-1007
__________________________
Appeal from the Civilian Board of Contract Appeals in
no. 1165, Administrative Judge Catherine B. Hyatt.
____________________________
Decided: October 5, 2011
____________________________
ELLIS B. F REATMAN , III, Roberts & Freatman, of Ypsi-
lanti, Michigan, argued for appellant.
JANE W. VANNEMAN , Senior Trial Counsel, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
appellee. With her on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. D AVIDSON , Director,
and BRIAN M. SIMKIN , Assistant Director. Of counsel on
the brief were SARAH T. ZAFFINA and AARON S. LAX,
United States Department of Interior, of Washington, DC.
__________________________

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ENGAGE LEARNING v. INTERIOR 2
Before RADER , Chief Judge, and LOURIE and O’M ALLEY,
Circuit Judges.
O’M ALLEY, Circuit Judge.
Engage Learning, Inc. (“Engage”) appeals from a deci-
sion of the Civilian Board of Contract Appeals (“the
Board”) dismissing its appeal for lack of subject matter
jurisdiction. The Board held that it did not have jurisdic-
tion under the Contract Disputes Act of 1978 (“CDA”), 41
U.S.C. § 601 et seq., because Engage failed to establish
that it had a contract with the government for the unpaid
services. Engage Learning, Inc. v. Dep’t of the Interior,
CBCA 1165 (June 15, 2010) (“Board Op.”). Because we
conclude that the Board erred in dismissing the appeal on
jurisdictional grounds, but could have dismissed in part
for failure to state a claim upon which relief can be
granted, we affirm in part, vacate in part, and remand.
BACKGROUND
Engage provides professional training, curriculum de-
velopment, and technical assistance to schools, teachers,
and administrators. Since 2001, Engage has provided
these services to schools run by the Bureau of Indian
Affairs (“BIA”), United States Department of the Interior,
through the BIA’s Family and Child Education (“FACE”)
program. The BIA funds services for its FACE program
in two ways: (1) directly through BIA contracts, or pur-
chase orders, with a service provider; and (2) indirectly
through the distribution of funds under the No Child Left
Behind Act of 2001 (“NCLB Act”), 20 U.S.C. § 6301 et seq.,
to BIA schools, which in turn contract with a provider.
Engage seeks payment from the BIA for services provided
to BIA-operated schools during two time periods: (1)
October 1 through November 22, 2002; and (2) March 1-4
and April 5-7, 2004. According to Engage, it rendered
these services pursuant to an express or implied-in-fact

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ENGAGE LEARNING v. INTERIOR 3
contract with the BIA. With respect to the services per-
formed in 2004, Engage also alleges that those services
were covered by a contract with the principal of a BIA-run
school under the NCLB Act.
Regarding the 2002 time period, it is undisputed that
in August 2002 the BIA awarded contract SMK0E020259
(“PO 20259”) to Engage. Under the terms of this contract,
Engage was to provide (1) a five-day teacher training on
August 5-9, 2002; and (2) an unspecified number of site
visits to thirty-two BIA schools between August 12, 2002,
and June 30, 2003, to support implementation of the
FACE program. The total contract was for $66,480:
$30,480 for the teacher training and $36,000 for the site
visits. Lana Shaughnessy, Special Assistant to Keith
King, the Director of the Office of Indian Affairs (“OIA”),
requested the services included in PO 20259 on June 17,
2002, via requisition K00E20-2-270. The requisition was
also signed by Approval Official William Mehojah, Direc-
tor of the Office of Indian Education Programs. The
contract, dated August 8, 2002, was signed by Contracting
Officer (“CO”) Sonia Nelson.
PO 20259’s contract price of $66,480 was significantly
lower than what Engage originally proposed to the gov-
ernment. Earlier in the year, Engage had submitted a
contract proposal to the BIA for services to be performed
in 2002 and 2003 totaling $1,182,866, including $62,960
for two teacher trainings and $710,744 for four site visits
to thirty-two BIA-operated schools. Two amendments
were later made to requisition K00E20-2-27. The first
amendment, dated August 28, 2002, includes an addi-
tional teacher training and additional site visits as well as
two principal/administrator trainings and technology
support, for a total cost of $796,304. The second amend-
ment, dated October 8, 2002, includes additional site
visits for $118,539. Both amendments were requested by

