MOTION FOR SUMMARY RELIEF 
GRANTED IN PART: September 25, 2018
CBCA 5764
FUTURE FOREST, LLC,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
Alan I. Saltman of Smith, Currie & Hancock, LLP, Washington, DC, counsel for
Appellant.
Randall J. Bramer and Lori Polin Jones, Office of the General Counsel, Department
of Agriculture, Washington, DC; and Andrew Moore, Office of the General Counsel,
Department of Agriculture, Albuquerque, NM, counsel for Respondent.
Before Board Judges VERGILIO, SHERIDAN, and ZISCHKAU.
Opinion for the Board by Board Judge SHERIDAN.  Board Judge VERGILIO concurs in
part.
The appellant, Future Forest, LLC (Future Forest), seeks to recover for what it asserts
is the failure of the United States Department of Agriculture, Forest Service (the Forest
Service) to release the proper amount of contractually required acres under the White


CBCA 5764 2
Mountain Stewardship contract (WMSC).1  Under the contract, Future Forest was to be paid
a range of prices to treat and remove small diameter trees and biomass.  In count I of CBCA
5764, Future Forest seeks $1,115,645.69 for the alleged gross lost profit it claims as a result
of the Forest Service’s failure to release the guaranteed annual minimum of 5000 acres in
program years eight and ten of the contract.  In count II, appellant seeks $14,743,430.72 for
the alleged gross lost profit it claims as a result of the Forest Service’s failure to release the
150,000 acres that appellant claims it was entitled to under the WMSC. 
The Forest Service has moved for summary relief, urging the Board to deny CBCA
5764.  The Forest Service argues that it met and exceeded the WMSC’s unambiguous terms
requiring it to release 50,000 acres when it released 71,000 acres over the ten years of the
contract.  Alternatively, the Forest Service argues that it released the annual minimum in all
but the tenth year of performance, and that it will pay Future Forest for the shortfall in year
ten. 
In CBCA 5863, appellant seeks $14,743,430.72, alleging that the Forest Service
breached the implied duty of good faith and fair dealing required under the WMSC.  CBCA
5863 is not currently before the Board on motion for summary relief.
The facts of the case reveal that while some individuals in Future Forest and the
Forest Service believed the Forest Service originally intended to release 150,000 acres over
the ten-year term of the WMSC, under the terms of the contract itself, the Forest Service
guaranteed to release only 5000 acres each program year.  Prior to award, the solicitation was
amended to make even clearer the annual 5000 acre minimum guarantee.  Also, shortly after
contract award, the WMSC was bilaterally modified to allow the Forest Service to achieve
that annual minimum guarantee using an agreed upon equivalent in tons of material,
whichever came first.  For the reasons below, we conclude that the Forest Service was only
required to release 5000 acres or its equivalent in tons, and partially grant the Forest
Service’s motion for summary relief.
Background
The White Mountain Stewardship Project (WMSP) was the first project of its kind for
the Forest Service.  Recognizing that the Apache-Sitgreaves National Forest constituted a
very dense forest that was unstable and vulnerable to intense wildfires, the Forest Service
1 In this decision we refer to the document proffered by the Forest Service as the
WMSC although Future Forest posits that the document it used during performance was not identical
to what the Forest Service asserts was the WMSC.  The differences, and which differences are
material, are discussed later.

