DISMISSED FOR FAILURE TO STATE A CLAIM: September 3, 2021
CBCA 7019
MLB TRANSPORTATION, INC.,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
James L. Hughes and Les A. Schneider of Wimberly, Lawson, Steckel, Schneider &
Stine, P.C., Atlanta, GA, counsel for Appellant.
Laetitia C. Coleman, Office of General Counsel, Department of Veterans Affairs,
Lakewood, CO; and Neil S. Deol, Office of General Counsel, Department of Veterans
Affairs, Decatur, GA, counsel for Respondent.
Before Board Judges GOODMAN, ZISCHKAU, and SULLIVAN.
SULLIVAN, Board Judge.
For five months in 2020, MLB Transportation, Inc. (MLB) held a contract to transport
patients in wheelchairs by van from the Department of Veterans Affairs (VA) hospital in
Atlanta, Georgia, to their homes. Because its payments on the contract declined due to
decreased need for transportation services during the COVID-19 pandemic, MLB filed a
claim with the VA contracting officer, seeking payment of insurance costs and vehicle
financing costs that it expected to recoup during the last two months of its contract. MLB
appealed the denial of its claim to the Board.


CBCA 7019 2
VA filed a motion to dismiss for failure to state a claim, asserting that MLB has not
and cannot identify a clause of its contract that gives MLB the right to seek payment for these
costs. In reviewing the contract, we found that, although the parties describe the contract as
an indefinite quantity contract, it contained no guaranteed minimum and was, therefore,
illusory. Because MLB did not allege in its claim or its notice of appeal that it has not been
paid for the services it rendered, we dismiss the appeal for failure to state a claim.1
Background
The initial period of MLB’s contract was January 1 through February 29, 2020.
Exhibit 5 at 7.2 The contract period was extended three times and ended on May 14, 2020.
Exhibits 12, 21, 30.
The contract contained five line items—two were prices for short- or long-distance
trips ($80 and $96), two were mileage rates for short- and long-distance trips ($4.25/mile and
$5/mile), and the fifth was the price for waiting, charged in increments of fifteen minutes.
For each of these line items, the contract listed a quantity and a total cost, which was the
product of the quantity and the unit price. For example, for one-way trips of less than 100
miles, the quantity was 2054 and the unit price was $80 for a total line item value of
$164,320. Exhibit 5 at 5. By modification dated March 16, 2020, the quantity of short-
distance trips was increased from 2054 to 6585. Exhibit 19. It appears that the parties
treated the contract as an indefinite quantity contract based upon the invoices submitted,
which sought payment for quantities smaller than these line items. See, e.g., Exhibit 33.
The contract does not contain any language indicating that the contract is an indefinite
quantity or requirements contract. Neither an indefinite quantity clause nor a requirements
clause is include or incorporated into the contract. Although the contract states that “[t]he
government reserves the right to increase or decrease the actual requirements as required –
see guaranteed minimum,” Exhibit 5 at 7, the contract does not state a guaranteed minimum.3
The contract also does not state that VA will only purchase wheelchair van transportation
services from MLB.
1 Pursuant to Board Rule 6(a), on January 21, 2021, MLB notified the Board of
its choice to designate its notice of appeal as its complaint. 48 CFR 6101.6(a) (2020).
2 All exhibits are in the appeal file, unless otherwise indicated.
3 MLB held another contract with VA in 2019 to provide the same type of
services. That contract included the Indefinite Quantity clause at 48 CFR 52.216-22 and a
statement regarding the guaranteed minimum. Exhibit 1 at 5, 19.

