DISMISSED FOR FAILURE TO STATE A 
CLAIM UPON WHICH RELIEF MAY BE GRANTED: May 29, 2014
CBCA 3537
MUSE BUSINESS SERVICES, LLC,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Respondent,
Anthony L. Washington, Washington, DC, counsel for Appellant.
William J. Erle, Office of Chief Counsel, Office of the Comptroller of the Currency,
Department of the Treasury, Washington, DC, counsel for Respondent.
Before Judges SOMERS, STERN, and DRUMMOND.
DRUMMOND, Board Judge.
Muse Business Services, LLC (Muse) alleges that the Office of the Comptroller of the
Currency (OCC), a bureau within the Department of the Treasury, breached a written
contract, in the form of a blanket purchase agreement (BPA), and seeks damages totalling
$333,672.89.  The OCC has moved to dismiss the appeal for lack of jurisdiction.  The OCC
maintains that the Board lacks jurisdiction over the appeal because no contract exists between
Muse and the OCC.  Muse opposes the OCC’s motion.  
We find that the OCC is correct that no contract exists between the parties.  Absent
a contract, we must dismiss the appeal for failure to state a claim upon which relief may be
granted, rather than for lack of jurisdiction. 

CBCA 3537 2
Background
On February 16, 2010, the OCC issued request for quotes (RFQ) 438505, seeking
multiple service providers for non-personal litigation support services for a five-year period. 
The RFQ called for prospective service providers “to propose fully burdened fixed unit
prices by task, as identified in the Performance Work Statement.”
On August 1, 2010, the OCC established BPAs with Muse and another service
provider.  Both BPAs are identical and incorporated the terms of the RFQ.  Part 1.1 of the
BPA, “Pricing,” states, in part, that “[t]his BPA does not obligate any funds.  The terms and
conditions included in this BPA apply to all purchases made pursuant to it.” 
The BPA states that each task call will have its own specific statement of work.  Part
2.8 of the BPA, “Frequency of Calls,” states that the “OCC estimates [that] it will issue 20
task calls a year.”  The OCC asserts that the estimate is a “good faith estimate made by the
requiring activity” and based on the number of calls placed against an earlier BPA.  Muse
alleges that based upon the estimate, it expected to receive several orders per year.  The BPA
does not guarantee the award of any specific number of orders during any given year, nor
does it require the OCC to order from Muse. 
Part 3.0 of the BPA, “Subsequent Order Procedures,” states, in part: “[F]or all calls
against the BPA, the OCC will forward the requirements to all BPA holders for quote.” 
Although the BPA provides procedures for the OCC to follow in accepting a quote, it
contains no requirement that Muse or the other service provider submit quotes for task calls
against the BPA.
The BPA also included an information security clause that stated the “service provider
shall maintain a computing environment with adequate security at all times.”  The OCC states
that because the BPA is a framework for future contracts, the requirement to maintain
security “at all times” means at all times when performing under an OCC task call issued
against the BPA.  Muse alleges that it incurred costs complying with this requirement. The
BPA contains no provision for reimbursing Muse for those costs.  
On October 18, 2010, the OCC issued its first task call requesting a quote from Muse
and the other service provider.  The instructions stated that “the OCC requests a Firm-Fixed
Price Quote for the attached BPA Call Requirement.”  After evaluating the quotes, the OCC
awarded this order to the other service provider.  Subsequently, the OCC issued two
additional RFQs which also resulted in contracts awarded to the other service provider. 

CBCA 3537 3
On June 19, 2012, Muse wrote to the OCC, requesting that it provide Muse with
information concerning future task call requirements.  By email message dated June 27,
2012, the OCC responded that the information concerning future task calls was being
evaluated.  The OCC promised to notify Muse as to any future updates.
On April 29, 2013, Muse submitted to the OCC a certified claim asserting that the
OCC had breached the BPA.  Muse sought breach damages totaling $333,672.891 for costs 
that it incurred in anticipation of orders.  The OCC denied Muse’s claim, stating, in part, that
Muse’s BPA:
is neither an indefinite delivery, indefinite quantity (IDIQ) nor requirement
type contract, and as such there is no guaranteed minimum quantity. 
Additionally, because a BPA, such as the one involved in this case, lacks
mutuality of consideration (or, said another way, does not create binding rights
and obligations), it is not itself a contract. 
Muse filed a timely appeal and complaint.  Muse’s complaint argues that the BPA was
a binding contract that placed specific obligations upon the OCC; namely, the OCC was
obligated to provide Muse and the other service provider with “task order” opportunities and,
in return, Muse and the other service provider were to provide quotes and be ready to
perform future orders.  Muse’s complaint alleges further that the OCC breached the contract
by issuing an improper and bad faith estimate and the OCC breached its covenant of good
faith and fair dealing by refusing to provide Muse with information concerning future orders. 
Discussion
Muse alleges that the OCC breached a written contract, the BPA.  To prevail, Muse
must establish both the existence of a contract and its breach.  United States v. Winstar Corp.,
518 U.S. 839, 871-72 (1996); Anderson v. United States, 344 F.3d 1343, 1353 (Fed. Cir.
2003).  The OCC denies the existence of a contract with Muse and argues that the Board
lacks jurisdiction to grant the requested relief.
1  Muse’s damages included bid and proposal costs, lease space, equipment, and
salaries. 