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ENGAGE LEARNING v. INTERIOR 4
Shaughnessy and approved by Mehojah. No contracts
signed by a CO accompany these requisition amendments.
CO Nelson did sign one amendment to PO 20259 on
December 18, 2002. This amendment, however, makes
only an administrative change—a change to the account-
ing code—and specifically states that the “purchase order
amount is not effective [sic] by this amendment.” J.A. 95.
There is only one other contract in the record from the
2002 time period: PO 20395, dated September 16, 2002,
and signed by OIA Director and CO King. This contract
authorizes $31,480 for a five-day teacher training. Later,
in February 2003, King signed a contract with Engage for
over a million dollars in services to be provided through
December 31, 2003.
Overall, Engage claims to have provided $462,052.20
in services to BIA schools between September and De-
cember 2002, including the $66,480 paid by the BIA under
PO 20259. Shaughnessey sent much of the rest of the
remaining amount to the schools, which Engage then
billed directly. At dispute is the partial nonpayment for
services Engage provided to fourteen schools between
October 1 and November 22, 2002. Engage submitted
invoices for services totaling $118,054, of which the BIA
refused payment on $80,485 contained in eight invoices.
In May 2004, Engage again requested payment of the
outstanding $80,485 from King.
On July 28, 2004, King denied payment. In his letter,
addressed to Ms. Diana Johnston, President and CEO of
Engage, King states his determination that the “invoices
are in fact the result of an unauthorized commitment,
made by a Government employee who did not have the
authority to enter into an agreement on behalf of the
Government.” J.A. 101. King further states that he
notified Shaughnessy and Johnston “prior to the work
being performed which generated the above invoices, that

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ENGAGE LEARNING v. INTERIOR 5
there was not a contract in place for these services and
that, until a contract is in place, that these services
should not be provided.” J.A. 102. Shaughnessy disputes
King’s version of the facts. Specifically, she attests that,
during this period, she “was the contracting officer repre-
sentative” with “the authority to authorize and approve
work performed by Engage Learning, Inc.,” including “the
authority to direct the schools to contract for these ser-
vices and to bind the Government in that commitment.”
J.A. 898. Shaughnessy also attests that, during this
period, “King’s ability to perform his job was severely
hampered by extensive absenteeism from work.” Id.
Engage’s Vice President also contests King’s account.
According to Engage’s Vice President, “Keith King gave
verbal authority to conduct four site support visits each to
thirty-two different Indian schools during the 2002 to
2003 school year.”1 J.A. 893.
The reference in King’s letter to notifying Johnston is
the subject of a memorandum from King to Shaughnessy
dated October 4, 2002.2 In the memorandum, King states
that he and Johnston had talked that day about the
absence of a contract for upcoming training sessions and
site visits and that they had agreed that Engage would
not perform any services until a contract was in place.
Johnston denies that the October 4, 2002, conversation
with King, now deceased, took place. Rather, Johnston
claims that King did not instruct her to pause work until
1 At oral arguments, counsel for Engage indicated
that this verbal authority related to approximately
$35,000 worth of services. Oral Argument at 3:10-50,
available at http://www.cafc.uscourts.gov/oral-argument-
recordings/2010-1007/all.
2 This memorandum was not located in the contract
file. Rather, counsel for the government discovered the
memorandum in the files of the Office of the Inspector
General (“OIG”).