CBCA 7019 3
The contract included the Commercial Items clause, Federal Acquisition Regulation
(FAR) 52.212-4, Contract Terms and Conditions—Commercial Items (Oct. 2018). 48 CFR
52.212-4 (2019). That clause provides that “[c]hanges in the terms and conditions of this
contract may be made only by written agreement of the parties.” Exhibit 5 at 19. The clause
further provides that the possible causes of excusable delay under the contract include a
pandemic. Id. at 20. For disputes on the contract, the clause incorporates by reference FAR
52.233-1.
According to its notice of appeal, MLB submitted monthly invoices for amounts
ranging from $60,000 to $80,000 before the effects of the COVID-19 pandemic were felt.
Notice of Appeal at 2. Because of the drop in rides that MLB attributes to the pandemic, the
monthly amounts of MLB’s invoices dropped to $11,000 to $20,000. Because of this loss
of revenue in the time period from March 1 to May 31, 2020,4 MLB seeks reimbursement of
insurance premium costs and vehicle financing costs for the period in the amounts of
$126,575.45 and $269,487.53, respectively.
Discussion
When ruling on a motion to dismiss for failure to state a claim, the Board will apply
“the same standard as would a federal trial court.”Williams Building Co. v. Department of
Veterans Affairs , CBCA 6559, 20-1 BCA ¶ 37,492 (quoting Amec Foster Wheeler
Environment & Infrastructure, Inc. v. Department of the Interior, CBCA 5168, et al., 19-1
BCA ¶ 37,272). This standard requires the complaint to allege facts that plausibly suggest
a showing of entitlement to relief. Id. Determining the type of contract is a matter of law
that is not controlled by a label in the contract. Systems Management & Research
Technologies Corp. v. Department of Energy , CBCA 4068, 16-1 BCA ¶ 36,333 (citing
Maintenance Engineers v. United States, 749 F.2d 724, 776 n.3 (Fed. Cir. 1984)).
The parties both acknowledge that the agreement was intended to be an indefinte
quantity contract but that it lacks a guaranteed minimum clause. See Appellant’s
Supplemental Response to Motion to Dismiss at 1. An indefinite quantity contract that lacks
a guaranteed minimum is illusory and unenforceable because the Government has not made
a binding promise regarding the minimum amount that it will purchase. Coyle’s Pest
Control, Inc. v. Cuomo , 154 F.3d 1302, 1306 (Fed. Cir. 1998); Systems Management .
“Without an obligatory minimum quantity, the buyer would be allowed to order nothing,
4 It is not clear from MLB’s appeal whether the vehicle financing costs are
limited to this time period. Notice of Appeal at 2.

CBCA 7019 4
rendering its obligations illusory and, therefore, unenforceable.”Torncello v. United States,
681 F.2d 756, 761 (Ct. Cl. 1982).
The contract also cannot be a requirements contract. The contract lacks FAR clauses
52.216-19 and 52.219-21. See 48 CFR 16.506(b), (d) (requirement to add clauses to a
requirements contract). Further, the contract does not require VA to order all wheelchair
transport services from MLB. See, e.g., Exhibit 5 at 7. A contract that lacks “the typical
FAR requirements contract clauses could not be interpreted as a requirements contract . . .
unless the contract language actually required the agency to purchase all of its requirements
from the contractor under that contract.”Systems Management.
MLB contends that its contract with the VA differs from Coyle’s Pest Control, Inc.
because its contract was a sole-source bridge contract. See Appellant’s Supplemental
Response to Motion to Dismiss at 1. That distinction does not provide a basis for enforcing
an illusory contract. Similarly, MLB’s expectations based upon the parties’ past dealings do
not address the illusory nature of the contract. See Appellant’s Response to Motion to
Dismiss at 3. Even though neither party likely foresaw the impact of the COVID-19
pandemic on this contract, the pandemic does not alter the interpretation of or create a basis
to reform the agreement entered into prior to the pandemic.
If the contract had been a proper indefinite quantity contract with a guaranteed
minimum clause, that minimum would have been the measure of the VA’s obligation.Travel
Centre v. Barram, 236 F.3d 1316, 1319 (Fed. Cir. 2001). While the contract at its inception
was not enforceable due to the lack of a minimum guarantee, it became valid and binding to
the extent that it was performed. Willard, Sutherland & Co. v. United States, 262 U.S. 489,
494 (1923); Coyle’s Pest Control, Inc., 154 F.3d at 1306; The Carrington Group, Inc. v.
Department of Veterans Affairs, CBCA 2091, 12-1 BCA ¶ 34,993. Thus, VA is obligated
to compensate MLB for the services that it actually provided based upon the contract terms.
MLB is not entitled to additional costs or anticipatory profits. Ralph Construction, Inc. v.
United States, 4 Cl. Ct. 727, 733 (1984); see also The Ducke Group, LLC v. Department of
Veterans Affairs, CBCA 3229, 13 BCA ¶ 35,337.
MLB did not allege in its claim or its notice of appeal that it had not been paid for
services rendered (i.e., rides provided). Instead, its claim is for indirect costs that it did not
and could not recover because VA ordered fewer rides than MLB expected. Since it has not
alleged a claim for costs of services that it provided, MLB has failed to state a claim upon
which relief can be granted, and, thus, we dismiss the appeal. We also deny MLB’s request
to amend its complaint. Because MLB did not allege in its claim that it had not been paid
for services rendered, we would lack jurisdiction over such a claim in this appeal. Scott
Timber Co. v. United States, 333 F.3d 1358, 1365 (Fed. Cir. 2003). MLB’s request to amend

CBCA 7019 5
is properly denied as futile. Crane & Co. v. Department of the Treasury, CBCA 4965, 16-1
BCA ¶ 36,539.
Decision
VA’s motion is granted. The appeal isDISMISSED FOR FAILURE TO STATE
A CLAIM.
Marian E. Sullivan
MARIAN E. SULLIVAN
Board Judge
We concur:
Allan H. Goodman Jonathan D. Zischkau
ALLAN H. GOODMAN JONATHAN D. ZISCHKAU
Board Judge Board Judge