Hallym Furniture Industrial Co., Ltd.
Docket: ASBCA 62782
Decision date: 2021-09-02

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE SMITH 
ON RESPONDENT’S MOTION TO DISMISS 
 
Appellant, Hallym Furniture Industrial Co., Ltd. (Hallym), appeals a 
contracting officer’s final decision (COFD) that denied Hallym’s certified claim 
seeking reinstatement of its Blanket Purchase Agreement (BPA) with Respondent, 
Department of the Army 411th Contracting Support Brigade, Korea (the government).  
Alternatively, Hallym’s claim sought an equitable adjustment for three different types 
of costs arising from the cancellation of the BPA in the total amount of 169,500,000 
Korean won (approximately $151,287.95).1  The government has moved to dismiss the 
appeal, arguing that the BPA is not a valid contract as required by the Contract 
Disputes Act (CDA), therefore the Board lacks subject matter jurisdiction over 
Hallym’s appeal.  Hallym argues that the BPA is a contract because Hallym could not 
refuse a call order once it was issued.  On balance, we find that this BPA is similar in 
nature to other BPAs that the Court of Appeals for the Federal Circuit has held to be 
non-contractual, thus we dismiss the appeal for lack of jurisdiction.   
 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
 
 On April 6, 2020, the parties executed BPA No. W91QVN-20-A-0012 for 
repair of Government-owned wooden furniture.  (R4, tab 1)  The BPA indicates that 
the BPA “is not a contract” (id. at 52), but the BPA contains contrary descriptive 
verbiage as well.3  The BPA provided that individual repairs or groups of repairs 
                                              
1 The symbol for Korean won is “₩” so Hallym’s total claim amount is shown as 
“₩169.5M.”  
2 Paragraph 2 of the Performance Work Statement reads:  “TERM OF BPA: This BPA 
is not a contract.  If the contractor fails to perform in a manner satisfactory or 
no longer required by the government, this BPA may be cancelled with 30 days 
written notice to the contractor by the Contracting Officer (KO).”  (R4, tab 1 
at 5) 
3 For example, and most notably, “Type of Contract.  The government contemplates 
award of a Fixed Unit Price, Multiple BPA’s contract resulting from this 
solicitation.”  (R4, tab 1 at 21) (emphasis omitted).  Also, “[t]he Contractor 
Appeal of - )  
 )  
Hallym Furniture Industrial Co., Ltd. ) ASBCA No. 62782 
 )  
Under Contract No. W91QVN-20-A-0012 )  
   

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would be separately issued as “purchases” or “calls” or “call orders.”4  (Id. at 8)  The 
BPA provided that call orders would be issued on a rotating basis between Hallym and 
other awardee contractor(s).  (Id. at 8)  The BPA did not commit the government to 
issue any call orders.  Instead, paragraph 13 of the Performance Work Statement 
provides that the government’s obligation arises only from call orders actually made 
under the BPA:  “EXTENT OF OBLIGATION:  The Government is obligated under 
this BPA only to the extent of authorized purchases [i.e. call orders] actually made 
under the BPA.”  (Id. at 8)  The BPA indicates that “[t]he Government may require 
continued performance of any services within the limits and at the rates specified in 
the contract” (id. at 21). 
 
After award of the BPA, the Government issued ten call orders that were 
performed by Hallym.  (R4, tab 10 at 5, 7; gov’t reply at 4 (“appellant . . . performed 
all of the ordered repair work.”))  Disagreements arose, however, with regard to the 
prices used by Hallym in its invoices, which were higher than in Hallym’s BPA price 
proposal.  (R4, tabs 13, 17-18, 23-27)  To correct what it perceived to be defects in 
Hallym’s invoices, the government itself generated the final invoice for Hallym’s work 
(R4, tab 21; app. supp. R4, tab 4), but there is no evidence that the final invoice has 
been paid.  ((gov’t. reply br. at 5) (Appellant has not signed or acknowledged the final 
invoice)). 
 