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ENGAGE LEARNING v. INTERIOR 6
December 2002, causing the company to halt all work
between December 30, 2002, and approximately February
14, 2003, when King signed a new contract.
In addition to the $80,485 in unpaid invoices from
2002, Engage also seeks payment for educational training
and support services provided to the Cottonwood Day
School in Chinle, Arizona, on March 1-4 and April 5-7,
2004. Engage provided these services at the request of
the school’s principal, Esther Frejo, via a 2004 FACE Site
Visit Planning Form, on which Frejo checked the box
indicating that she “would like to contract” for two site
visits between January and May of 2004. J.A. 829.
Following the site visits in March and April, Engage
submitted invoices for $11,500 to the BIA. Engage alleges
that it had a contract with the school’s principal pursuant
to the NCLB Act, under which the supervisor of a BIA-
operated school can secure services without competitive
bidding if:
(i) the cost for any single item acquired
does not exceed $15,000; (ii) the school
board approves the acquisition; (iii) the
supervisor certifies that the cost is fair
and reasonable; (iv) the documents relat-
ing to the acquisition executed by the su-
pervisor of the school or other school staff
cite this paragraph as authority for the
acquisition; and (v) the acquisition trans-
action is documented in a journal main-
tained at the school that clearly identifies
when the transaction occurred, the item
that was acquired and from whom, the
price paid, the quantities acquired, and
any other information the supervisor or
the school board considers to be relevant.

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ENGAGE LEARNING v. INTERIOR 7
25 U.S.C. § 2010(a)(3)(A).
On November 28, 2007, Engage submitted a claim
under the CDA for $91,895 in unpaid services. The BIA,
on March 5, 2008, relied on King’s July 28, 2004, letter to
deny Engage’s claim. Engage filed a timely appeal with
the Board in April 2008. At the Board, the government
moved to dismiss Engage’s complaint for lack of subject
matter jurisdiction or for failure to state a claim under
Board Rule 8(c)(1) or, alternatively, for summary relief
(analogous to summary judgment) under Board Rule
8(c)(3).
On June 15, 2010, the Board granted the govern-
ment’s motion to dismiss for lack of subject matter juris-
diction, holding that it did not have jurisdiction under the
CDA because Engage had failed to show that it had either
an express or an implied-in-fact contract with the gov-
ernment. Board Op., at 7. The Board first determined
that there was no express contract for unpaid services at
issue because PO 20259 was the only express contract
during the 2002 time period and it did not include these
services. Id. at 8. The Board rejected Engage’s argument
that the two amendments to K00E20-2-27 modified PO
20259 to include the additional work, concluding instead
that the amendments did not rise to the level of an ex-
press contract because they appeared to be only requisi-
tions and they were not signed by a CO. Id. at 9. The
Board also noted that PO 20259 could not have been
amended to add the additional services because the cost
total would have exceeded the PO’s $100,000 limit estab-
lished by the Federal Acquisition Regulations. Id.
Turning to the question of whether Engage estab-
lished the existence of an implied-in-fact contract, the
Board held that it did not. Id. at 9-10. Specifically, the
Board assumed, without deciding, that Engage had,

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ENGAGE LEARNING v. INTERIOR 8
through its dealings with Shaughnessy, alleged sufficient
facts to establish (1) mutuality of intent to contract, (2)
consideration, and (3) lack of ambiguity in offer and
acceptance. Id. at 10. The Board concluded, however,
that Engage had failed to show the fourth element—that
Shaughnessy had actual, not merely apparent, authority
to bind the government—because nothing in the record
corroborated her claim to be a CO representative with
such authority. Id. at 10-11. Rather, the Board contin-
ued, Shaughnessy’s then position and job title within the
BIA did not suggest that she would have had contracting
authority. Id. at 11. The Board also concluded that any
factual dispute regarding whether King had informed
Engage about the absence of a contract was irrelevant for
determining actual authority since a CO has no duty to
inform a contractor that planned work is unauthorized.
Id. at 11-12. Finally, the Board discounted any factual
dispute created by the affidavit of Engage’s Vice President
that King gave verbal authority for additional site visits.
The Board concluded that the sworn statement (1) lacked
expected context (i.e., when and to whom King made this
representation); (2) lacked corroboration by contempora-
neous documentation; (3) contradicted King’s July 28,
2004, letter and October 4, 2002, memorandum; and (4)
was not relied upon by Engage to support an implied-in-
fact contract in its opposition brief. Id. at 12.
Finally, the Board held that the NCLB Act did not au-
thorize the $11,500 worth of services provided by Engage
to the Cottonwood Day School. Id. at 12-13. The Board
determined that Engage’s documentation from the
school’s principal was not a contract, but merely an invi-
tation for further site visits. Id. at 12. The Board also
concluded that Engage had not alleged or produced any
evidence of the requisite conditions for contracting au-
thority under the Act, including, but not limited to, school

