Echelon Services, LLC v. United States

In the United States Court of Federal Claims No. 23-31 (Filed: 24 August 2026) * ************************************** ECHELON SERVICES, LLC, * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant. * * ************************************** Shomari B. Wade, with whom were Michael J. Gardner, Timothy M. McLister, Christopher M. O’Brien, Jordan N. Malone, Olivia Bellini, all of Greenberg Traurig, of Washington, DC for plaintiff. John H. Roberson, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, with whom were Steven J. Gillingham, Assistant Director, Patricia M. McCarthy, Director, U.S. Department of Justice, of Washington, DC, and Jacqueline McCain, Chief, Business Law Division B, Army Material Command Legal Center, of Aberdeen Proving Ground, MD, with whom was Capt. Sana H. Daniell, Trial Attorney, Contract Litigation and Intellectual Property Division, of Fort Belvoir, VA, for the defendant. OPINION AND ORDER HOLTE, Judge. In 2021, the Army awarded a contract to plaintiff Echelon Services, LLC, to provide McAfee software licenses. Plaintiff received the contract under the 8(a) set-aside program because plaintiff is a Native Hawaiian Organization-owned company. Immediately after securing the contract, plaintiff contracted with other, non-Hawaiian companies to receive the contract payments and provide the software—plaintiff kept no benefit or obligation for itself except hundreds of thousands of dollars in what is essentially a finder’s fee. While the 8(a) program “provide[s] assistance exclusively for [economically and socially disadvantaged] small business concerns” by reserve contracting opportunities, plaintiff could not identify any work members of the disadvantaged businesses were doing, save passing the contract along and * This Opinion was originally filed under seal on 13 August 2026 pursuant to the protective order in this case. The Court provided the parties an opportunity to review this Opinion for proprietary, confidential, or other protected information and submit proposed redactions by 20 August 2026 at 12:00 p.m. On 24 August 2026, the parties confirmed they do not seek redaction of the Opinion. The Opinion is now reissued for publication. taking a cut off the top. 1 The Army’s contract with plaintiff was structured with an initial year, which was heavily discounted to accommodate an Army budget shortfall, and several option years whose price would gradually increase to offset the discount. The Army incorporated into the contract promises the software was essential and it would only decline an option year if it lacked funds to do so. After the first year, however, the Army declined to exercise any of the option years and plaintiff sued in this court for breach of contract. After two years of attempted Alternative Dispute Resolution, the government filed a Motion for Summary Judgment arguing plaintiff assigned away its right to sue for the remaining payments on the contract in violation of the Anti-Assignment Acts, thus plaintiff has no damages to sue for. For the following reasons, the Court GRANTS in PART and DENIES in PART the government’s Motion for Summary Judgment. I. Background A. Factual History 2 On 24 July 2020, before the contract with the government in this case, plaintiff Echelon entered into a Master Purchase Agreement with ePlus Government, Inc. (“ePlus”). Gov’t’s Mot. for Summ. J. (“MSJ”) at 6, ECF No. 36. Under the Master Purchase Agreement, plaintiff agreed to transfer its “rights, title[,] and interest in any [f]ederal contract delivery order payments to ePlus,” and became obligated to cooperate with ePlus in any potential lawsuit against the United States. Id. at 6, 8. When plaintiff agreed to the Master Purchase Agreement, it “agree[d] to sponsor a suit as needed in its name” and under the direction of ePlus. Id. On 25 February 2021, the Army awarded a contract to plaintiff to provide McAfee software licenses and maintenance. Pl.’s Resp. in Opp. to Gov’t’s MSJ (“Pl.’s Resp.”) at 4–5, ECF No. 38. “The award was a direct 8(a) small business set-aside award to Echelon as the prime contractor.” Id. at 5 (citing Compl., Ex. A (Echelon-Army Contract)). The Army contract included one base year of performance, priced at $2.5 Million, then up to four option years with steady increases in price. Compl., Ex. A at 4 (Echelon-Army Contract). This arrangement offered the Army up-front cost savings on the initial years, with plaintiff able to make profit on the arrangement by seeking multi-year pricing from McAffee and reaping increased revenues in the later years. The Army also incorporated into the contract plaintiff’s “Payment Terms,” which warranted the software was both essential to its operations for the whole term of option years and the Army would only decline to exercise the options if it lacked appropriations to do so. See Compl., Ex. A at 25–26 (Echelon-Army Contract). After securing the contract, plaintiff assigned the payments from the contract to Wilmington Trust on 2 March 2021, and Wilmington Trust served the Army with a notice of the assignment and a copy of the assignment agreement. See Gov’t’s MSJ, Ex. 9 (Notice of 1 15 U.S.C. § 636(j)(10) (bracketed material quoting from 15 U.S.C. § 637(a) cross-reference); Tr. at 81:4–23. 