DISMISSED FOR LACK OF JURISDICTION: June 21, 2013
CBCA 3081
HART VENTURES, INC.
d/b/a A-1 FIRE SERVICES,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
Alvern Charles Weed, Kalispell, MT, counsel for Appellant.
Jennifer T. Newbold, Office of the General Counsel, Department of Agriculture,
Missoula, MT, counsel for Respondent.
Before Judges DANIELS (Chairman), SOMERS, and GOODMAN.
GOODMAN, Board Judge.
Appellant, Hart Ventures, Inc. dba A-1 Fire Services (appellant), has filed this appeal
from the contracting officer’s decision.  The Department of Agriculture (respondent) has
moved to dismiss the appeal for lack of jurisdiction.  We grant the motion and dismiss the
appeal.
Background
On April 28, 2010, respondent entered into blanket purchase agreement no.
AG-0343-B-10-7042 (the agreement) with appellant.  Under the agreement, appellant made


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available water tender equipment for wildland fires when accepting dispatch orders for
resources to suppress fires.  Appeal File, Exhibit 1 at 29. 
The agreement contained the following language:
PRICING AND ESTIMATED QUANTITY
This solicitation will result in multiple agreements.  The dollar limitation for
any individual order is $150,000.  Since the needs of the Government and
availability of Contractor's resources during an emergency cannot be
determined in advance, 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.
Id.
Respondent’s contracting officer issued a decision dated August 23, 2012, terminating
the agreement.  The decision read in relevant part:
On August 15, 2012 I verbally informed you that your agreement, AG-0343-B-
-10-7042 was suspended from receiving any further resource orders with the
intention of terminating this agreement when all resources currently on
assignment are released.  This letter is to inform you that your agreement is
formally terminated in its entirety for the following reasons.
Appeal File, Exhibit 1.  The decision alleged three reasons for termination of the agreement,
stated that it was a final decision of the contracting officer, and advised appellant of appeal
rights to this Board and to the United States Court of Federal Claims.  Id.
Appellant appealed the contracting officer’s termination of the agreement to this
Board.  In its complaint, appellant asserts that the agreement, a blanket purchase agreement,
was a contract under which multiple orders were placed.  Complaint ¶ 7.  Appellant also
states that it accepted a dispatch order to provide fire services at the Rosebud Complex fire
on August 2, 2012.  Relief sought by appellant included conversion of the termination for
cause to a termination for the convenience of the Government, payment to appellant of all
costs allowable pursuant to a termination for convenience, including payment for services
performed, and costs allowable, but as yet unpaid, under the terminated contract.

CBCA 3081 3
Discussion
Respondent has filed a motion to dismiss the appeal, asserting that the agreement does
not constitute a contract and therefore, the Board lacks jurisdiction over this appeal.
Appellant maintains that the agreement is a contract, as it incorporates Federal
Acquisition Regulation contract clauses.  Appellant also notes that the contracting officer
issued a final decision advising the contractor of its right to appeal the decision.  Appellant
concludes that because a termination for cause is considered to be a government claim
against a contractor, the agreement must be a contract.  If it is not, then the Board should
reform the agreement and make it a contract.  Alternatively, appellant argues that respondent
should be estopped from denying that the agreement is a contract as respondent treated the
agreement as such.
Appellant’s arguments fail with regard to the agreement.  Interpreting blanket
purchase agreements containing language substantially similar to that included in the
agreement at issue, this Board, its predecessor boards of contract appeals, and courts have
concluded that such agreements are not contracts as they do not manifest the necessary
mutuality of consideration required for an enforceable contract.  In reaching this conclusion,
the decisions refer specifically to the language in the agreements that states that the
Government does not guarantee the placement of orders under the agreement and allows the
“contractor” to furnish resources when an order is placed to the extent the contractor is
“willing and able.”
Thus, the agreements are not contracts because neither party is obligated to perform.
The Government is not required to place any orders, nor is the contractor required to furnish
resources in response to any order placed.  As the agreements are not contracts, the boards
and courts conclude that contracting officer decisions terminating the agreements are not
appealable under the Contract Disputes Act, even though they might be phrased as
contracting officer final decisions.  Ridge Runner Forestry v. Veneman, 287 F.3d 1058 (Fed.
Cir. 2002); Crewzers Fire Crew Transport, Inc. v. United States, No. 12-064C (Fed. Cl.
May 31, 2013); Crewzers Fire Crew Transport, Inc. v. United States, 98 Fed. Cl. 71 (2011);
Dr. Lewis J. Goldfine v. Social Security Administration, CBCA 2549, 12-1 BCA ¶ 34,926;
Tenderfoot Equipment Services v. Department of Agriculture, CBCA 1865, 10-2 BCA ¶
34,527; Columbia Coach Service, Inc. v. Department of Agriculture, CBCA 587, 07-2 BCA
¶ 33,584; Petersen Equipment, AGBCA 94-163-1, et al., 95-2 BCA ¶ 27,676; Ann Riley &
Associates, Ltd., DOT BCA 2418, 93-3 BCA ¶ 25,963.
As the agreement is not a contract, the Board lacks jurisdiction over the appeal.  The
Board has no authority to reform the agreement to make it a contract, nor does the fact that

CBCA 3081 4
a termination is generally considered to be a government claim with regard to a contract
transform the terminated agreement into a contract.
Appellant makes additional arguments with regard to the dispatch orders issued
pursuant to the agreement.  Appellant asserts that the termination of the agreement resulted
in the cessation of work under two dispatch orders that had been previously offered by
respondent and accepted by appellant.  Appellant notes that respondent acknowledges in its
motion that a binding contract arises when a dispatch order is offered and accepted under the
agreement at issue.  Appellant therefore argues:
In light of the fact that the termination action and Final Decision should have
been directed at the actual contracts, i.e., the accepted dispatch orders, the
failure of the [respondent] to do so renders the Contracting Officer’s Final
Decision, which was directed against the [agreement], defective.  Therefore,
the Board should deem the appeal filed against the termination of the
[agreement] to have been filed against the contemporaneous constructive
termination of the said dispatch orders, and find jurisdiction on that basis.
It is true that a contract is formed between a contractor and the government when two
conditions are met: an order must be placed under the agreement, and the contractor must
accept that order.  Tenderfoot.  Therefore, the dispatch orders accepted by a contractor, if
such exist, may be contracts.  Even so, this Board cannot deem the termination of the
agreement to be the termination of any accepted dispatch orders.  If appellant has claims for
payment of services rendered and costs incurred in the performance of dispatch orders, these
claims must be presented to the contracting officer and addressed in a contracting officer’s
decision before they can be considered by this Board.  These claims were not addressed in
the contracting officer’s decision that is the subject of this appeal. 

CBCA 3081 5
Decision
The respondent’s motion to dismiss the appeal FOR LACK OF JURISDICTION
is granted.  The appeal is DISMISSED.
__________________________
ALLAN H. GOODMAN
Board Judge
We concur:
___________________________ __________________________
STEPHEN M. DANIELS JERI K. SOMERS
Board Judge Board Judge