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ENGAGE LEARNING v. INTERIOR 9
board approval of the acquisition and certification by the
principal that the cost was fair and reasonable. Id. at 12-
13.
Engage timely appealed the Board’s dismissal to this
court. We have jurisdiction pursuant to 41 U.S.C.
§ 7107(a)(1)(A) (formerly 41 U.S.C. § 607(g)(1)(A)) and 28
U.S.C. § 1295(a)(10).3
D ISCUSSION
A. The Scope of the Board’s Jurisdiction
Section 7107(b) (formerly section 609(b)) of Title 41
dictates our standard of review:
(1) the decision of the agency board on a question
of law is not final or conclusive; but (2) the deci-
sion on of the agency board on a question of fact is
final and conclusive and may not be set aside
unless the decision is– (A) fraudulent, arbitrary,
or capricious; (B) so grossly erroneous as to neces-
sarily imply bad faith; or (C) not supported by
substantial evidence.
Because the question of the Board’s jurisdiction to hear
Engage’s claim under the CDA is an issue of law, “we
exercise independent review.” Do-Well Mach. Shop, Inc.
v. United States, 870 F.2d 637, 639 (Fed. Cir. 1989); see
also Emerald Maint., Inc. v. United States, 925 F.2d 1425,
1428 (Fed. Cir. 1991).
Engage argues that the Board improperly dismissed
its appeal for lack of jurisdiction. According to Engage,
the CDA grants the Board jurisdiction over appeals taken
3 Subsequent to the Board’s decision and some of
the briefing in this appeal, Title 41 was recodified pursu-
ant to Act of Jan. 4, 2011, Pub. Law 111-350, 124 Stat.
3677.

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ENGAGE LEARNING v. INTERIOR 10
“from a decision of a contracting officer of any executive
agency . . . relative to a contract made by that agency,”
and it is undisputed that both King’s July 28, 2004, letter
and the BIA’s March 5, 2008, letter were decisions of BIA
COs and that Engage had a contract with the BIA. Appel-
lant Br. 10 (quoting 41 U.S.C. § 607(d), now 41 U.S.C.
§ 7105(e)(1)(B)). The government disagrees, arguing that
the Board did not have jurisdiction because the CDA
applies only to “any express or implied contract” with an
executive agency, and the Board determined that no
express or implied contract existed between Engage and
the BIA for the services for which the company claims
payment. Appellee Br. 27-28 (citing 41 U.S.C. § 7102(a)).
We agree with Engage that the Board erred in holding
that it lacked subject matter jurisdiction over Engage’s
appeal. The Board read 41 U.S.C. § 602(a) (now codified
at 41 U.S.C. § 7102(a)), which limits the reach of the CDA
to “any express or implied contract . . . entered into by an
executive agency,” as requiring Engage to prove that it
had either an express or an implied-in-fact contract with
the BIA to establish the Board’s jurisdiction. Board Op.,
at 7-8. This analysis, however, runs contrary to our
interpretation of a similar provision in the Tucker Act,
which vests in the Court of Federal Claims “jurisdiction to
render judgment upon . . . any express or implied contract
with the United States . . . .” 28 U.S.C. § 1491(a)(1) (em-
phasis added). We have held that jurisdiction under this
provision requires no more than a non-frivolous allegation
of a contract with the government. See Lewis v. United
States, 70 F.3d 597, 602, 604 (Fed. Cir. 1995); Gould, Inc.
v. United States, 67 F.3d 925, 929-30 (Fed. Cir. 1995).
The Board’s analysis also ignores the CDA’s jurisdictional
statement in 41 U.S.C. § 7105(e)(1)(B), that “[t]he Civilian
Board has jurisdiction to decide any appeal from a deci-
sion of a contracting officer of any executive agency . . .