2 All facts in this section are undisputed, unless stated otherwise. See RCFC 56(a) (requiring a movant for summary judgment to demonstrate “there is no genuine dispute as to any material fact”). The Court draws all inferences “in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986). -2- Assignment and copy of Instrument of Assignment to Wilmington Trust). Pursuant to the Master Purchase Agreement, plaintiff then transferred its right to the contract payments to ePlus in a separate agreement. See Gov’t’s MSJ, Ex. 3 at 1 (Schedule 2 Agreement between plaintiff and ePlus). The Schedule 2 Agreement incorporated the terms of the Master Purchase Agreement and plaintiff agreed to “assign[] and transfer[] to [ePlus] all of [plaintiff’s] rights and interest, but none of its obligations, in the [contract] payments” in return for a sum of money labeled the “Assignment Price.” See id. In addition, ePlus agreed to transfer another sum of money to Red River, a technology company engaging with McAfee to procure the software for the Army. Id. Plaintiff did not file a formal notice of the Schedule 2 agreement with the government. On 30 March 2026, ePlus signed an “Assignment Agreement” with Wells Fargo in which ePlus agreed to “sell, transfer, convey, and assign to [Wells Fargo] . . . all and every right, title and interest of [ePlus] . . . in and to” the contract between plaintiff and the government. Gov’t’s MSJ, Ex. 11 at 2 (Assignment Agreement between ePlus and Well Fargo). ePlus’s contract with Wells Fargo required ePlus to collect the amount due from the Army and deliver those payments to Wells Fargo. Id. Additionally, Wells Fargo gave up any right of indemnification against ePlus outside of ePlus’s own inaccurate representations or performance issues. Id. at 8. On 4 April 2021, the Army made the payment for the base year of the contract to Wilmington Trust. Gov’t’s MSJ, Ex. 14 (Plaintiff’s invoice to the Government for the first contract year). The next year, however, 1 February 2022, the contracting officer notified plaintiff the Army would not be renewing the option years of the contract because “McAfee was removed from the [Tactical Network Transport] software baselines.” Compl., Ex. C at 2 (Email on 1 February 2022 between Army Officers). On 5 May 2022, plaintiff submitted a certified claim and a request for Contracting Officer’s Final Decision under the Contracts Disputes Act claiming damages from “the Army’s Contract breach and failure to undertake its best efforts to obtain the necessary funding to exercise the Contract’s first option period and for failing to renew when the circumstances for non-renewal did not exist.” Compl., Ex. D. at 1 (Claim and Demand for Contracting Officer’s Final Decision). Plaintiff’s certified claim also stated it was bringing its claim to “protect the interests of ePlus . . . and Wilmington Trust.” Id. The Contracting Officer issued a final decision on 4 October 2022 denying plaintiff’s claim. Compl., Ex. J (Contracting Officer’s Final Decision). On 6 January 2023, plaintiff submitted a supplemental claim to the Army, claiming the Army had continued to download and use the McAfee software between December 2021 and June 2022, despite the base year of the contract concluding in December 2021 and the Army’s February 2022 decision not to execute the first option year. Compl., Ex. K at 6–7 (Supplemental Claim to the Contracting Officer). B. Procedural History On 9 January 2023, plaintiff filed its Complaint noting the action is brought “on behalf of itself as the prime contractor, and to protect the interests of ePlus Government, Inc. and Wilmington Trust.” See Compl. ¶ 1. After the government filed an answer on 23 June 2023, -3- the parties jointly moved on 8 August 2023 to stay this case “pending an informal exchange of documents and evaluation of such productions by the parties.” Joint Mot. to Stay at 1, ECF No. 10. The parties pursued settlement or Alternative Dispute Resolution avenues until 29 May 2025, when the parties filed a Joint Status Report (“JSR”) concluding “judicial resolution of this matter is likely to be necessary.” 