Crewzers Fire Crew Transport v. United States , 741 F.3d 1380 ( 2014 )

United States Court of Appeals
for the Federal Circuit
______________________
CREWZERS FIRE CREW TRANSPORT, INC.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-5104
______________________
Appeal from the United States Court of Federal
Claims in No. 11-CV-0607, Judge Susan G. Braden.
----------------------
CREWZERS FIRE CREW TRANSPORT, INC.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-5105
______________________
Appeal from the United States Court of Federal
Claims in No. 12-CV-0064, Judge Susan G. Braden.
______________________
2 CREWZERS FIRE CREW TRANSPORT v. US
Decided: February 6, 2014
______________________
CYRUS E. PHILLIPS, IV, Albo & Oblon, L.L.P., of Ar-
lington, Virginia, argued for plaintiff-appellant.
ELLEN M. LYNCH, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for defendant-
appellee. With her on the brief were STUART F. DELERY,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, BRYANT G. SNEE, Deputy Director, and SHELLEY D.
WEGER, Trial Attorney. Of counsel on the brief was AZINE
FARZAMI, Attorney, Office of the General Counsel, General
Law Division, United States Department of Agriculture,
of Washington, DC.
______________________
Before RADER, Chief Judge, CLEVENGER, and REYNA,
Circuit Judges.
REYNA, Circuit Judge.
Crewzers Fire Crew Transport, Inc. (“Crewzers”) ap-
peals from two related decisions of the United States
Court of Federal Claims dismissing its causes of action for
lack of jurisdiction. See Crewzers Fire Crew Transport,
Inc. v. United States, 111 Fed. Cl. 148 (2013) (“Crewzers
I”); Crewzers Fire Crew Transport, Inc. v. United States,
111 Fed. Cl. 267 (2013) (“Crewzers II”). In each decision,
the trial court held that a blanket purchase agreement
(“BPA”) between Crewzers and the United States Forest
Service was not a binding contract invoking jurisdiction
under the Tucker Act, 28 U.S.C. § 1491(a). For the rea-
sons below, we affirm.
CREWZERS FIRE CREW TRANSPORT v. US 3
I.
On March 30, 2011, Crewzers became one of several
awardees under a BPA with the Forest Service to provide
crew carrier buses. These buses are heavy duty vehicles
used to transport fire crews to wildfires and other disaster
areas located within regional and national wilderness
zones. Two weeks later, on April 11, 2011, Crewzers was
awarded another multiple-award BPA from the Forest
Service, this time to provide flame retardant tents to
disaster areas as needed. Both BPAs established dispatch
priority lists that ranked each awardee’s available re-
sources (e.g., crew carrier buses or flame retardant tents)
within each of six geographic zones. When an emergency
arose, the Forest Service was to submit an order for the
highest-ranked (i.e., lowest-priced) resource available on
the dispatch priority list within the relevant geographic
zone. Once the Forest Service submitted an order for a
particular resource and the contractor decided to accept
the order, a contract was formed and the contractor was
obligated to provide the requested resource in response to
the identified emergency. These BPAs are thus appropri-
ately characterized as frameworks for future contracts—
“a set of ground rules as it were, and no obligations are
assumed by either party until orders are given by the
Government and accepted by the contractor.” Modern
Sys. Tech. Corp. v. United States, 979 F.2d 200, 204 (Fed.
Cir. 1992) (internal quotations omitted).
According to the agreements, “If a Contractor cannot
be reached or is not able to meet the time and date need-
ed, the dispatcher may proceed with contacting the next
resource on the dispatch priority list.” BPA § D.6.5.1.
The Forest Service was also given the discretion to devi-
ate from these dispatch priority lists as needed to respond
effectively to actual fire conditions. The BPAs explicitly
provided that any such deviations would “not be deemed a
violation of any term or condition of this Agreement.”
BPA § D.6.1.c.