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ENGAGE LEARNING v. INTERIOR 11
relative to a contract made by that agency.” The govern-
ment does not dispute that Engage’s appeal to the Board
arose “from a decision of a contracting officer” of the BIA.
The question remaining, therefore, is whether the CO’s
decision was “relative to a contract made by that agency.”
We hold that it was; we hold that, as under the Tucker
Act, a plaintiff need only allege the existence of a contract
to establish the Board’s jurisdiction under the CDA “rela-
tive to” an express or implied contract with an executive
agency.
Courts frequently confuse or conflate the distinction
between subject matter jurisdiction and the essential
elements of a claim for relief. See, e.g., Arbaugh v. Y&H
Corp., 546 U.S. 500, 503, 511 (2006) (“On the subject-
matter jurisdiction/ingredient-of-claim-for-relief dichot-
omy, this Court and others have been less than meticu-
lous.”); Moden v. United States, 404 F.3d 1335, 1340 (Fed.
Cir. 2005). The Supreme Court’s decision in Bell v. Hood,
327 U.S. 678 (1946), is instructive. In Bell, the petitioners
brought suit against FBI officers for alleged violations of
their Constitutional rights under the Fourth and Fifth
Amendments. Id. at 679. The respondents defended the
district court’s dismissal for lack of federal subject matter
jurisdiction on the ground that, inter alia, the petitioners
could not recover damages based on their Constitutional
claims. Id. at 680-81. The Court disagreed and reversed
the dismissal, holding that the petitioners’ complaint
adequately stated a claim arising under the Constitution
of the United States and that “[j]urisdiction . . . is not
defeated as respondents seem to contend, by the possibil-
ity that the averments might fail to state a cause of action
on which petitioners could actually recover.” Id. at 682.
Rather, the Court continued, “it is well settled that the
failure to state a proper cause of action calls for a judg-
ment on the merits and not for a dismissal for want of

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ENGAGE LEARNING v. INTERIOR 12
jurisdiction.” Id.; see also MedImmune, Inc. v. Genentech,
Inc., 549 U.S. 118, 135-36 (2007).
This court followed the reasoning of Bell in Gould, 67
F.3d at 929-30, and Lewis, 70 F.3d at 602, 604. In Gould,
a contractor appealed a CO’s adverse decision to the
Court of Federal Claims under the CDA. 67 F.3d at 927-
28. The Court of Federal Claims dismissed on jurisdic-
tional grounds, holding that the contractor’s allegation
that its procurement contract with the Navy was void for
illegality divested the court of Tucker Act jurisdiction for
want of a contract. Id. at 928. We disagreed and held
that alleging a contract with the government suffices to
trigger the Tucker Act’s grant of jurisdiction “upon any
express or implied contract with the United States,” and
that the proper basis for a dismissal, if warranted, was
the failure to state a claim upon which relief can be
granted. Id. at 929-30. Similarly, in Lewis, we held that,
when the Court of Federal Claims determines that the
plaintiff has failed as a matter of law to establish the
existence of an alleged contract with the government, the
proper disposition is to dismiss for failure to state a claim,
rather than for lack of jurisdiction.4 70 F.3d at 602, 604;
see also Do-Well Mach., 870 F.2d at 639-40 (holding that a
valid affirmative defense—that the contractor’s claim is
time barred—did not divest the Armed Services Board of
Contract Appeals of jurisdiction, although it may give rise
to a successful motion for summary judgment or dismissal
4 In contrast, we have held that, for Tucker Act ju-
risdiction “the determination of whether a claim’s source
is money-mandating ‘shall be determinative both as to the
question of the court’s jurisdiction and thereafter as to the
question of whether, on the merits, plaintiff has a money-
mandating source on which to base his cause of action.’”
Moden, 404 F.3d at 1341 (quoting Fisher v. United States,
402 F.3d 1167, 1173 (Fed. Cir. 2005)).