Based upon the government’s opinion regarding Hallym’s “unsatisfactory 
performance” relating to the invoices, the contracting officer notified Hallym on 
September 21, 2020, that the BPA would be cancelled in 30 days because “[Hallym] 
failed to perform this BPA services (sic) in a manner satisfactory to the Government.” 
(R4, tab 20)5  A written dialogue ensued where Hallym attempted to persuade the 
contracting officer to retract the cancellation notice.  (R4, tabs 22-27)  The dialogue 
                                              
shall maintain own facility (minimum of 198m2 [60 Pyeong]) to perform this 
contract requirements (sic) for the entire contract period.”  (Id. at 8)  Also, 
“[t]he Government may require continued performance of any services within 
the limits and at the rates specified in the contract.”  (Id. at 21)  A word search 
of the BPA finds 45 uses of the word “contract,” many of which are incidental 
like “Section I -- Contract Clauses” (id. at 14), but approximately 10 of which 
are not i.e. the clauses cited above.  A document that the government intends 
not to be a contract should minimize use of the word “contract.”  Instead, 
“BPA” should be used to describe the agreement.      
4 The BPA uses all three terms to refer to the repair orders issued under the BPA.  For 
purposes of this decision, we use the term “call orders.” 
5 The BPA provides that “[i]f the contractor fails to perform in a manner satisfactory 
or no longer required by the Government, this BPA may be cancelled with 
30 days written notice to the contractor by the Contracting Officer.”  (R4, tab 1 
at 5) 

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devolved into allegations by both parties of “lack of business integrity and ethical 
business practices” (the government’s allegation against Hallym, (R4, tab 24 at 2; see 
also gov’t. reply br. at 2)) and a “gross administrative error” and improper or illegal 
changes to government documents (Hallym’s allegations against the government).  
(Complaint at 6; see R4, tab 25) 
 
When the government refused to withdraw the cancellation notice, instead 
finalizing the cancellation on November 11, 2020, (R4, tab 27), Hallym submitted a 
certified claim on November 25, 2020, seeking reinstatement of the BPA or, in the 
alternative, ₩169.5M for bid preparation costs, facility lease costs, and lost future 
profits – but not for payment of the government-generated invoice.  (R4, tab 28)  The 
government denied Hallym’s claim in full with a COFD issued on December 7, 2020.  
(R4, tab 29) The COFD addressed each of Hallym’s claim allegations regarding the 
BPA bid, award, price, invoice process, and claimed financial injuries as well as the 
government’s basis for canceling the BPA.  Id. This appeal timely followed the COFD. 
 
DECISION 
 
I. Standard of Review 
 
We review the government’s motion to dismiss for lack of jurisdiction pursuant 
to the standards of FED. R. CIV. P..12(b)(1).  L-3 Commc’ns Integrated Sys., L.P., 
ASBCA Nos. 60713, 60716, 17-1 BCA ¶ 36,865 at 179,624 (applying Rule 12(b)(1) 
because Board may look to Federal Rules of Civil Procedure for guidance where 
Board’s rules are silent).  When a motion to dismiss pursuant to F
ED. R. CIV. P. 
12(b)(1) denies or controverts allegations of jurisdiction, only uncontroverted factual 
allegations are accepted as true for purposes of the motion, and other facts underlying 
the jurisdictional allegations are subject to fact-ﬁnding based on the Board’s review of 
the record.  Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-84 (Fed. Cir. 
1993); CCIE & Co., ASBCA Nos. 58355, 59008, 14-1 BCA ¶ 35,700 at 174,816. 
 
