Board of Contract Appeals General Services Administration Washington, D.C. 20405 ______________________________________ DISMISSED WITH PREJUDICE: July 9, 1998 ______________________________________ GSBCA 13931-TD AT&T CORP., through its subsidiary NCR CORPORATION, Appellant, v. DEPARTMENT OF THE TREASURY, Respondent. Carl J. Peckinpaugh and Eric J. Marcotte of Winston & Strawn, Washington, DC; Wendy T. Kirby of NCR Corporation, Rockville, MD; and Edward Gallagher of NCR Corporation, Dayton, OH, counsel for Appellant. Donald M. Suica, Duane L. Zezula and Mark A. Allen, General Legal Services, Internal Revenue Service, Department of the Treasury, Washington, DC, counsel for Respondent. Before Board Judges BORWICK, NEILL, and HYATT. NEILL, Board Judge. ORDER On May 20, 1998, the Internal Revenue Service (IRS), an organizational component of the Department of the Treasury, respondent in this case, moved that we dismiss this appeal. In bringing the motion, IRS advised the Board that it had worked out an agreement with a non-party IRS prime contractor regarding the acquisition of products from the Oracle Corporation (Oracle). As a result of this agreement, the contracting officer withdrew his decision of July 30, 1996, which is the basis of this appeal. In that decision, the contracting officer had asserted a claim against appellant for $4,995,906. This amount was said to represent the monetary value of a credit due the IRS under the expiration provisions of the contract's enterprise license. According to IRS, the withdrawal of this decision and the claim it asserted effectively rendered this appeal moot. Upon receipt of respondent's motion to dismiss, appellant, through its subsidiary NCR Corporation, informed the Board that it was unaware of the alleged agreement between respondent and the non-party IRS contractor until it was served with a copy of respondent's motion to dismiss. Appellant further explained that, because this was a sponsored appeal filed on behalf of its subcontractor, Oracle, it should have been involved in the settlement or resolution of the appeal. Appellant, therefore, urged the Board to make a "searching inquiry" into the basis of this agreement since this "could serve the salutary public purpose of determining whether the breach of a public contract is about to occur, and avoid enmeshing the parties in still further claims, protests, or other litigation." After review of the written submissions of the parties, the Board convened a telephonic conference with counsel for the parties. The purpose of the conference was to determine if appellant actually opposed the motion to dismiss. At that time, counsel for appellant[foot #] 1 advised the Board that they were unable to take a position on the motion since they knew nothing of the terms of the agreement which led to the withdrawal of the contracting officer's decision. The Board, therefore, deferred ruling on the motion and urged the parties to confer over the next thirty days on the nature of the agreement so that appellant, at the close of that period, could advise the Board, in an informed fashion, of its position regarding the pending motion. On June 22, appellant filed its comments on respondent's motion to dismiss. Appellant included in its submission copies of recent correspondence between itself and IRS. This included two letters from appellant which posed specific questions regarding the agreement which prompted the motion to dismiss and two replies from IRS which addressed the questions raised by appellant. Appellant contended that these letters from IRS failed to provide basic information on the business arrangements in question and likewise failed to provide any of the requested documentation. Appellant asked, therefore, that we delay ruling on the pending motion to dismiss for an additional twenty-day period and that we direct IRS, in the meantime, to: (1) provide a copy of the delivery order pursuant to which IRS has ordered a network license for Oracle products under the contract with the non-party IRS prime contractor, (2) provide information on how maintenance will be provided for this network license if not apparent from the face of the delivery order, and (3) provide copies of documents comprising the agreement underlying the ----------- FOOTNOTE BEGINS --------- [foot #] 1 Namely, house counsel for NCR, who had previously entered appearances in this case on behalf of appellant. Outside counsel, who had heretofore also figured in this case as counsel for appellant, advised the Board at the start of this conference that they, in fact, actually represented Oracle in this sponsored appeal. ----------- FOOTNOTE ENDS ----------- motion to dismiss as well as any correspondence or other documents between IRS, the third-party prime contractor, and Oracle regarding the agreement. On the specific issue of whether this case should be dismissed, appellant stated only that it was opposed to any dismissal unless it is with prejudice to the Government's ability to assert any future claim under the Treasury Multiuser Acquisition Contract relating to the enterprise license or its expiration. By order dated June 23, we granted a request from counsel for IRS for leave to comment on appellant's submission. IRS continues to contend that this case is moot and assures us that it does not wish to relitigate any of the issues that gave rise to this appeal. IRS also notes that appellant, in commenting on the motion to dismiss, seeks no relief from the Board other than information which would allow the appellant to better assess the implication of the agreement which led to the motion to dismiss. Discussion Despite respondent's assurances, we are not convinced on the basis of the record as it currently stands that this case is moot. A case is deemed to be moot when an event occurs which makes it impossible for the court to grant any effectual relief whatever to a prevailing party. Church of Scientology of California v. United States, 506 U.S. 9, 12 (1992). Without more information regarding the nature and particulars of the agreement which prompted withdrawal of the contracting officer's decision, we are unable to state with certainty that the issues raised in this dispute are actually now moot and that there is, therefore, no prospect for relief of any sort for appellant. Granted, the contracting officer has now withdrawn the decision in which he initially asserted a claim of $4,995,906 against appellant. Nevertheless, this act, in and of itself, does not necessarily deprive us of our jurisdiction. A contracting officer cannot by his or her unilateral action divest the Board of jurisdiction once that jurisdiction has vested with the filing of an appeal of that contracting officer's decision. See Triad Microsystems, Inc., ASBCA 48763, 96-1 BCA 28,078 (and cases cited therein). We see no reason, however, for this litigation to continue regardless of whether the issues raised in the case are now moot. As already noted, IRS assures us that it does not wish to relitigate any of the issues that gave rise to this appeal. For its part, appellant would have us continue the litigation not, however, for the sake of relief on the issues raised in this appeal. Rather, appellant would have us defer ruling on the motion so as to permit it to determine if the agreement which prompted the motion is, in fact, a breach of appellant's requirements contract with IRS. We can appreciate appellant's concern with the continued performance of its contract with IRS. This, however, is not a matter currently before us, and appellant is not entitled to use the present proceedings as a vehicle to conduct discovery on that matter. Appellant's continuing concerns for the future of its contract, therefore, cannot serve as a reasonable basis for denying respondent's motion. Having reviewed the recent correspondence between IRS and appellant, we find that IRS has made a good faith effort to address the questions posed by appellant. In the absence of any persuasive argument from appellant in opposition to the motion to dismiss, therefore, we are prepared to grant respondent's motion. In accordance with Rule 128(a), since IRS has not requested that the dismissal be without prejudice, our dismissal will be with prejudice. The effect of this dismissal will not, of course, be as broad as appellant would wish. This case cannot be dismissed with prejudice to the Government's ability to assert any future claim under the Treasury Multiuser Acquisition Contract which, like the claim in this appeal, may concern the Enterprise License provisions of the contract. Rather, we dismiss with prejudice this appeal which concerns one specific Government claim. Decision For the reasons set out above, this appeal is DISMISSED WITH PREJUDICE. _____________________ EDWIN B. NEILL Board Judge We concur: ______________________ _____________________ ANTHONY S. BORWICK CATHERINE B. HYATT Board Judge Board Judge