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ENGAGE LEARNING v. INTERIOR 13
for failure to state a claim). More broadly we have ex-
plained:
To the extent a successful claim against
the government requires compliance with
all statutory elements of the claim, failure
of proof of an element of the cause of ac-
tion means the petitioner is not entitled to
the relief he seeks. To conclude in such a
case that the petitioner loses because the
forum is “without jurisdiction” is to ob-
scure the nature of the defect. It would be
more accurate to conclude that the peti-
tioner has failed to prove the necessary
elements of a cause for which relief could
be granted.
Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 687 (Fed.
Cir. 1992).
B. Claims Relating to Site Visits Between
2002 and 2004
Applying the reasoning set forth above to section
7105(e)(1)(B) of the CDA, Engage’s allegations of a con-
tract, either express or implied-in-fact, with the BIA for
services rendered in 2002 and 2004 suffice to establish the
Board’s jurisdiction “relative to a contract” with the BIA.
In this case, it is undisputed that Engage had an express
contract with the BIA, PO 020259, which included
$36,000 for site visits to BIA schools. In its appeal, En-
gage sought $80,485 for additional site visits in 2002,
claiming entitlement under PO 020259, as modified by
amendments to requisition K00E20-2-27, as one of its
theories of recovery. Accordingly, Engage’s appeal to the
Board on this claim undoubtedly met the jurisdictional
requirements of section 607(d): Engage’s appeal was
taken from a decision of a BIA CO denying payment

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ENGAGE LEARNING v. INTERIOR 14
under PO 020259, a contract made by the BIA. The
determination of whether PO 020259 was in fact modified
to include the unpaid services is not jurisdictional; it is a
decision on the merits. See Bell, 327 U.S. at 682.
Engage also triggered the Board’s jurisdiction by
claiming a right to payment of the $80,485 relating to site
visits based on its assertion of an implied-in-fact contract
with the BIA. As under the Tucker Act, the Board’s
jurisdiction under the CDA does not depend on the undis-
puted existence of a contract between a provider and an
agency. Rather, a claim that an individual or a company
has a contract with an executive agency meets the juris-
dictional requirement that a CO’s decision denying pay-
ment under the alleged contract is “relative to a contract”
with that agency. 41 U.S.C. § 7105(e)(1)(B). As with a
dispute over the scope of an acknowledged contract, the
determination of whether or not a contract in fact exists is
not jurisdictional; it is a decision on the merits. See Bell,
327 U.S. at 682. Consequently, the Board erred in requir-
ing Engage to prove, at this juncture, the existence of a
contract.
Mastering the distinction between a dismissal for lack
of jurisdiction and a dismissal on the merits “is not
merely an intellectual exercise without practical utility.”
Do-Well Mach., 870 F.2d at 640. First, a dismissal on the
merits usually carries res judicata effect whereas a dis-
missal for lack of jurisdiction typically does not. See id.
(citing Vink v. Hendrikus Johannes Schijf, Rolkan N.V.,
839 F.2d 676, 677 (Fed. Cir. 1988)). Under the CDA, a
contractor may appeal the decision of a CO to the Board
or to the Court of Federal Claims. 41 U.S.C. § 7104(b)(1).
Thus, to avoid the risk of revisiting this case in the Court
of Federal Claims, the government must procure a judg-
ment from the Board on the merits. See Do-Well Mach.,
870 F.2d at 640.

