Before Archer, Mayer, and Michel, Circuit Judges.
Timothy A. Janowsky and Peggy J. Janowsky (collectively Janowsky) appeal the Opinion and Order of the United States Claims Court*fn1 dismissing an implied-in-fact contract claim (count I) for lack of jurisdiction and dismissing a Fifth Amendment takings claim (count II) for failure to state a claim upon which relief can be granted. Janowsky v. United States, 23 Cl. Ct. 706 (1991). We reverse-in-part, vacate-in-part and remand.
Janowsky was recruited by Special Agents of the Federal Bureau of Investigation to assist the FBI in infiltrating corrupt police and organized crime activities by allowing his business, "Geno's Vending," to be used as a front for the purchase and distribution of illicit gambling equipment.*fn2 Janowsky agreed to engage in gambling and other activities as directed by the FBI and to record his conversations with, and testify against, targets of the investigation. In return, the FBI agreed to assist in the sale of the business at the end of the investigation or to purchase that business. According to the complaint, the FBI controlled the business for over three years during which time it could not be operated at a profit and its value was permanently reduced. Furthermore, Janowsky purchased gambling equipment and made other expenditures at the FBI's direction. The FBI denies the existence of a contract and has made no payment to Janowsky.
Janowsky filed the instant action*fn3 seeking $643,200 for breach of an implied-in-fact contract (count I) or, in the alternative, $400,000 for the taking of property without just compensation (count II). The government moved to dismiss both counts for failure to state a claim upon which relief can be granted. The court raised sua sponte the jurisdictional question whether the alleged contract between Janowsky and the FBI fell within the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 601-613 (1988), and determined that resolution of that issue was required because Janowsky had not filed a certified claim with the agency contracting officer. The Claims Court concluded that the alleged contract was covered by the CDA and dismissed count I for lack of jurisdiction. Regarding count II, the court determined that Janowsky voluntarily allowed the government to use his property and because "there is never a taking of private property" under these circumstances, dismissed that count for failure to state a claim upon which relief can be granted. This appeal followed.
The first issue is whether Janowsky's alleged agreement with the FBI was subject to the certification requirements of the CDA, 41 U.S.C. § 605(c)(1), making it necessary for him to have filed a certified claim prior to commencing this suit. See United States v. Grumman Aerospace Corp., 927 F.2d 575 (Fed. Cir. 1991) (The certification requirement of the CDA "is a jurisdictional prerequisite that must be satisfied by the contractor before it may appeal the contracting officer's claim denial.").
The CDA applies to "any express or implied contract . . . entered into by an executive agency for (1) the procurement of property. . . . [or] (2) the procurement of services. . . ." 41 U.S.C. § 602(a). Whether the alleged agreement constitutes a contract for the procurement of property or services within the meaning of the CDA is a question of law which this court reviews de novo. Institut Pasteur v. United States, 814 F.2d 624, 626 (Fed. Cir. 1987).
According to the Claims Court, "Section 602(a) [of the CDA] is unambiguous, Coastal Corp. v. United States, 713 F.2d 728, 730 (Fed. Cir. 1983), and it encompasses count I of [Janowsky's] complaint." When discussing the applicability of the CDA, this court has acknowledged the clarity of the CDA, but has said that statutory interpretation may nevertheless be necessary to "do Justice to the realities of the situation." Institut Pasteur, 814 F.2d at 627 (quoting Texas State Comm'n for the Blind v. United States, 796 F.2d 400, 406 (Fed. Cir. 1986)). This court has further noted that the legislative history and policy considerations underlying the enactment of the CDA are useful in determining whether Congress intended that an agreement fall within its ambit. Id.
Janowsky argued below that the policy goals of the CDA were not served by his agreement with the FBI to act as an informant and, thus, his agreement should not be subject to the CDA. The court dismissed Janowsky's arguments. Instead it relied solely on the plain language of section 602 that the CDA covered "implied contracts." The real issue in this case, however, is not whether the CDA covers implied contracts, which it does, but whether the alleged contract is for procurement of property or services within the contemplation of the CDA.
The government has stated in its brief to this court that the underlying policy considerations of the CDA have "no application to typical informant arrangements" (emphasis added); that "it is improbable that the drafters of the CDA contemplated imposing cost and competition restrictions with respect to information sought from informants"; and that "informant ...