29 May 2025 JSR at 1, ECF No. 26. On 5 June 2025 plaintiff filed a Motion for Leave to File a Motion to Compel Arbitration, ECF No. 27. The Court terminated the stay in this case, stayed any briefing on plaintiff’s arbitration motion, and scheduled summary judgment briefing on 9 June 2025. The government moved for summary judgment on 9 July 2025. Gov’t’s MSJ at 1, ECF No. 36. On 6 August 2025, plaintiff filed a response to the government’s Motion for Summary Judgment. See Pl.’s Resp, ECF No. 38. The government filed its reply on 20 August 2025. See Govt.’s Reply in Supp. of its Mot. for Summ. J. (“Gov’t’s Reply”), ECF No. 39. The Court held oral argument on the government’s Motion on 11 February 2026. See 15 December 2025 Order Setting Oral Argument, ECF No. 43. II. Parties’ Arguments The government first argues plaintiff’s agreement with ePlus is an assignment which failed to comply with the requirements of the Anti-Assignment Acts, 37 U.S.C. § 3727 and 41 U.S.C. § 6305. Gov’t’s MSJ at 23. The government asserts the agreement with ePlus assigns away plaintiff’s right to the contract payments, but plaintiff had already assigned those rights to Wilmington Trust and failed to notify the government of the assignment to ePlus, each of which independently violates the Anti-Assignment Acts. Id. The government goes on to state an assignment in violation of these acts is rendered “null and void as against the United States as a matter of law.” Id. at 24. As a result, the government argues plaintiff cannot state a claim for damages related to the government’s alleged breach because it assigned away any interest in the remaining contract payments it now seeks. Id. at 25. The government agrees plaintiff did not forfeit its own right to bring a breach of contract claim for damages it suffered from the government’s alleged breach; rather, it argues plaintiff may only recover damages plaintiff suffered. Id. at 26. The government argues plaintiff’s damages are zero because plaintiff was “paid in full through its sale and assignment of all of its payment and claim rights [] and thus ha[s] no damages to assert itself.” Id. at 30. Plaintiff argues in response it fully complied with the Anti-Assignment Acts because the government agrees the assignment to Wilmington Trust is valid and the Acts permit one assignee to act “as agent or trustee for more than one party participating in the financing.” Pl.’s Resp. at 16–17. Plaintiff asserts the government is not entitled to “the specific details of a private financing arrangement” under the Anti-Assignment Acts, so it was not a violation for plaintiff to make additional arrangements with financiers other than Wilmington Trust and plaintiff can still sue for the contract payments which would have come absent the government’s breach. Id. at 11. Additionally, plaintiff argues the government has failed to show plaintiff “has been absolved of all responsibility or liability through its agreement with ePlus,” and thus the government cannot seek dismissal of a pass-through claim by plaintiff. Id. at 17. Finally, plaintiff argues the government waived any defense related to the Anti-Assignment Acts by failing to raise those defenses in its answer in 2023, and plaintiff has -4- been prejudiced by the lack of notice the government intended to raise this defense. Id. at 19–21. In reply, the government argued it met its burden on summary judgment to demonstrate plaintiff faces no liability to a third party, and it becomes plaintiff’s burden to show “specific facts” proving it faces liability which could be the basis of a pass-through claim. Gov’t’s Reply at 11. The government further asserts plaintiff does not dispute it attempted to assign the same rights under the contract to multiple parties, and argues this is a clear violation of the Anti-Assignment Acts even if one assignee is permitted to act as a paying agent for multiple parties. Id. at 6–7. The government thus repeats its assertion plaintiff has sold away any rights to demand the remaining contract payments to parties who, holding invalid assignments, lack privity with the government. Id. at 5. Finally, the government argues it was not on notice the Anti-Assignment Act defenses would be relevant until after engaging with plaintiff following its answer, and in any event plaintiff has suffered no prejudice from the government’s raising of this defense. Id. at 18. III. Applicable Law A. Standard of Review for Motion for Summary Judgment “Summary judgment is proper ‘if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Plastipak Packaging, Inc. v. Premium Waters, Inc., 55 F.4th 1332, 1339 (Fed. Cir. 2022) (quoting Austin v. Walgreen Co., 885 F.3d 1085, 1087 (7th Cir. 2018) (internal citation omitted)). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). In evaluating summary judgment motions, courts must “[view the evidence] in a light favorable to the non-movant and all justifiable inferences are to be drawn in its favor.” Lloyd’s Food Prods., Inc. v. Eli’s, Inc., 987 F.2d 766, 767 (Fed. Cir. 1993) (citing Anderson, 477 U.S. at 255). B. The Anti-Assignment Acts Two statutes—collectively referred to as the “Anti-Assignment Acts” 3—operate in partnership with one another to “invalidate assignments of government contracts unless specific conditions are met.” Ham Investments, LLC v. United States, 388 Fed. App’x 958, 960 (Fed. Cir. 2010) (citing Tuftco Corp. v. United States, 222 Ct. Cl. 277, 284–285 (1980)). First, 41 U.S.C. § 6305—titled “Prohibition on transfer of contract and certain allowable assignments”—generally prohibits the “transfer [of a] contract or order, or any interest in the contract or order, to another party,” then provides for a limited exception if strict requirements 3 In the interest of clarity and consistency, the Court refers to 41 U.S.C. § 6305 and 37 U.S.C. § 3727 collectively as the “Anti-Assignment Acts” in the same manner as the Federal Circuit in Ham Investments, LLC v. United States. See 388 Fed. App’x 958, 960 (Fed. Cir. 2010) (“The United States Court of Federal Claims granted the United States’ motion for summary judgment on the grounds that 31 U.S.C. § 3727 and 41 U.S.C. § 15 (collectively, the ‘Anti–Assignment Acts’) invalidated the assignment that HAM Investments, LLC alleged entitled it to payment, and the Government did not waive the requirements of the Anti–Assignment Acts.”) (cleaned up). -5- are met. These requirements include: (1) “amounts due from the Federal Government under a contract may be assigned to a bank, trust company, Federal lending agency, or other financing institution”; (2) the contract must “total at least $1,000”; (3) the contract does not forbid assignment; (4) the assignment covers the full amount due; (5) the assignment is not “made to more than one party or be subject to further assignment, except that assignment may be made to one party as agent or trustee for 2 or more parties participating in the financing”; and (6) “the assignee of an assignment under this subsection shall file written notice of the assignment” with the government. 41 U.S.C. § 6305(b)(1–6). Second, 31 U.S.C. § 3727—titled “Assignments of Claims”—similarly governs the proper assignment of claims, interests in the claim against the United States Government, or “the authorization to receive payment for any part of the claim.” 31 U.S.C. § 3727(a)(1)–(2). Specific procedures are statutorily mandated for lawfully assigning a claim. See id. § 3727(b). However, under subsection (c), a claim can be effective even if it does not abide by the restrictions of subsection (b) if the following conditions—nearly identical to those in Section 6305 of Title 41—are met. Id. § 3727(c). First, the claim must be for at least $1,000. Id. Second, the “contract [assigned] does not forbid an assignment.” Id. § 3727(c)(1). Third, so long as the contract does not provide otherwise, the assignment “is for the entire amount not already paid . . . [the assignment] is made to only one party, except that it may be made to a party as agent or trustee for more than one party participating in the financing . . . and . . . may not be reassigned.” Id. § 3727(c)(2). Fourth, the assignee must file a “written notice of the assignment and a copy of the assignment with the contracting official or head of the agency, the surety on a bond on the contract, and any disbursing official for the contract.” Id. § (c)(3). Given the nearly identical requirements, the two statutes operate in tandem to prohibit most assignments of government contracts and claims to payment on those contracts absent strict compliance with their requirements. IV. Whether the Government Waived its Affirmative Defenses Related to the Anti-Assignment Acts Plaintiff first argues because the government failed to raise its defenses related to the Anti-Assignment Acts in its Answer, the government “has therefore waived those defenses.” Pl.’s Resp. at 20. Plaintiff further asserts it has been prejudiced by the government’s delay in raising these defenses because plaintiff “continu[ed] to provide documents and expend resources on the mistaken belief that the parties were working toward a mutual and good faith resolution of this matter.” Id. at 21. Instead of seeking settlement, plaintiff claims the government “weaponized [plaintiff]’s good-will against it by utilizing the documents [plaintiff] provided to advance additional theories that could have been raised years ago.” Id. Plaintiff, however, does not allege any further prejudice related to its ability to pursue its case or adequately respond to the government’s defenses. See id. According to Rule 8(c)(1) of the Rules of the Court of