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ENGAGE LEARNING v. INTERIOR 15
Second, a court’s characterization of a decision as ju-
risdictional rather than as on the merits affects its treat-
ment of disputed facts. In deciding a motion to dismiss
for failure to state a claim, the trial court must accept as
true the factual allegations in the complaint. See Hughes
v. Rowe, 449 U.S. 5, 10 (1980); Cedars-Sinai Med. Ctr. v.
Watkins, 11 F.3d 1573, 1584 n.13 (Fed. Cir. 1993). And,
at the summary judgment stage, the court must identify
but may not decide factual disputes; at this stage, the
court’s function is not to make credibility determinations
and weigh the evidence so as to determine the truth, but
rather to determine whether a genuine factual dispute
exists for trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249, 255 (1986). In contrast to a motion to dismiss
for failure to state a claim, in deciding a motion to dismiss
for lack of subject matter jurisdiction, the court accepts as
true only uncontroverted factual allegations in the com-
plaint. Cedars-Sinai, 11 F.3d at 1583-84. And, unlike at
summary judgment, disputed facts outside the pleadings
are subject to the fact finding of the court. Id.; see also
Arbaugh, 546 U.S. at 514.
Thus, by characterizing the question of whether a
contract exists as a jurisdictional one, the Board permit-
ted itself to resolve, rather than merely identify, genuine
issues of disputed fact underlying Engage’s contract
claim. See Board Op., at 7. Specifically, the Board dis-
counted as not credible the testimony of Engage’s Vice
President that King verbally authorized Engage to con-
duct four site visits to thirty-two Indian schools during
the 2002-2003 school year. Id. at 12. The Board also
discounted as uncorroborated Shaughnessy’s testimony
that she was a CO representative with authority to au-
thorize the work performed by Engage. Id. at 11. On the
current record, these sworn statements raise genuine
issues of material fact regarding the existence of a con-

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ENGAGE LEARNING v. INTERIOR 16
tract for the site visits performed by Engage, precluding
affirmance based on the government’s alternative motion
for summary judgment.
It appears, moreover, that questions regarding the
propriety of further discovery and the admissibility of
certain evidence remain. The current record includes
King’s October 4, 2002, memorandum from the OIG’s file,
even though Engage’s attorney has been denied access to
this file. Engage alleges that this memorandum is both
inadmissible and unreliable, but the Board did not ad-
dress this issue.
For these reasons, we vacate the Board’s dismissal on
jurisdictional grounds and remand this portion of En-
gage’s appeal for further proceedings on the merits consis-
tent with this opinion.
C. The Claim Relating to Services to Cotton-
wood Day School in 2004
With regard to Engage’s theory that the NCLB Act
authorized $11,500 in services provided to the Cotton-
wood Day School in 2004, we find that the Board erred in
dismissing this claim on jurisdictional grounds, but affirm
based on the government’s alternative motion to dismiss
for failure to state a claim. See Adair v. United States,
497 F.3d 1244, 1251 (Fed. Cir. 2007) (affirming the dis-
missal on the alternative ground of failure to state a
claim) (“That the Court of Federal Claims based its dis-
missal on lack of subject matter jurisdiction, however, is
not fatal to the judgment of dismissal.”).
On the jurisdictional issue, Engage asserted that
these services were rendered pursuant to a contract
authorized under the NCLB Act and points to a request
executed by a qualified “supervisor” under the Act. As
with regard to its other claims, because these allegations

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ENGAGE LEARNING v. INTERIOR 17
are non-frivolous assertions of the existence of a contract
under the Act, the Board may not decline to consider
them on jurisdictional grounds. Once it exercises jurisdic-
tion, however, the Board may assess—without resolving
any factual disputes—whether the claim is one upon
which it can grant relief. See id. Contracting authority
under the NCLB Act requires that five conditions be
satisfied. See supra. As the Board found, however, En-
gage failed to allege at least two of the five requisite
conditions: that the school board approved the acquisition
or that the principal certified that the cost was fair and
reasonable. Board Op., at 12-13. Engage does not contest
the absence of these conditions on appeal. Accordingly,
we affirm the Board’s dismissal of Engage’s NCLB Act
claim.
CONCLUSION
For the foregoing reasons, the Board’s decision dis-
missing Engage’s appeal is affirmed in part, vacated in
part, and remanded for further proceedings consistent
with this opinion.
AFFIRMED IN PART, VACATED IN PART, and
REMANDED

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