The government’s motion distinguishes between a facial attack on the Board’s 
jurisdiction and a factual attack, and the different standards that apply to our review of 
factual allegations (gov’t. reply br. at 2-3).  Though this digression is not incorrect, it 
is unnecessary because the government’s motion to dismiss essentially relies upon no 
facts at all save for the BPA itself and, perhaps, the written content of Hallym’s 
certified claim.  Hallym, as the proponent of the Board’s jurisdiction, bears the burden 
of proving the Board’s subject matter jurisdiction by a preponderance of the evidence, 
which includes showing the existence of a valid contract.  See 41 U.S.C. § 7105(e)(2); 
General Mills, Inc. v. United States, 957 F.3d 1275, 1284 (Fed. Cir. 2020); Reynolds v. 
Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988); United Healthcare 
Partners, Inc., ASBCA No. 58123, 13 BCA ¶35,277 at 173,156.  See also Crewzers 
Fire Crew Transp., Inc. v. United States, 741 F.3d 1380, 1382 (Fed. Cir. 2014).  

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II. BPAs are Generally not Contracts, and the BPA Here is no Exception  
 
 Fundamental contract law dictates that there can be no contract without mutual 
obligations between the parties.  See Kam-Almaz v. United States, 682 F.3d 1364, 1368 
(Fed. Cir. 2012); Night Vision Corp. v. United States, 469 F.3d 1369, 1375 (Fed. Cir. 
2006).  Specifically, the Court of Appeals for the Federal Circuit has held that BPAs 
that do not impose binding obligations upon the parties are not contracts.  Crewzers, 
741 F.3d at 1384; Modern Sys. Tech. Corp. v. United States, 979 F.2d 200, 206 (Fed. 
Cir. 1992) (“absence of mutuality of obligation leads to the conclusion that the parties 
lacked the requisite contractual intent”); see also See Ridge Runner Forestry v. 
Veneman, 287 F.3d 1058 (Fed. Cir. 2002).6  In particular, where the government is not 
obligated to place call orders, as here, the BPA “reflect[s] illusory promises that do not 
impose obligations on either party.”  Crewzers, 741 F.3d at 1382–83.   
 
The government’s reliance upon Crewzers and Modern Sys. Tech. is apt, albeit 
with a caveat.  Despite the clause stating that “[t]his BPA is not a contract” here, the 
parties do not address the fact that the BPA also contains numerous clauses, discussed 
above, that refer to the document as a “contract.”  (See, e.g. R4, tab 1 at 21 (Type of 
Contract))  While the internal contradictions in the BPA here, and the government’s 
failure to address them, present a slightly different factual predicate than that found in 
Crewzers and Modern Sys. Tech.,7 the government’s motion goes beyond the 
conclusory self-characterization in the BPA and demonstrates that the nature of the 
BPA itself is, in fact, non-contractual.  For example, as in Crewzers and Modern Sys. 
Tech, Hallym’s BPA did not require either party to take action until a call order was 
placed and accepted, supplying the consideration and mutual obligations missing from 
the BPA to create a contractual relationship between the parties.  Thus, Hallym’s BPA 
is “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., 979 F.2d 200 at 204.  On that key question, Crewzers and Modern Sys. Tech. 
are on point and we hold that the BPA here lacks mutual obligations and therefore is 
not a binding contract. 
 
                                              
6 The government also cites to McLeod Grp. v. United States, 840 F. App’x 525 (Fed. 
Cir. 2020), an unpublished Federal Circuit decision, and Zhengxing v. United 
States, 204 F. App’x 885 (Fed. Cir. 2006), which is “not citable as precedent.”  
Rather than rely upon unpublished and non-precedential decisions, we instead 
refer primarily to Crewzers and Modern Sys. Tech., which are valid and binding 
precedent and, except as noted below, on point with this appeal. 
7 Our review of Crewzers, Modern Sys. Tech., McLeod and Zhengxing found no 
indication of similar internal contradictions in those BPAs. 

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The government’s hypotheticals at pages 12-13 of its reply brief, that the Board 
would not possess jurisdiction if the Government had simply stopped issuing call 
orders to Hallym instead of canceling the BPA, or if the Government had cancelled the 
BPA for a reason unrelated to Hallym’s contract performance, or without stating a 
reason at all, is persuasive and further illustrates the non-obligatory, therefore non-
contractual nature of the BPA.  By plain reading of the provision that permits the 
cancelation of the BPA upon 30 days notice, the government had the prerogative to do 
exactly what it did here – cancel the BPA for any reason or none at all, and certainly 
when the government became dissatisfied with Hallym’s performance related to its 
invoices.   
 