CBCA 3537 4
Jurisdiction
The Court of Appeals for the Federal Circuit has instructed that where a plaintiff
alleges the existence of a contract between it and the Federal Government, a court or board
of contract appeals has jurisdiction to consider the case.  Engage Learning, Inc. v. Salazar,
660 F.3d 1346, 1353 (Fed. Cir. 2011); see JRS Management v. Department of Justice, CBCA
2475, 12-1 BCA ¶ 34,962.  There is no question that Muse pled the existence of a valid
contract.  The proper question, despite Muse’s label, is whether Muse has stated a claim upon
which relief can be granted.  In this case, construing the OCC’s motion as a motion to
dismiss for failure to state a claim does not prejudice Muse, since the critical issue of whether
a contract was formed remains the same and has been fully briefed by the parties. 
Accordingly, we treat the OCC’s motion as a motion to dismiss for failure to state a claim.
Failure to State a Claim
We must accept as true the complaint’s undisputed factual allegations and should
construe them in a light most favorable to appellant.  However, if a contractor asserts facts
that, even if true, would not entitle it to relief, then dismissal for failure to state a claim upon
which relief can be granted is appropriate.  Conley v. Gibson, 355 U.S. 41, 45-46 (1957). 
Therefore the question here is whether Muse presented a well-pled allegation that the BPA
between Muse and the OCC constituted a binding contract so as to establish a claim over
which we possess jurisdiction.
Muse concedes that BPAs are generally not considered contracts, but asserts that this
BPA was a binding contract because it placed specific obligations on the parties.  Muse
maintains  that the OCC was obligated to provide Muse and the other service provider with
“task order” opportunities and, in return, Muse and the other service provider were to provide
quotes and be ready to perform future orders.  Muse asserts further that the OCC breached
the contract by issuing an improper and bad faith estimate and breached its covenant of good
faith and fair dealing by refusing to provide Muse with information concerning future orders.
  
The OCC’s view is different.  The OCC maintains that the BPA lacks mutuality of
intent and consideration, and therefore is not a contract.  We agree with the OCC.
Interpreting BPAs containing language substantially similar to that included in this
agreement, this Board, its predecessor boards, and the courts have consistently found that
BPAs are not contracts, as they do not manifest the necessary mutuality of consideration
required for an enforceable contract.   See Crewzers Fire Crew Transport, Inc. v. United
States, No. 2013-5104 (Fed. Cir. Feb. 6, 2014) (affirming Court of Federal Claims decision
that a BPA is not a binding contract); Ridge Runner Forestry v. Veneman, 287 F.3d 1058,

CBCA 3537 5
1062 (Fed. Cir. 2002) (citing Restatement (Second) of Contracts § 71(1)); see also Modern
Systems Technology Corp. v. United States, 24 Cl. Ct. 360, 362 (1991), aff’d, 979 F.2d 200
(Fed. Cir. 1992); Hart Ventures, Inc. v. Department of Agriculture, CBCA 3081, 13 BCA
¶ 35,336; Dr. Lewis J. Goldfine v. Social Security Administration, CBCA 2549, 12-1 BCA
¶ 34,926.  In reaching this conclusion, the decisions observed that the agreements are not
contracts because neither party was obligated to perform. 
Unlike the case cited by Muse, Ace-Federal Reporters, Inc. v. Barram, 226 F.3d 1329
(Fed. Cir. 2000), which found consideration in the context of a requirements contract, this
BPA did not obligate any funds or require the OCC to order only from Muse and the other
service provider.  While the BPA did provide that “[f]or all calls against the BPA, the OCC
will forward the requirement to all BPA holders for quote,” neither this provision nor any
other in the BPA required Muse to respond with a quote.  Muse’s choice to submit a quote
did not place an obligation on the OCC.  See Ridge Runner Forestry, 278 F.3d at 1062.
Likewise, Muse’s choice to incur costs in preparation for future orders did not place an
obligation on the parties.  Muse assumed the risk of not receiving task calls and the
associated opportunity to recoup it costs.  Potomac Computers Unlimited, Inc. v. Department
of Transportation, DOT CAB 2603, 94-1 BCA ¶ 26,304 (1993).  This BPA unambiguously
limited the OCC’s liability to future purchases.  See Crewzers Fire Crew Transport, Inc. v.
United States, 98 Fed. Cl. 71, 79 (2011) (quoting Zhengxing v. United States, 204 F. App’x
885, 886-87 (Fed. Cir. 2006)).  Likewise, as the BPA contained no assurances of recouping
preparation costs, Muse’s choice to incur costs in anticipation of future calls represents the
cost of doing business.  Simply put, Muse assumed the risk of not receiving task call orders
and the associated opportunity to recoup preparation costs. “It is an axiomatic that a valid
contract cannot be based upon the illusory promise of one party, much less the illusory
promise of both parties.”  Ridge Runner Forestry, 278 F.3d at 1062. 
        Muse’s remaining breach claims are dependent on an underlying contractual relationship
that does not exist.  Muse’s claim that the OCC issued an improper and bad faith estimate
and is therefore liable for breach of contract must be dismissed for failure to state a claim
because no contract exists.  Likewise, Muse’s claim that the OCC breached the covenant of
good faith and fair dealing must also be dismissed for failure to state a claim.  The “implied
obligation of good faith and fair dealing must attach to a specific substantive obligation,
mutually assented to by the parties.”  Alaska v. United States, 35 Fed. Cl. 685, 704 (1996),
aff’d, 119 F.3d 16 (Fed. Cir. 1997) (table).  Since the BPA is not a binding contract, it cannot
give rise to a breach of the implied covenant of good faith and fair dealing.  We must
therefore dismiss the case for failure to state a claim upon which relief may be granted.

CBCA 3537 6
Decision
This case is DISMISSED FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED.
__________________________
JEROME M. DRUMMOND
Board Judge
We concur:
__________________________ ___________________________
JERI KAYLENE SOMERS JAMES L. STERN
Board Judge Board Judge