4 CREWZERS FIRE CREW TRANSPORT v. US
Because of the sporadic and unpredictable nature of
wildfires and other emergencies, the Forest Service did
not make any guarantee that it would actually place
orders under these BPAs. By the same token, the terms
of the BPAs required Crewzers to accept orders only to
the extent it was “willing and able[,]” as noted in the
clause below:
This solicitation will result in multiple agree-
ments. The dollar limitation for any individual
order is $150,000.00 Since the needs of the Gov-
ernment and availability of Contractor’s resources
during an emergency cannot be determined in ad-
vance, it is mutually agreed that, upon request of
the Government, the Contractor shall furnish the
resources listed herein to the extent the Contractor
is willing and able at the time of order. Due to the
sporadic occurrence of Incident activity, the
placement of any orders IS NOT GUARANTEED.
BPA § B, Pricing & Estimated Quantity (emphasis add-
ed).
In August 2011, the Forest Service notified Crewzers
that it was terminating its BPA for crew carrier buses
after Crewzers allegedly responded to several orders with
unauthorized vehicles and, in one instance, attempted to
bill the Forest Service at a higher-than-authorized rate.
In November 2011, the Forest Service also terminated
Crewzers’s BPA for flame retardant tents after Crewzers
allegedly provided tents that did not meet the BPA’s
specifications or, in some cases, failed to deliver the tents
on time. Crewzers filed separate suits in the Court of
Federal Claims challenging both terminations and assert-
ing, among other things, that the Forest Service acted in
bad faith. In both suits, Crewzers sought a declaratory
judgment that it was entitled to breach of contract dam-
ages, or alternatively, to reinstatement of the BPAs.
CREWZERS FIRE CREW TRANSPORT v. US 5
On May 31, 2013, the Court of Federal Claims issued
nearly identical opinions in both cases granting the
Government’s motions to dismiss for lack of jurisdiction.
The trial court held that the BPAs between Crewzers and
the Forest Service were not binding contracts because
they lacked “the necessary mutuality of consideration
required for an enforceable contract[.]” Crewzers I, 111
Fed. Cl. at 158; Crewzers II, 111 Fed. Cl. at 276. The trial
court therefore concluded that it lacked jurisdiction under
the Tucker Act, 28 U.S.C. § 1491(a).
Crewzers appealed the dismissals to this Court on
July 12, 2013. We have jurisdiction over these appeals,
which were consolidated for argument purposes, pursuant
to 28 U.S.C. § 1295(a)(3).
II.
To invoke the Court of Federal Claims’s jurisdiction
under the Tucker Act, a contractor must first show that
its claims arose out of a valid contract with the United
States. 1 Therefore, the question here on appeal is wheth-
er Crewzers presented a well-pleaded allegation that the
BPAs between Crewzers and the United States constitut-
ed binding contracts sufficient to establish Tucker Act
jurisdiction—a question of law reviewed de novo. See,
e.g., Ridge Runner Forestry v. Veneman, 287 F.3d 1058,
1061 (Fed. Cir. 2002).
“To be valid and enforceable, a contract must have
both consideration to ensure mutuality of obligation
1 Under the Tucker Act, the Court of Federal
Claims has jurisdiction “to render judgment upon any
claim against the United States founded . . . upon any
express or implied contract with the United States[.]” 28
U.S.C. § 1491(a)(1). The Tucker Act also gives the trial
court jurisdiction over claims or disputes arising under
the Contract Disputes Act. See id. § 1491(a)(2).
6 CREWZERS FIRE CREW TRANSPORT v. US
. . . and sufficient definiteness so as to provide a basis for
determining the existence of a breach and for giving an
appropriate remedy.” Ace-Federal Reporters, Inc. v.
Barram, 226 F.3d 1329, 1332 (Fed. Cir. 2000) (internal
quotations omitted) (internal citations omitted). “A
promise or apparent promise is not consideration if by its
terms the promisor or purported promisor reserves a
choice of alternative performances . . . .” Restatement
(Second) of Contracts § 77 (1979).
We hold that Crewzers has failed to present a non-
frivolous allegation that the BPAs at issue here are bind-
ing contracts. These BPAs reflect illusory promises that
do not impose obligations on either party. The Forest
Service is not required under the terms of the BPAs to
place any orders with Crewzers. Likewise, Crewzers
promised only to accept orders to the extent it is “willing
and able[,]” and is thus perfectly free not to accept any
orders at all. “It is axiomatic that a valid contract cannot
be based upon the illusory promise of one party, much less
illusory promises of both parties.” Ridge Runner, 287
F.3d at 1062 (citing Restatement (Second) of Contracts
§ 71(1)).
Our previous decisions in Ridge Runner and Modern
Systems Technology Corporation are instructive on this
issue. See Ridge Runner Forestry v. Veneman, 287 F.3d
1058 (Fed. Cir. 2002); Modern Sys. Tech. Corp. v. United
States, 979 F.2d 200 (Fed. Cir. 1992). In Ridge Runner,
we concluded that a tender agreement issued by the
Forest Service—which contained language nearly identi-
cal to Crewzers’s BPAs—lacked the required mutuality of
obligation to be considered a valid contract. 2 Just like
2 Although the agreement at issue in Ridge Runner
was not labeled a “blanket purchase agreement,” we have
noted in the past that “we should not be blinded by how
CREWZERS FIRE CREW TRANSPORT v. US 7
Crewzers’s BPAs, the agreement in Ridge Runner provid-
ed that, “upon request of the government, the contractor
shall furnish the equipment offered herein to the extent
the contractor is willing and able at the time of order.”
297 F.3d at 1060 (emphasis original). The agreement
further warned that the Forest Service could not “guaran-
tee there will be a need for the equipment offered nor does
it guarantee orders will be placed against the awarded
agreements.” Id. Based on this language, we held that
the tender agreement was not a binding contract:
The Agreements contained no clause limiting the
government’s options for firefighting services; the
government merely “promised” to consider using
Ridge Runner for firefighting services. Also, the
Tender Agreement placed no obligation upon
Ridge Runner. If the government came calling,
Ridge Runner “promised” to provide the requested
equipment only if it was “willing and able.”
Id. at 1062. This same “willing and able” language is
present in Crewzers’s BPAs. Therefore, just as in Ridge
Runner, we must conclude that this language placed no
obligation on Crewzers to accept orders from the Forest
Service and cannot provide the consideration necessary to
create a binding contract. Crewzers has pointed us to
nothing else in the BPAs that would obligate Crewzers to
accept orders from the Forest Service. 3
one labels a contract.” Ace-Federal Reporters, 226 F.3d at
1331.
3 Crewzers argues that Ridge Runner is not control-
ling because the contractor in that case sought money
damages pursuant to a contract claim under the Contract
Disputes Act, whereas Crewzers here is seeking “equita-
ble relief under the Contract Disputes provisions.”
Crewzers’s attempt to distinguish monetary claims from
8 CREWZERS FIRE CREW TRANSPORT v. US
We reached the same conclusion in Modern Systems
with respect to a basic pricing agreement issued by the
United States Postal Service. In Modern Systems, this
Court affirmed “on the basis” of the trial court’s opinion,
which concluded that the basic pricing agreement was not
a binding contract because “the Postal Service is not
obligated to place any orders, and . . . the contractor is not
bound unless it accepts an order. The effect of this . . . is
that the [basic pricing agreement] itself does not create
any enforceable obligations between either party.” Mod-
ern Sys., 979 F.2d at 202. To be sure, we do not rely on
Modern Systems as any form of precedent and, to avoid
confusion as to what constitutes precedent in this Court,
we no longer affirm “on the basis of” a trial court’s opin-
ion. We nevertheless find persuasive, and particularly
applicable here, the reasoning in Modern Systems given
the structure of the agreements in question, which do not
require the Government to order any work from the
contractor even if the need for such work arises, and also
do not require the contractor to accept the work if or-
dered. Id. at 206.
Crewzers argues that our decision in Ace-Federal
Reporters mandates a finding that its BPAs are, in fact,
binding contracts. See Ace-Federal Reporters, Inc. v.
Barram, 226 F.3d 1329 (Fed. Cir. 2000). We disagree.
Ace-Federal Reporters concerned a multiple award sched-
nonmonetary claims brought under the Contract Disputes
Act has no basis in law, as the trial court’s jurisdiction in
both instances depends on the existence of a valid and
enforceable contract between the contractor and the
United States. See 28 U.S.C. § 1491(a)(2); 41 U.S.C.
§ 7102(a) (providing that the Contract Disputes Act
applies to “any express or implied contract . . . made by an
executive agency” for the procurement of property, ser-
vices, construction, or disposal of personal property).
CREWZERS FIRE CREW TRANSPORT v. US 9
ule contract for transcription and court reporting services.
Under this contract, “as consideration for the contractors’
promises regarding price, availability, delivery, and
quantity, the government promised that it would pur-
chase only from the contractors on the schedule, with few
exceptions” that allowed agencies to deviate from the
schedule only by obtaining a waiver from the General
Services Administration pursuant to 48 C.F.R. § 8.404-3
(1999). 4 Id. at 1332-33 & n.2. We held that the Govern-
ment’s promise provided sufficient consideration because
of the “substantial business value” in limiting the compe-
tition pool to “between two and five authorized sources in
each of the designated geographic regions,” instead of the
“18,000 other transcription services” available. Id. at
1332.
In contrast, there is no language in the BPAs at issue
here that requires the Forest Service to purchase re-
sources only from the contractors on the BPAs’ dispatch
priority lists, much less to purchase under specific terms,
i.e., value and quantity. The BPAs explicitly provided
that “the number of fire orders in process and actual fire
conditions at the time of dispatch may require a deviation
from normal procedures in order to respond effectively to
such conditions.” BPA § D.6.1.c. Furthermore, “[a]ny
such deviation will be within the discretion of [the] Gov-
ernment, and will not be deemed a violation of any term or
condition of this Agreement.” Id. (emphasis added). This
nearly unfettered discretion to vary from normal proce-
4 This schedule contract was thus akin to—
although not exactly the same as—a requirements con-
tract. Under a requirements contract, the buyer agrees to
exclusively use the seller for all of its needs, and the seller
has the legal obligation to fulfill those needs. See Torncel-
lo v. United States, 231 Ct. Cl. 20, 681 F.2d 756, 768-69
(1982).
10 CREWZERS FIRE CREW TRANSPORT v. US
dures is much different from the defined, limited excep-
tions available to the Government in Ace-Federal Report-
ers.
Nor is there any language that requires Crewzers to
ensure the availability of the requested resources. Under
the terms of the BPAs, Crewzers is required to respond to
an order only if “willing and able[.]” The BPAs also do not
impose any penalties on Crewzers for failing to maintain
the availability of its resources. As provided in the BPAs,
“If a Contractor cannot be reached or is not able to meet
the time and date needed, the dispatcher may proceed
with contacting the next resource on the dispatch priority
list.” BPA § D.6.5.1. Unlike the schedule contract in Ace-
Federal Reporters, Crewzers’s BPAs do not impose any
binding obligations on the parties and cannot be used to
invoke Tucker Act jurisdiction. We therefore affirm the
decision of the Court of Federal Claims dismissing
Crewzers’s suits for lack of jurisdiction.
III.
We have considered the parties’ other arguments, but
they do not affect the outcome of our decision. We there-
fore affirm the decision of the Court of Federal Claims.
AFFIRMED
COSTS
Each side shall bear its own costs.