Federal Claims (“RCFC”), “a party must affirmatively state any . . . affirmative defense.” RCFC 12(b) further states “[e]very defense to a claim for relief in any pleading must be asserted in the responsive pleading.” “[T]he failure to plead [an affirmative defense] can result in waiver.” Shell Oil Co. v. United States, 896 F.3d 1299, 1315 (Fed. Cir. 2018) (quotations omitted) (alterations in original). Where, however, a plaintiff is allowed to “ably and thoroughly respond[] to the Government’s arguments” for an affirmative defense and there is “no prejudice from the injection of the issue -6- at this stage,” courts “will consider the defense on the merits.” Cities Serv. Helex, Inc. v. United States, 211 Ct. Cl. 222, 234 n.14 (1976); see also First Annapolis Bancorp, Inc. v. United States, 75 Fed. Cl. 280, 288 (2007) (“An affirmative defense may be waived if not pled as prescribed, but the waiver is not effective absent unfair surprise or prejudice.” (citing Caldera v. Northrop Worldwide Aircraft Servs., Inc., 192 F.3d 962, 970 (Fed. Cir. 1999)). Here, although the government did not raise an affirmative defense related to the Anti-Assignment Acts in its Answer in this case, see Answer, ECF No. 8, this does not end the inquiry because the Court may still “consider [the government’s] defense on the merits” where plaintiff was given an opportunity to respond and no prejudice would result. See Cities Serv. Helex, Inc., 211 Ct. Cl. at 234 n.14; see also Borovicka v. United States, 138 Fed. Cl. 534, 540 (2023) (“Where, as here, the opposing party is given adequate notice, an opportunity to respond, and is not prejudiced by the new defense, the failure to assert an affirmative defense in a responsive pleading does not automatically result in waiver.”). As a result, in determining whether the Court should consider the government’s defense on the merits, the Court reviews: (1) whether the government should have asserted the defense in a responsive pleading; and (2) whether plaintiff was allowed to ably and thoroughly respond to the government’s defense. First, the Court notes this action was stayed on 10 August 2023, shortly after the government filed its Answer and even before the parties could submit a Joint Preliminary Status Report. See 10 August 2023 Order Granting Joint Motion to Stay, ECF No. 11. The parties engaged in informal discovery and attempted to reach a nonjudicial solution, until the stay was lifted on 9 June 2025 and the government filed its Motion for Summary Judgment on 9 July 2025. See 9 June 2025 Order Terminating Stay, ECF No. 29; see also Gov’t’s MSJ. Given this case was jointly stayed for the overwhelming majority of the two years since the Complaint was filed, this case is still procedurally in relative infancy. Critically, the government states it only discovered the facts underlying its Anti-Assignment Acts defense after filing its answer and during the informal discovery period. See Gov’t’s Reply at 18. This means, the government could not have asserted the defense in its Answer. Although plaintiff insists the government “weaponized” its cooperation during the joint stay by ascertaining the facts underlying the Anti-Assignment Acts defense, plaintiff offers no evidence to support the accusation the government engaged in any misconduct, nor does plaintiff explain how the government “weaponized” the settlement negotiations, other than by obtaining documents it presumably could have equally sought in formal discovery. See Pl.’s Resp. at 21. Considering this case was jointly stayed for an extended period of time soon after the government filed its answer, and because the government discovered the grounds for the defense during the joint stay, the government likely did not waive its Anti-Assignment Acts defense. Second, plaintiff had a full and fair opportunity to respond to the government’s defense. Plaintiff agreed at oral argument it was on notice the government planned to raise defenses related to the Act “at least by March 2025.” Tr. at 24:21–23. Several months later, on 16 July 2026, the government moved for summary judgment raising this defense. See Gov’t’s MSJ at 21. Plaintiff responded to the government’s motion, substantively opposing the government’s defenses and introducing the issue of waiver. See Pl.’s Resp at 10, 19. As the government explained at oral argument, given the posture on summary judgment, plaintiff also had an opportunity to submit any evidence supporting its opposition to the government’s defenses. -7- See Tr. at 19:17–23 (noting if plaintiff had evidence the government consented to the assignment arrangements, plaintiff had “every opportunity” to present the evidence in its Response). Finally, the Court held oral argument on 11 February 2026 where plaintiff freely presented its arguments in opposition to the government’s motion. Given plaintiff was afforded the opportunity to rebut the government’s defense in its Response and at oral argument, plaintiff received its full and fair opportunity to respond to the government’s arguments and suffered no prejudice. Moreover, although plaintiff argues it was “forced to bear time and expense of unilateral discovery by responding to the Government’s requests for more information, while not receiving any information in return,” plaintiff does not explain (1) why it could not have also sought information from the government during this time, and (2) whether it was under a specific obligation to engage with the government if it chose not to do so. See Pl.’s Resp. at 21. As a result, considering plaintiff was allowed to “ably and thoroughly respond[] to the Government’s arguments” and was “no[t] prejudice[d] from the injection of the issue at this stage,” the Court finds the government did not waive the defense and “will consider the defense on the merits.” Cities Serv. Helex, Inc. v. United States, 211 Ct. Cl. 222, 234 n.14 (1976). V. Whether Plaintiff Validly Assigned the Contract Proceeds to ePlus Under the Anti-Assignment Acts The Court next determines whether plaintiff’s agreement with ePlus validly assigned the contract proceeds to ePlus consistent with the requirements of the Anti-Assignment Acts, 31 U.S.C. § 3727 and 41 U.S.C. § 6305. In doing so, the Court first examines whether the agreements between plaintiff and ePlus effected an assignment of the proceeds of plaintiff’s contract with the government, which would then require plaintiff to comply with the Anti-Assignment Acts. Second, the Court determines whether, assuming the agreements did effect an assignment, plaintiff complied with the requirements of the Anti-Assignment Acts, as failure to do so would result in the assignments being void against the government. Third, the Court addresses whether the government waived the requirements of the Anti-Assignment Acts to recognize plaintiff’s assignment to ePlus, permitting an assignment to be enforced against the United States even if plaintiff did not comply with the Anti-Assignment Acts. A. Whether the Agreements Between Plaintiff and ePlus Effected an Assignment of the Proceeds of the Contract The Court first determines whether the Master Purchase Agreement and the Schedule 2 Agreement between plaintiff and ePlus effected an assignment of the proceeds of plaintiff’s contract with the government. Plaintiff argues the Master Purchase Agreement is only a “commercial document[] . . . that go[es] toward financing of the contract”—not an actual assignment of any contract rights—and is therefore not subject to the Anti-Assignment Acts. Tr. at 33:2–8; see also Tr. at 46:1–9, 98:1–20. The government argues the agreements effect a straightforward assignment subject to the Acts. Gov’t’s MSJ at 23. As “[c]ontract interpretation is a question of law generally amenable to summary judgment,” Varilease Tech. Grp., Inc. v. United States, 289 F.3d 795, 798 (Fed. Cir. 2002) (citation omitted), and “begins with the language of the written agreement,” Beacon Point Assocs. LLC v. Dep’t of Vets. Affairs, 139 F.4th 1306, 1309 (Fed. Cir. 2025) (citation and quotations omitted), the Court -8- begins with the language in plaintiff’s agreements with ePlus to interpret whether plaintiff assigned its rights to ePlus. The Master Purchase Agreement provides “Seller [i.e., plaintiff] hereby 1) sells, assigns, and transfers to Buyer [i.e., ePlus] all of Seller’s right, title, and interest in the [Delivery Order] Payments and Equipment.” Gov’t’s MSJ, Ex. 2 at 1, ECF No. 37-1 (Master Purchase Agreement) (emphasis added). Schedule 2, which incorporates the terms of the Master Purchase Agreement and specifically relates to the contract at issue in this case, similarly provides “Seller hereby (i) assigns and transfers to Buyer all of Seller’s rights and interest, but none of its obligations, in the [Delivery order] payment.” Gov’t’s MSJ, Ex. 3 at 1, ECF No. 37-1 (Schedule 2 Agreement between plaintiff and ePlus ) (emphasis added). According to 31 U.S.C. § 3727, an “assignment” is “(1) a transfer or assignment of any part of a claim against the United States Government or of an interest in the claim; or (2) the authorization to receive payment for any part of the claim.” Here, the language of the written agreements directly recites plaintiff “assigns . . . all of [its] rights and interests” to payment from the government to ePlus. Gov’t’s MSJ, Ex. 2 at 1 (Master Purchase Agreement); Gov’t’s MSJ, Ex. 3 at 1 (Schedule 2 Agreement between plaintiff and ePlus). In applying the statute’s definition of assignment, moreover, plaintiff not only