Hallym attempts to distinguish its BPA from those found not to be contracts by 
arguing that Hallym could not refuse call orders once they were issued by the 
government, a so-called obligation not found in Crewzers that, Hallym argues, makes 
the BPA a valid contract (app. br. at 7-14).  Even if true, that still does not provide 
sufficient contract consideration or a mutual obligation that makes the BPA a contract 
where the government is under no obligation to issue any call orders.  See Modern 
Sys., 979 F.2d at 204 (citing Gavin, Gov’t Requirements Contracts, 5 PUB. CONT. L. J. 
243, 246 (1972)) (“Usually the parties merely arrange to do business when the 
government places an order at the unit price named in the [BPA]. In such an 
agreement, there is nothing in writing which requires the government to take any 
ascertainable quantity or amount”).  And we do not agree with Hallym’s contract 
interpretation anyway.  The BPA here provided that the government’s obligations were 
created upon issuance of call orders (R4, tab 1 at 8), which must apply equally to 
Hallym – the parties’ mutual obligations do not arise until the government initiates a 
call order that is accepted by Hallym.  Modern Sys. Tech., 979 F.2d at 204.  The BPA 
here did not contain an express provision where Hallym would only perform call 
orders that it was “willing and able” to perform, as existed in Crewzers, 741 F.3d 
at 1381.  It also did not explicitly provide that “[e]ach order that the [government] 
places and the contractor accepts becomes an individual contract,” as in Modern Sys. 
Tech., 979 F.2d at 204 (emphasis added).  But these clauses are little more than helpful 
statements of the obvious – each call order cannot become a contract until there is an 
offer and acceptance.  As a result, the lack of a similar clause does not transform 
Hallym’s BPA into a contract.   
 
III. The Board’s Jurisdiction is Limited to Call Order Claims, but None are 
Presented Here 
 
As discussed above, although Hallym and the government were parties to ten 
call orders, each of which was undisputedly a contract within the purview of the 

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CDA,8 the BPA itself is not a contract and, contrary to Hallym’s argument at page 14 
of its opposition, Hallym’s claim does not allege injury or costs related to the 
performance of Hallym’s ten call orders.  (R4, tab 28) As the government noted in its 
Answer at 57, Hallym may have some right to submit a call order claim if it suffered 
recoverable damages during call order performance (including, it appears, to seek 
payment upon the final invoice), but such claims were not made in Hallym’s certified 
claim, were not addressed in the COFD, and we have no authority to adjudicate them 
in this appeal.   
 
CONCLUSION 
 
The government’s motion is GRANTED and the appeal is DISMISSED for 
lack of jurisdiction. 
 
 Dated:  September 2, 2021 
 
 
BRIAN S. SMITH 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
(Signatures continued) 
 
                                              
8 The government’s motion acknowledges that the call orders issued to Hallym were 
CDA contracts.  (See, e.g., gov’t. reply br. at 9 (Upon the placement of a call 
order under a BPA, the call would become the contract, which then adopts the 
terms of the BPA; as a matter of law, for purposes of Contract Disputes Act 
jurisdiction; thus making ‘any interpretation required of the terms of the BPA . . 
. an interpretation of the terms of [the call orders placed under the BPA] since 
those orders were the vehicles that formed the contracts.)) (quoting Hewlett-
Packard Co., ASBCA Nos. 57940, 57941, 13 BCA ¶ 35,366 at 173,548). 


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I concur 
 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 J. REID PROUTY  
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
 
 I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 62782, Appeal of Hallym 
Furniture Industrial Co., Ltd., rendered in conformance with the Board’s Charter. 
 
 Dated:  September 2, 2021  
 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals