DISMISSED FOR LACK OF JURISDICTION:  July 29, 2010 
CBCA 1865 
TENDERFOOT EQUIPMENT SERVICES, 
A p p e l l a n t , 
v.
   DEPARTMENT OF AGRICULTURE, 
Respondent. 
John Stephen Ward, Owner of Tenderfoot Equipment Services, Lakeview, OR, 
appearing for Appellant.  
Benjamin R. Hartman, Office of the General Counsel, Department of Agriculture, 
Portland, OR, counsel for Respondent. 
Before Board Judges GILMORE , VERGILIO, and POLLACK. 
GILMORE, Board Judge. 
Appellant, Tenderfoot Equipment Services (Tenderfoot), seeks to appeal the final 
decision of a contracting officer (CO) of the United States Department of Agriculture 
(USDA) denying appellant’s claim that USDA breached a blanket purchase agreement (BPA) 
by failing to offer water handling equipment dispatches to Tenderfoot in the manner set forth 
in the BPA. 

 
 
   
 
     
  
  
 
  
 
    
  
  
 
  
 
 
  
     
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After the appeal was docketed, USDA filed a motion to dismiss the appeal on the 
ground that the BPA is not itself a contract as required for Board jurisdiction under the 
Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 601-613 (2006).  USDA contends that 
a contract does not come into existence under a BPA until an equipment dispatch is offered 
by the Government and accepted by the contractor to which the offer was made, and that the 
Board has no jurisdiction to hear a protest by appellant that it was unfairly denied an offer 
under the BPA.  Appellant opposes the motion, contending that the BPA contained terms 
agreed upon by both parties and that it is unfair for USDA to now refer to the “contract” as 
only a non-binding agreement, when the solicitation referred to provisions in the agreement 
as “Contract Terms and Conditions.” As binding precedent from the Federal Circuit dictates, 
no contract arose from the BPA itself.  Accordingly, the Board does not have jurisdiction 
under the CDA to decide this appeal. 
Background 
On April 1, 2007, the USDA, Forest Service, issued a request for quotations (RFQ) 
to water handlers in Region 6 of the Forest Service, which includes the states of Oregon and 
Washington. The intent of the solicitation was to obtain water handling equipment services 
when needed for local, regional, and nationwide fire suppression.  Appeal File, Exhibit 1 
at 11. Tenderfoot was one of the companies that received the RFQ, and it submitted a price 
quotation to the USDA. 
The solicitation states that the BPA resulting from the solicitation will be in the form 
of an Emergency Equipment Rental Agreement which can be used by multiple state and 
federal agencies.  The solicitation further states that the solicitation will result in multiple 
award daily rate agreements with per-day prices and that “[d]ue to the sporadic occurrence 
of incident activity, the placement of any orders IS NOT GUARANTEED.”  Appeal File, 
Exhibit 1 at 11. 
In section D.5, AVAILABILITY, the solicitation provides that the contractor is 
responsible for maintaining its current status by informing its host dispatch center of its 
equipment availability, and that when contract equipment is not available, the equipment will 
not be eligible for dispatch under the BPA.  Appeal File, Exhibit 1 at 23. 
In section D.6, ORDERING PROTOCOL FOR EQUIPMENT, the solicitation 
provides that the BPA “does not preclude the Government from using any Agency or Agency 
Cooperator owned resources before equipment is mobilized” under the BPA.  It further 
provides that the contractor shall restrict calls to the host dispatch center only, and that 
dispatchers will not provide information such as “when or if the contractor will be called for 
an assignment” or “status of other contractors.”  Appeal File, Exhibit 1 at 23. 

    
  
  
 
 
  
 
   
 
  
  
  
 
 
    
 
 
 
  
        
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Section D.6.1, DISPATCH PRIORITY, provides that the host dispatch center will 
give priority to equipment offering the greatest advantage to the Government for emergency 
wildland fire suppression, all-hazard, and severity assignments, before all other private 
resources not under this agreement, with certain exceptions, such as the use of “closest 
forces” for initial attack, the use of  tribal preference policies within reservation jurisdictions, 
and the use of veteran-owned small businesses.  This provision further provides: 
Government normally will dispatch resources in accordance with this protocol; 
however, 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.   Any such deviation will be within the 
discretion of the Government, and will not be deemed a violation of any term 
or condition of this Agreement . 
Appeal File, Exhibit 1 at 23 (emphasis added). 
Sections D.6.2 and 6.3 provide that the contractor’s equipment will be ranked for 
purposes of dispatch priority, based on such factors as the mechanical condition of the 
engine, age, pump performance, and tank capacity, with each category being assigned a point 
value, which points will be used to determine a final dispatch priority number for the 
contractor’s equipment.  These sections further provide that after award, each host dispatch 
center will have an established priority dispatch list showing equipment located within its 
dispatch zone, and that the Government intends to dispatch equipment on this priority 
ranking for other than initial attack, with certain stated exceptions.  Appeal File, Exhibit 1 
at 23. 
The Emergency Equipment Rental Agreement, made a part of the solicitation, 
contains the following relevant provision:  
Since the equipment needs of the Government and availability of Contractor’s 
equipment during an emergency cannot be determined in advance, it is 
mutually agreed that, upon request of the Government, the Contractor shall 
furnish the equipment listed herein to the extent the Contractor is willing and 
able at the time of the order . 
Appeal File, Exhibit 1 at 35 (emphasis added). 
Tenderfoot responded to the RFQ and quoted a price of $1447 per day for its water 
handling equipment. Appeal File, Exhibit 1 at 8-10. On June 6, 2008, the USDA established 
a BPA with Tenderfoot for water handling services, agreement no. AG-04H1-C-8190, 

 
 
  
 
 
 
    
     
 
  
  
  
  
 
 
  
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effective until June 6, 2011.  The BPA incorporates all of the terms of the initial RFQ and 
Tenderfoot’s proposal. 
Appellant was originally ranked number eleven on the dispatch priority list maintained 
by the dispatch host center in its dispatch zone, and allegedly due to an error made by the 
Forest Service when it was updating the dispatch priority list, Tenderfoot was inadvertently 
dropped from number eleven to number twenty-three, when it should have remained at 
number eleven.  Tenderfoot immediately notified the USDA and the dispatch center of the 
error.  Appellant alleges that because of initial inaction on the part of persons responsible for 
correcting the list, it took approximately six days to correct the error, and that during this 
period, dispatches were offered to companies with a lower ranking than Tenderfoot when 
they should have been offered to Tenderfoot. 
On November 10, 2009, Tenderfoot filed a claim with the USDA CO alleging that 
USDA did not dispatch equipment orders in the manner stated in the agreement, which 
caused Tenderfoot to lose six days of equipment rentals at $1447/day, for a total loss of 
$8682. 
Respondent’s Motion to Dismiss for Lack of Jurisdiction 
Respondent has moved the Board to dismiss appellant’s claim for lack of jurisdiction 
on the ground that the BPA entered into between the parties is not itself an express or implied 
contract which is required for jurisdiction under the CDA.  Respondent cites Ridge Runner 
Forestry v. Veneman, 287 F.3d 1058 (Fed. Cir. 2002), as legal precedent for this issue.  In 
Ridge Runner , the Court of Appeals for the Federal Circuit held that a BPA almost identical 
to the one in this appeal is not a binding contract, because the contractor’s promise to provide 
services only if it was “willing and able” was an illusory promise and, therefore, insufficient 
to form a binding contract. Id. at 1062.  Appellant counters that it agreed to have its 
equipment available and in the required mechanical condition; that it submitted a price 
acceptable to USDA, and that the USDA agreed to dispatch tenders according to a dispatch 
priority list.  Appellant argues that it considered the BPA to be a binding agreement on price, 
equipment availability, and dispatch requirements, and that because the USDA did not 
dispatch orders in the manner set forth in the BPA, it caused Tenderfoot to lose expected 
work.  Tenderfoot argues that the solicitation commonly refers to “contract terms and 
conditions,” “contractor,” and “contracting officer” and, thus, Tenderfoot believed that the 
equipment rental agreement was a binding contract. 

  
    
        
 
  
 
  
 
 
 
   
  
     
   
  
 
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Discussion 
The CDA governs the resolution of disputes between executive agencies and private 
contractors related to procurement contracts.  The Board’s jurisdiction arises from section 
3(a) of the CDA, which limits appeals to those relating to an express or implied contract 
entered into by an executive agency for the procurement of services and property, other than 
real property, and the disposal of personal property.  41 U.S.C. § 602(a). 
The question here is whether the BPA entered into between appellant and the USDA 
is an express or implied contract for purposes of invoking Board jurisdiction under the CDA. 
We agree with respondent that the Emergency Equipment Rental Agreement is a BPA and 
is not a contract subject to Board jurisdiction.  As explained in the Federal Acquisition 
Regulations (FAR), 48 CFR 16.703(a) (2009): 
A basic ordering agreement is a written instrument of understanding, 
negotiated between an agency, contracting activity, or contracting office and 
a contractor, that contains (1) terms and clauses applying to future contracts 
(orders) between the parties during its term, (2) a description, as specific as 
practicable, of supplies or services to be provided, and (3) methods for pricing, 
issuing, and delivering future orders under the basic ordering agreement.  A 
basic ordering agreement is not a contract. 
Here, when a company provides a quote in response to the RFQ, if it is determined 
that the company meets the standards required for providing the services and the quotation 
is reasonable, that company is awarded an Emergency Equipment Rental Agreement which 
the solicitation states is simply a BPA.  The BPA provides the basic agreement as to how 
dispatches will normally be made and what terms and conditions would govern any contract 
entered into as a result of the Government offering a dispatch to a contractor and the 
contractor agreeing to provide the equipment. A contract does not come into existence until 
the Government dispatches an equipment order and the contractor accepts that dispatch. 
Appellant argues that the use of the words “agreement,” “contractor” and “contract terms and 
conditions” in the solicitation and resulting BPA led it to reasonably believe that a binding 
contract arose.  However, the use of the words “contractor” and “contract terms and 
conditions” in the BPA does not make the BPA itself a binding contract.  The first paragraph 
of the Emergency Equipment Rental Agreement clearly states: 
Since the equipment needs of the Government and the availability of 
Contractor’s equipment during an emergency cannot be determined in 
advance, it is mutually agreed that, upon request of the Government, the 
Contractor shall furnish the equipment listed herein to the extent the 

 
 
 
   
 
  
    
  
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6 CBCA 1865 
Contractor is willing and able at the time of order . . . . When such equipment 
is furnished to the Government, the following provisions shall apply . 
Appeal File, Exhibit 1 at 35 (emphasis added).  
In Ridge Runner , the Court of Appeals for the Federal Circuit considered a similar 
equipment rental agreement between the USDA and a water tender company, and concluded 
that the agreement was not a contract. The Court upheld the dismissal of that appeal for lack 
of jurisdiction.  287 F.3d at 1062.  The equipment agreement in that case contained the same 
“willing and able” language as is found in this agreement.  Id . at 1060.  As the Federal 
Circuit noted: “It is axiomatic that a valid contract cannot be based upon the illusory promise 
of one party, much less illusory promises of both parties.”  Id. at 1062. 
As with the agreement considered by the Court, here, the appellant was not obligated 
to accept a government offer.  Consistent with the Court’s opinion and the FAR, we conclude 
that no contract arose under the BPA itself and, thus, we have no jurisdiction to decide the 
appeal.  We grant respondent’s motion to dismiss. 
Decision 
The appeal is DISMISSED FOR LACK OF JURISDICTION . 
BERYL S. GILMORE 
Board Judge 
We concur: 
JOSEPH A. VERGILIO HOWARD A. POLLACK 
Board Judge Board Judge