provided ePlus “authorization to receive payment for [a] part of the claim,” plaintiff also assigned and transferred all rights pertaining to the “[Delivery Order] Payments and Equipment.” Compare 31 U.S.C. § 3727 with Gov’t’s MSJ, Ex. 2 at 1 (Master Purchase Agreement). Further, the Master Purchase Agreement defines the price paid to ePlus under the Schedule 2 agreement as the “Assignment Price.” Gov’t’s MSJ, Ex. 2 at 1 (Master Purchase Agreement). As further indication the Master Purchase Agreement was an assignment to ePlus, the Court compares the Master Purchase Agreement (between plaintiff and ePlus) to plaintiff’s Assignment Instrument to Wilmington Trust. At oral argument, plaintiff confirmed it assigned its rights to Wilmington Trust, and the “language from the Echelon to Wilmington Trust is subject to the FAR 32.8 under the Assignment of Claims Act.” Tr. at 139:4–11. Although plaintiff characterized the agreements with ePlus as merely “commercial documents” rather than an assignment at oral argument, plaintiff agreed the agreements with ePlus use the same language as the Wilmington Trust assignment. Tr. at 138:21–139:20; compare Gov’t’s MSJ, Ex. 9 (Notice of Assignment and copy of Instrument of Assignment to Wilmington Trust) (“does hereby assign, set over, and transfer unto Wilminton Trust . . . as Assignee, all of [plaintiff’s] rights and interests to all monies and/or payments due . . . .) with Gov’t’s MSJ, Ex. 3 (Schedule 2 Agreement between plaintiff and ePlus) (“assigns and transfers to [ePlus] all of [plaintiff’s] rights and interest, but none of its obligations, in the DO payments . . . .”). If there was any remaining doubt, plaintiff’s counsel agreed at oral argument the Master Purchase Agreement “clarifies that [plaintiff]’s right to all payments are assigned to ePlus.” Tr. at 91:11–14. Considering plaintiff’s agreement at oral argument and the language of plaintiff’s agreements with ePlus explicitly assigning and transferring plaintiff’s rights, and given plaintiff agrees the language used in plaintiff’s agreements with ePlus are the same as the Wilmington Trust instrument assigning plaintiff’s interests to Wilmington Trust, the Court interprets the Master Purchase Agreement and the Schedule 2 agreement as an assignment of plaintiff’s rights to payment on its contract with the government to ePlus. Varilease Tech. Grp., Inc., 289 F.3d at 798; Beacon Point Assocs., 139 F.4th at 1309. -9-  B. Whether the Assignment to ePlus Complied with the Requirements of the Anti-Assignment Acts Given the Court’s conclusion the Master Purchase Agreement and the Schedule 2 follow-on agreement effected an assignment to ePlus, the Court next determines whether the assignment complied with the requirements of the Anti-Assignment Acts. 31 U.S.C. § 3727 limits assignments of government contracts to specific circumstances where the contract: (1) does not forbid an assignment; (2) is assigned to “a bank, trust company, or other financing institution”; (3) is assigned “for the entire amount not already paid”; (4) is assigned only to one party; and (5) may not be reassigned. See 31 U.S.C. § 3727(c); 41 U.S.C. § 6305(b) (same requirements). Even if these conditions are met, the assignment is only valid if “the assignee files a written notice of the assignment and a copy of the assignment with the contracting official or the head of the agency, the surety on a bond on the contract, and any disbursing official for the contract.” Id. The Court examines in turn whether plaintiff’s assignment to ePlus complied with each of these requirements. First, the Anti-Assignment Acts only permit an assignment where the contract does not itself forbid an assignment. See 31 U.S.C. § 3727(c)(1); 41 U.S.C. § 6305(b)(3). Nothing in the contract here specifically forbids an assignment. See Gov’t’s MSJ, Ex. 1 (Contract between the government and plaintiff). The parties agree plaintiff’s assignment to Wilmington Trust is valid, 4 thus no party argues the contract specifically forbids an assignment. See Gov’t’s MSJ at 5, 10–11; Pl.’s Resp. at 6. Second, the Anti-Assignment Acts only permit an assignment where the assignee is “a bank, trust company, or other financing institution.” See 31 U.S.C. § 3727(c); 41 U.S.C. § 6305(b)(1). Although “financing institution” is not defined in the statute, the Federal Circuit explains “a financing institution supplies financing. . . . It lends money or provides capital.” Fireman’s Fund Ins. Co. v. England, 313 F.3d 1344, 1350 (Fed. Cir. 2002). The term does not include an insurance company, see id., nor does it include a surety, see id. (citing Royal Indeminity Co. v. United States, 117 Ct. Cl. 736, 746 (1950)). Here, plaintiff argues ePlus “considers itself a financial institution” because “it lends money, it finances certain government contracts, and it provides its capital as well.” Tr. at 112:7–14. The government stated it “couldn’t determine” whether ePlus is a financing institution, but argued it does not matter because the assignment fails for other reasons. Tr. at 114:12–19. Although the parties did not address ePlus’ specific status as a financing institution, plaintiff agreed at oral argument ePlus was “not lending in this instance” and was simply “procuring financing.” Tr. at 121:6–9. The Court is skeptical of the notion ePlus can validly be a financing institution where plaintiff agrees it provided no actual financing and is instead characterized as a “vendor” to plaintiff. See Tr. at 121:6–7 (“[PLAINTIFF]: I would defer to the characterization as a vendor.”). Given 4 Even if plaintiff’s assignment to Wilmington Trust were not valid under the Anti-Assignment Acts, it is a textbook example of the government’s ability to waive the Act’s requirements and recognize an assignment because the government received a formal notice of the assignment, signed the notice, modified the contract to reflect the notice, and made payments to Wilmington Trust. See Section VII.C, infra. - 10 - the government does not directly argue ePlus is not a financial institution, no briefing or discovery has taken place on its status, and the Court is required to “draw all justifiable inferences [] in the non-movant’s favor” on summary judgment, the Court assumes strictly for the purposes of summary judgment ePlus is a financial institution within the confines of the Anti-Assignment Acts. See Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d 1253, 1257 (Fed. Cir. 2001). Third, the Anti-Assignment Acts require an assignment to be for the “entire amount not already paid” on the contract. See 31 U.S.C. § 3727(c)(2)(A); 41 U.S.C. § 6305(b)(4). Plaintiff’s assignment to ePlus in the Schedule 2 contract provided plaintiff assigned “all of [plaintiff]’s rights and interest” in the contract to ePlus. Gov’t’s MSJ, Ex. 3 at 1 (Schedule 2 Agreement between plaintiff and ePlus). Considering the plain language of this provision indicates plaintiff assigned ePlus 100% of the outstanding payments on the contract, the purported assignment comports with the third requirement in the Anti-Assignment Acts framework. See 31 U.S.C. § 3727(c)(2)(A); 41 U.S.C. § 6305(b)(4). Fourth, regarding the requirement the assignment “is made only to one party,” the parties agree plaintiff validly made one assignment to Wilmington Trust prior to the effective date of the assignment to ePlus. See Gov’t’s MSJ at 5, 10–11; Pl.’s Resp. at 6, 17. Given the prior valid assignment, plaintiff’s attempt to assign those same rights to ePlus violates the Anti-Assignment Acts’ prohibition on making more than a single assignment. See 31 U.S.C. § 3727(c)(2)(B); 41 U.S.C. § 6305(b)(5). Plaintiff argues its contract with ePlus did not violate the rule against multiple assignments because Section 3727 “permits assignment to ‘only one party’ that may act ‘as agent or trustee for more than one party participating in the financing.’” Pl.’s Resp. at 16–17 (quoting 31 U.S.C. § 3727). Plaintiff asserts its arrangement falls into this provision because Wilmington Trust—which all parties agree is a valid assignee—was simply acting as the agent or trustee to pay ePlus, who was participating in the financing arrangement. Id. For support, plaintiff cites a 1962 case in which the Court of Claims approved an arrangement where a government contractor assigned its contract payments to a bank, and then instructed the bank to send 40% of the funds to another entity, First Mortgage, who had given the government contractor a loan to fulfill its contract. See Coleman v. United States, 158 Ct. Cl. 490, 493 (1962). In Coleman, however, there was only one assignment; the contractor assigned the proceeds to the bank, who was then instructed to hand 40% of the funds over to First Mortgage. See id.; Tr. at 190:7–9 (“[THE COURT:] You agree, though, that there was only one assignment of rights in Coleman. [PLAINTIFF]: Correct.”). The contractor there did not assign contract rights to First Mortgage and then attempt to assign the same rights to the bank in order to pay First Mortgage. See Coleman, 158 Ct. Cl. at 493. Coleman thus affirms Section 3727(c)(2)(B) permits a single assignee to act as an agent who then pays out the contract proceeds it receives to other entities providing funds to a contractor, but it does not bless an arrangement where multiple parties are assigned the same contract rights. Id. Here, unlike in Coleman, plaintiff attempted to make two assignments: one to Wilmington Trust and another to ePlus. See Section VII.A, supra. Coleman therefore does not support pla