CBCA 5764 3
sought a way to procure long-term services that provided a range of solutions to reduce the
effects of wildfire.  The Forest Service settled on the idea of a stewardship project.  During
project formation, the Forest Service discussed treating 150,000 acres of forest at a rate of
15,000 acres a year.  However, when it ultimately issued the request for proposals (RFP) on
the project, RFP-R3-01-04-10, the Forest Service elected to include in the RFP a minimum
guarantee of only 5000 acres a year.   RFP provision B.1.0 provided, in pertinent part:
Minimum Guarantee:  The Government will guarantee a minimum for each
program year of work of 5,000 (five thousand) acres of forest land that is in
need of landscape biomass management with approved environmental
analysis.
The RFP informed prospective offerors that WMSP was being procured as an
indefinite delivery indefinite quantity (ID/IQ) contract “with the release of acres by issuance
of task orders based on the availability of funding each year for 10-years.”  The RFP included
the clauses found in Federal Acquisition Regulation (FAR) 52.216-22, Indefinite Quantity
(OCT 1995) (48 CFR 52.216-22) (2018)), as well as FAR 52.216-18, Ordering (OCT 1995)
(48 CFR 52.216-18); FAR 52.216-19, Order Limitations (OCT 1995) (48 CFR 52.216-19);
and FAR 52.217-2, Cancellation Under Multi-Year Contracts (OCT 1997) (48 CFR 52.217-
2). 
While setting forth a minimum annual guarantee of only 5000 acres, the original scope
of project in the RFP noted that “[t]he Government anticipates releasing approximately
150,000 acres by the end of the contract . . . [and] approximately 15,000 acres at regular
intervals.”  The original scope of project also stated: “To reach the end result of 150,000
acres by the end of the contract, the Government may release up to 25,000 acres maximum
at the regular annual interval.”2
2 Section C of the RFP contained background on the Apache-Sitgreaves National Forest
and the WMSP.  Several standard contracting definitions were set forth in RFP provision C.4.1:
Indefinite Delivery/Indefinite Quantity (ID/IQ): “Task Order Contract” for
services that does not procure or specify a firm quantity of services (other than a
minimum or maximum quantity) and that provides for the issuance of orders for the
performance of tasks during the period of the contract.
Volume Estimate.  The estimated volumes of timber by species designated for cutting, and expected
to be cut under Utilization Standards listed in Section C.4.4. and on subsequent Task Orders after
award.  The estimated volumes are not to be construed as guarantees or limitations of the timber

CBCA 5764 4
In response to questions asked by potential offerors on March 28, 2004, the Forest
Service responded:  
The Forest Service will make efforts to ensure that 15,000 NEPA approved
acres will be available to the successful offeror each year with 5,000 acres
guaranteed per year and 150,000 over the term of the contract.
On May 6, 2004, amendment 5 to the solicitation was issued further clarifying the
minimum guarantee of 5000 acres but also changing the 150,000 acres to a total of 50,000
acres over the ten program years of the contract:
Minimum Guarantee:  The Government will guarantee a minimum, for each
program year of work, of 5,000 (five thousand) acres for a total of 50,000
acres over the 10 year term of the contract of forest land that is in need of
landscape biomass management with approved environmental analysis.  Forest
Service has completed approximately 30,000 acres of the environmental
analysis process, including all required environmental approvals.  An
additional 5,000 acres are included from the Rodeo-Chediski Environmental
Impact Statement (EIS), which was recently released, but is subject to appeals. 
Additional environmental analysis is being prepared to provide at least two (2)
years of project work in advance of the issuance of task order for each contract
year.
Amendment 7 was issued on June 3, 2004, to replace the statement in the original
RFP’s scope of project referring to the Forest Service releasing “[a]pproximately 15,000
acres at regular intervals . . . to reach the end result of 150,000 acres by the end of the
contract.”  Amendment 7 adjusted downward the 150,000 acres to 50,000 acres and read:
The awarded Contractor shall provide necessary expertise, supervision, labor,
equipment, tools, materials, supplies, transportation, and services to perform
Biomass Management that may include tree removal, treatment of existing
slash and dead trees, erosion control, resource protection, and haul road
maintenance, as examples of the type of work for the Apache-Sitgreaves
National Forest for a period of ten (10) years for a minimum guaranteed
acreage of 5,000 acres per year for a total of 50,000 acres from the date of
award under the Stewardship Authority.  It is desired that approximately
150,000 acres will be treated with a combination of treatments with the end
volumes to be designated for cutting under the terms of this contract.

CBCA 5764 5
result of complete removal of all residue generated by the performance of this
contract.  
After all eight RFP amendments were issued, the RFP clearly stated that the contract
would be issued for “a minimum guaranteed acreage of 5,000 acres per year for a total of
50,000 acres” over the ten years of contract, but that the Forest Service “anticipated”
releasing “approximately 15,000 [acres] at regular annual intervals through the use of task
orders” and planned for “150,000 acres to be treated during the ten year term of the contract.”
Future Forest’s general manager, Dwayne Walker, in his declaration of December 5,
2017, says that he understood the RFP to state that “each year the [Forest Service] would
issue task orders totaling between 5,000 and 25,000 [acres] to meet the total of 150,000 over
the term of the contract.”  Mr. Walker asserts that in addition to the 5000 acres per year, the
original RFP “also guaranteed that the [Forest Service] would order 150,000 or more acres
over the 10-year term of the contract, but that the contractor was not required to harvest more
than 150,000 acres.”  (Emphasis added.)  Mr. Walker relates his pre-award impression when
the Forest Service amended the RFP:
[W]e at [Future Forest] were taken aback when, on May 6, 2004, the [Forest
Service] amended the original RFP to say “the Government will guarantee a
minimum, for each program year of work, of 5,000 (five thousand) acres for
a total of 50,000 acres over the term of the contract . . . .”  Our concerns were,
however, lessened by numerous statements after that from the Administrative
Contracting Officer [ACO] (Rufus Cole) as well as the Forest Supervisor
(Elaine Zieroth) and her contracting staff, that the [Forest Service] would still
treat 150,000 acres over the term of the contract.  [ACO] Cole specifically told
me “don’t worry, the amendment is only to make the Regional Forester feel
better, we’re still going to release 150,000 acres.”
12.  Whenever I mentioned to [ACO] Cole that the Forest Service appeared to
be off schedule for meeting its obligation to provide us with 150,000 acres, he
told me that if, toward the end of the contract, the [Forest Service] were still
off schedule that it would issue additional task orders so that 150,000 acres
were ordered.
Mr. Walker declares that similar statements were made “numerous times” by ACO Cole after
contract award. 
One offeror, Joseph Papa, the executive director of the White Mountain Regional
Development Corporation, noted in his declaration of December 20, 2017, that he seriously

CBCA 5764 6
considered not submitting a proposal on the solicitation when the Forest Service “amended
the RFP to reduce the minimum number of acres to be ordered during the term of the contract
from 150,000 to 50,000,” but, “[o]ur thoughts changed after we received assurances from the
Forest Supervisor, the Contracting Officer and the contracting staff that it was still the Forest
Service’s intention to provide 150,000 acres under the contract.”
In a declaration of December 19, 2017, Martin Devere, who was hired as a consultant
to White Mountain Forestry, LLC, another prospective offeror, recalls: 
I remember being extremely surprised in May of 2004, when the Forest
Service amended the original RFP to say “the Government will guarantee a
minimum for each program year of work, of 5,000 (five thousand) acres for
a total of 50,000 acres over the term of the contract.
14.  However, subsequent to the issuance of that amendment, meetings were
held with the Forest Service . . . [and] potential offerors (including the group
represented by Mr. Walker) . . . were assured by Forest Service personnel,
including the contracting officer, Forest Supervisor and some of the
contracting staff on the forest, that the Forest Service would still treat 150,000
acres over the term of the contract.
ACO Cole notes in his declaration of December 11, 2017, that he was involved in the
source selection and other pre-award matters relating to the WMSC and was the ACO from
early 2004 to approximately 2011.  ACO Cole declares that he never told Mr. Walker or
anyone else at Future Forest that the contract required the Forest Service to release 150,000
acres, and that he is not aware of any one else in the Forest Service who would have made
such an assertion.3 
Section C.2.0 of the RFP warned offerors that, “notwithstanding any remarks or
clarifications given at the [pre-award] conference, all terms and conditions of the solicitation
remain unchanged unless they are changed by amendment to the solicitation.  If the answers
to conference questions or any solicitation amendment, create ambiguities, it is the
responsibility of the Offeror to seek clarification prior to submitting an offer.”4
3 Although the parties dispute what was said in conversations between ACO Cole and
Mr. Walker, what was discussed has not been shown to be material to this decision.
4 This verbiage was also set forth in the contract.

CBCA 5764 7
Future Forest’s initial proposal was submitted on June 18, 2004, and was based on the
Forest Service releasing 5000 acres per year.  The Standard Form (SF)-33 (Solicitation, Offer
and Award Page) was signed by Mr. Walker, with block 14 acknowledging the amendments
to the RFP.5  The technical proposal stated:
e. Work Plan and Schedule.  Assuming 5,000 acres are available per year, after
task orders are issued, mobilization would begin within a week with two crews
if the areas are available.  Work would be scheduled 9 hours per day, 5 days
per week and average production would be about 12 acres per day per crew. 
After evaluation of the initial proposal, the Forest Service started discussions with
Future Forest and requested that Future Forest explain how it planned to treat the minimum
5000 acres per year “[g]iven that the guaranteed minimum of this solicitation is 5,000 acres
but with the chance that acres ordered could range up to 25,000 acres in any given year.”
(Emphasis added.)    Future Forest’s response to the project evaluation panel’s question was
submitted on June 29, 2014, representing: “for planning purposes, Future Forest LLC has
developed a standard model utilizing 5,000 acres within the Apache-Sitgreaves National
Forest.”  When Future Forest was questioned about its proposal pricing, it explained to the
Forest Service that to obtain a better market value for some material, “the Forest Service will
need to guarantee availability of 15,000 acres or more.”  In its alternative proposal Future
Forest represented that “[c]urrently there is no market value in 95% of the material.”  The
alternative proposal went on to focus on the need for the Forest Service to provide a “ten year
assurance of acres at the 15,000 acre per year level” to obtain better pricing.  There is no
indication in the record that the Forest Service pursued discussions on the alternative
proposal or in any way guaranteed the 15,000 acre per year level.  Future Forest does not
appear to have adjusted its proposal pricing to reflect a 15,000 acre per year minimum
guarantee level.  At no point during the pre-award process or contract performance did
Future Forest indicate in writing that it had based its cost proposals on anything other than
“a minimum guaranteed acreage of 5,000 acres per year for a total of 50,000 acres” over the
ten years of contract performance.
Noting that Future Forest’s proposal still seemed high, on July 9, 2004, the Forest
Service requested a best and final offer (BAFO) for the pricing Future Forest had provided. 
The Forest Service received Future Forest’s BAFO on July 13, 2004.  The Forest Service
then asked Future Forest to submit a second BAFO to reflect the prices of negotiated
treatment methods it would be paid for land restoration under the proposed contract.  On
5 Mr. Walker declares that neither he nor Rob Davis, the other person who worked on
Future Forest’s proposal, “remember[s] preparing a list of amendments or attaching such a list to the
SF-33” that was submitted. 

CBCA 5764 8
July 28, 2004, appellant submitted a second BAFO that clarified its pricing and offered
reduced pricing of services if new industries were established in the area.  The BAFO
submission provided Future Forest’s prices for work set forth in paragraphs B.1 through B.5,
but Future Forest states it did not resubmit the SF-33 or other documents the parties had been
addressing during the parties’ exchanges. 
 
Richard Salazar, then the ACO and acquisition manager director for the Forest Service
region responsible for administering the Apache-Sitgreaves National Forest, awarded Future
Forest the WMSC, contract 53-8173-04-0001, on August 10, 2004.  At the time of award,
the WMSC, in pertinent part, included the following language related to the type of contact
and the amounts guaranteed:
B.1.0.  This schedule describes the type(s) of work the Contractor may
anticipate under the White Mountain Stewardship Project (WMSP), Indefinite
Delivery/Indefinite Quantity (ID/IQ) contract.
. . . .
The Schedule of Items contains two sub-sections: Bid Prices for the value of
forest products removed, and Cost Items for Biomass Management which
includes thinning small trees and treatment of topwood residue from larger
trees whose main stem sections are valued as goods.  Task Order(s) will be
issued over the life of the contract and will use unit prices established at the
time of award to determine the cost of tree thinning services performed.  The
value for sawtimber “goods” will be adjusted at scheduled points every three
years during the contract, as determined by the Government.  Standard Forest
Service timber sale rate re-determination and appraisal methods in effect at the
specified times will be used to determine the adjustment.  In short, the rate will
be adjusted by adding the initial bid premium (amount bid above the specified
minimum) to the new appraised minimum value. 
. . . .
 
Minimum Guarantee:  The Government will guarantee a minimum, for each
program year of work, of 5,000 (five thousand) acres for a total of 50,000
acres over the 10 year term of the contract of forest land that is in need of
landscape biomass management with approved environmental analysis.
Section B of the contract included several pages of the pricing related to the WMSC.  Section
C addressed the background of the WMSP, and among other things stated:

CBCA 5764 9
SCOPE OF PROJECT
The awarded Contractor shall provide necessary expertise, supervision, labor,
equipment, tools, materials, supplies, transportation, and services to perform
Biomass Management that may include tree removal, treatment of existing
slash and dead trees, erosion control, resource protection, and haul road
maintenance, as examples of the type of work for the Apache-Sitgreaves
National Forest for a period of ten (10) years from the date of award under
the Stewardship Authority.  Approximately 150,000 acres will be treated
with a combination of treatments with the end result of complete removal
of all residue . . . .
Release of the acres to be treated will be done annually over the life of the
contract (10-years).  The Government anticipates releasing approximately
15,000 at regular annual intervals through the use of task orders.  To reach the
end result of 150,000 acres by the end of the contract, the Government may
release up to 25,000 acres maximum at the regular annual interval.
The WMSC’s Performance of Work Statement, Section C.1.0. General Information, also
stated: “Approximately 150,000 acres will be treated with a combination of Biomass
Treatments.”
The verbiage of the document the Forest Service proffers as the WMSC differs from
the language in the RFP amendments which specified that the Forest Service was only
offering a minimum guarantee of 5000 acres per year for a total of 50,000 acres over the ten-
year term of the contract.
Mr. Walker executed bilateral modification 1 on behalf of Future Forest on
September 9, 2004.  Modification 1 reinforced the 5000 acre minimum guarantee and
allowed the Forest Service to meet it by releasing acres or tons of material;
1.  Schedule of Items unit of measure is changed from Oven Dried Ton (OD
Ton) to Green Ton (G Ton).  2 Green Tons, when dried = 1 OD Ton. 
2.  Minimum Guarantee of 5,000 acres is amended to include a Ton
equivalent—whichever is reached first, acres or tons either OD or Green
[Tons] —(10.71 G Tons/Acre = 5.355 OD Tons/Acre = 53,550 G Tons/5,000
acres or 26,775 OD Tons/Acre).

CBCA 5764 10
Robert Taylor was a resources staff officer hired by the Forest Service for the Apache-
Sitgreaves National Forest who retired from the Forest Service because of what he refers to
as “the Regional Office’s changed interpretation of the WMSC and its lack of support and
commitment to it.”  Mr. Taylor worked with the contracting officer’s technical
representatives (COTRs) assigned to the WMSC, Kerry Nedrow and, later, Jerry Drury, who
became the COTR in March 2009.   Mr. Taylor states in his declaration of November 5,
2017:
12.  In the early years of the WMSC, there was no question that the Forest
Service (or more precisely the Regional Office (including the Administrative
Contracting Officer)) did not view the WMSC as merely guaranteeing 50,000
acres over the 10-year term of the contract.  That is, as discussed below, there
never was any discussion about a minimum guarantee of only 50,000 acres
until early 2008.  In fact, what I was given by the ACO as a copy of the
WMSC contract to administer was a rather haphazard assemblage of unsigned
documents, which among other things, did not contain RFP Amendment 5 with
its express reference to 50,000 acres.
13.  I have recently been provided with a copy of the version of the contract,
which respondent included in the appeal file in this case at 00602-00739.  I
have reviewed that document and can state that it is not a copy of the version
of the contract that my staff and I treated as the actual WMSC.
14.  In the early years of the WMSC, the contract was administered as one
where the Forest Service was to provide the contractor with 150,000 acres over
the term of the contract in annual amounts between the stated minimum to be
ordered each year of 5,000 acres and the stated maximum to be ordered each
year of 25,000 acres.
15.  In order to perform the WMSC, the Region had been allocating as much
as it could from other programs to the WMSC.  Additionally, unexpended end-
of-year funds on other projects both from within the Region and other Regions
were re-directed to the WMSC (This was an important source of funding for
the WMSC.)  Even so, the WMSC barely received enough money to proceed
with the contract as planned.
16.  Starting in the fall of 2007, the Regional Office became resistant to re-
allocating such end-of-year funds on other projects to the WMSC.

CBCA 5764 11
A total of twenty-seven modifications were issued over the term of the contract.  From
approximately September 2004 to May 2014, the Forest Service issued task orders releasing
71,737.90 acres, from which Future Forest treated 2,601,846.15 green tons of material. 
These acres and tons were released by the Forest Service through the issuance of task orders. 
According to the ACO, the contract records show that during year eight of the contract, from
August 10, 2011, to August 9, 2012, the Forest Service offered Future Forest a total of
139,454.14 tons of green material.  During year ten of the contract, from August 9, 2013, to
August 8, 2014, the Forest Service issued two task orders for a total of 938 acres to be
treated, yielding 52,891.08 green tons of material. 
Future Forest signed or acknowledged final invoices, final inspection forms, and task
order release forms accepting payment for the acres and tons ordered.  The WMSC was
operated until close of business on August 8, 2014, and expired on August 10, 2014. 
After the WMSC expired and beginning on or about August 13, 2014, Future Forest
began corresponding with the Forest Service through its attorney about potential claims
related to the amount of acreage released under the WMSC.6  Future Forest asserted “the
Forest Service at several places in the RFP advised offerors that, over the 10-year term of the
WMSC, ‘[a]pproximately, 150,000 acres will be treated with a combination of treatments.’” 
The correspondence noted that “other portions of the contract, i.e., the minimum guarantee,
assured that in no year would the Forest Service release less than 5,000 acres.”  Future Forest
posited it was entitled to: (1) lost profits on the difference between the amount of acreage it
should have been provided for restoration treatment and the amount of acreage it actually
received; (2) compensation for the company’s alleged failure to receive a rate
redetermination at the mid-point of the WMSC that would have reduced the rates to be paid
for certain timber under contract; and (3) compensation for the value of timber Future Forest
alleged it did not receive due to damage caused by the Wallow Fire in June 2011
The parties engaged in mediation from approximately September 5, 2014, until
May 31, 2017, and resolved some of Future Forest’s pending or potential claims.  On
September 16, 2015, Future Forest submitted a certified claim to the ACO in the amount of
“$17,921,213.74 owing to the Forest Service’s having provided Future Forest only 70,268
acres of the 150,000 acres that should have been provided under the [WMSC].”  Future
Forest referenced its letters of April 15, 2015, April 14, 2015, January 15, 2015, November 7,
6 The record as developed by the parties during the pendency of the contract’s
administration contains no indication that appellant maintained its current interpretations and
arguments during contract performance. 

CBCA 5764 12
2014, and August 13, 2014, for support of the $17,921,213.74 it sought in damages.7  Future
Forest alleged that in program year eight the Forest Service released only 3749.9 acres to
Future Forest, for a shortfall of 1250.1 acres, and in year ten released only 293 acres, for a
shortfall of 4707 acres.
On June 6, 2017, Future Forest appealed the deemed denial of its claim to the Civilian
Board of Contract Appeals, where it was docketed as CBCA 5764.  Count 1 of appellant’s
complaint in CBCA 5764 avers that for work performed on the WMSC, Future Forest’s 
gross profit was $187.28 per acre.  Future Forest seeks $1,115,645.69 in “lost gross profit”
based on the Forest Service’s alleged failure to provide the “contractually guaranteed” 5000
acres for land restoration treatment during two years of the WMSC.  Specifically, appellant
alleges that the respondent failed in program year eight to provide 1250.1 acres and in year
ten to provide 4707 acres.  In count 2, the amended complaint avers that appellant is entitled
to $14,743,430.72 in “lost gross profit” based on the Forest Service’s alleged failure to
provide a total of at least 150,000 acres over the ten-year period of contract performance. 
Future Forest avers that the Forest Service failed to release 78,724 acres over the ten-year
term of the WMSC, and that multiplied by the $187.28 per acre factor resulted in
$14,743,430.72 in “lost gross profit.”
Future Forest’s claim is further articulated in Mr. Walker’s declaration, where he
states that the document the Forest Service asserts is the WMSC is not the document he used
during the pendency of the contract term.  Mr. Walker declares:
24.  On or about August 10, 2004, [Future Forest] received a signed copy of
the contract that was awarded, which is included in the Appeal File at [Exhibit]
78.
25.  The awarded contract was consistent with the content of [Future Forest’s]
second Best and Final offer.  Moreover, it is virtually identical to the original
RFP issued by the [Forest Service] on March 4, 2004.  For reasons unknown
to me, it did not, however, contain § B.1.0 in which the 5,000 acre per year
minimum appears.  As discussed below, this fact necessitated Modification 1
to be issued so as to assure that this proviso was included.  [Exhibit] 78
contains the document that, at all times, the parties treated as the actual WMSC
originally executed by the contracting officer on August 10, 2004.  
7 The $17,921,213.74 Future Forest sought in its claim “[f]or the profits lost on the
78,724 acres” of the 150,000 acres that Forest Service failed to release, was later downward adjusted
to $14,743,430.72, when Future Forest lowered the lost gross profits figure of $227.65 per acre to
$187.28 per acre.

CBCA 5764 13
26.  Because [Future Forest] did not include a SF-33 or any other document in
its Best and Final Offer of July 28, 2004, indicating that [Future Forest]
intended to be compliant with, or bound by, the amendments to the RFP, nor
did it in any way cross reference or incorporate by reference [Future Forest’s]
initial proposal of June 18, 2004 into that offer, the contract set out in [Exhibit]
78 does not contain either a list of the RFP amendments themselves.  Nor does
it contain anything to support a position that [Future Forest] is bound by them. 
Indeed, the figure of 50,000 acres does not appear anywhere in [Exhibit] 78. 
I have reviewed the so-called True and Final version of the contract, which
respondent has included in the [Appeal File] at pages 00602-00739.  That
document is not the version of the contract that the [Forest Service] awarded
and sent to [Future Forest] on or about August 10, 2004.  Nor is it the version
of the WMSC that [Future Forest] and the [Forest Service] treated as the actual
WMSC executed by the contracting officer.
(Footnote and citations omitted.)8  Mr. Walker’ s declaration provides additional background
regarding his interpretation of the contract:
5.  The original RFP and the [Forest Service]’s answers to questions with
regard to it confirmed my view of the RFP – that in addition to 5,000 acres per
year, the RFP also guaranteed that the [Forest Service] would order 150,000
or more acres over the 10-year term of the contract, but that the contractor was
not required to harvest more than 150,000 acres.
6.  At the time it issued the RFP, the [Forest Service] also passed out a
schedule showing planned treatment acres over the life span of the contract of
some 175,575 acres at pages 02234-02236, and in the answers to bidder
questions, reiterated that the contractor had a right of first refusal on acres over
150,000, at page 00208.
7.  In its answers to questions, the [Forest Service] had also stated that:
a.  The Forest Service will make efforts to ensure that 15,000
NEPA approved acres will be available to the successful offeror
each year with 5,000 acres guaranteed per year and 150,000 over
the term of the contract. 
8   The declaration does not explain how such an approach would have constituted a
compliant offer. 

CBCA 5764 14
8.  This was exactly how I’d interpreted the RFP, i.e., that each year the [Forest
Service] would issue task orders totaling between 5,000 and 25,000 [acres] to
meet the total of 150,000 over the term of the contract.
9.  My interpretation was based not only on my knowledge of how the RFP
had developed but also various portions of the RFP.
10.  While these sections indicated that the RFP provided that the [Forest
Service] would order 150,000 acres over the 10-year term of the contract, other
sections, for example Scope of Project on page 7 of 154, and the [Forest
Service]’s answers to questions noted above also indicated that 150,000 acres
was the maximum quantity of services that the [Forest Service] could require
the contractor to perform under the contract.  With the guaranteed minimum
being 150,000 acres and the maximum which the [Forest Service] could
require the contractor to perform being 150,000, the RFP for this “indefinite
quantity contract” was pretty definite as to the quantity of work that was to be
performed under it.
. . . .
15.  On June 18, 2004, [Future Forest] submitted its initial proposal.  The
proposal included a signed Standard Form 33 (“SF-33”), a Business Proposal,
and a Technical Proposal. 
16.  Neither Rob Davis (the other person who worked on [Future Forest]’s
proposal) nor I remember preparing a list of amendments or attaching such a
list to the SF-33 that we submitted as part of our June 18, 2004 proposal.  After
a thorough search, we also could not find a complete copy of that proposal nor
any such list. 
. . . .
27.  After [Future Forest was] awarded the contract and got up to speed, each
day we were thinning about 200 acres and removing some 138 truckloads of
material.  There were, however, several occasions in the early years of the
contract when we feared that the [Forest Service] was not issuing enough task
orders to reach the total of 150,000 acres.  As I previously indicated, when we
specifically sought assurances from [ACO] Cole that the [Forest Service]
would order 150,000 acres pursuant to the WMSC, on each occasion I was

CBCA 5764 15
advised that if, toward the end of the contract, the [Forest Service] were still
off schedule that it would issue additional task orders so that 150,000 acres
was ordered.
. . . .  
29.  Later in the term of the contract, whenever I complained to the people on
the Apache-Sitgreaves who administered the contract – Kerry Nedrow, Jerry
Drury and his direct supervisor Bob Taylor, I got substantially the same answer
as I had gotten from [ACO] Cole – I would be told not to worry, that the
[Forest Service] understood that it was obligated to provide [Future Forest]
with 150,000 acres under the contract.
(Citations omitted.)
The document that Mr. Walker declares he received from the ACO upon award on
August 10, 2004, is different from what has been proffered by the Forest Service as the
WMSC.  In block 14, Acknowledgment of Amendments, on the cover page of the SF-33,
both the WMSC and Future Forest’s versions provide “See Attachment.”  However, the page
of the WMSC listing the eight amendments to the RFP by number and date is missing from
the document proffered by Future Forest.  Also, section B.1.0, Schedule of Items, is missing
from the document proffered by Future Forest as its version of the contract.9  It is in section
B.1.0, Schedule of Items, that the WMSC clearly states that the contract was for a period of
ten years “for a minimum guaranteed acreage of 5,000 acres per year for a total of 50,000
acres.”10
On August 29, 2017, a Forest Service ACO issued a final decision addressing Future
Forest’s claim.  The ACO concluded that Future Forest  understood the terms and conditions
of the WMSC contract and bilateral modification 1 establishing “the contract minimum
guarantee as 5,000 acres or 53,550 tons of treatment per year, whichever comes first.”  The
ACO determined that the Forest Service met its minimum guaranteed obligation every
program year of the contract except year ten. 
9 Section B.1.0 was included in the original RFP and later amended.
10 The WMSC also contains section B.5, Notes, which defines several categories
including, but not limited to the Biomass Treat and Remove category.  

CBCA 5764 16
The Forest Service calculated the acres and tons of material released to Future Forest
in year eight by both program year11 (October 1, 2011, through September 30, 2012) and by
contract year (August 10, 2011, through August 9, 2012).12  In program year eight, the Forest
Service released 4636.90 acres yielding 139,454.14 tons of material to be treated.  In contract
year eight it released 7157.90 acres yielding 306,146.61 tons of material.   The Forest Service
concluded that in program year eight it met the minimum guarantee by tons and in contract
year eight it met the contract minimums both in acres and tons.
The Forest Service calculated that in year ten (August 9, 2013, through August 10,
2014, the contract termination date) it had released 938 acres yielding 52,991.08 tons of
material to be treated.  Concluding that it had not offered 658.92 tons of the 53,550 green ton
minimum required in year ten, the Forest Service went on to quantify the value of the 658.92
ton shortfall.  The ACO also noted:
The Government exceeded the total minimum guarantee of 50,000 acres and
535,000 green tons of material guaranteed over the 10-year life of the WMSC. 
The Government offered a total of 71,737.90 acres for treatment, from which
Future Forest treated 2,601,846.15 green tons of material.  In light of the
minimal shortfall and the government having exceeded the 10-year minimum
contractual guarantee, it is not clear how any shortfall in year 10 harmed
Future Forest.
However, since the WMSC guaranteed minimum acreage of 5,000 acres (or
equivalent tons) per year for a total of 50,000 acres (or equivalent tons) over
ten years, and the Government did not provide 658.92 tons of material in year
10, the Government agrees to provide consideration to Future Forest for the
balance of tons not ordered in year 10.  
In rejecting Future Forest’s damages calculation, the ACO noted that no supporting
data had been provided on the $187.28 per acre figure used, and that the figure constituted
11 The WMSC is unclear as to what constituted a program year.  In some places it
indicates it ran from the date of contract award, August 10, through August 9 the following year, and
expired on August 10, 2014.  The Forest Service used the August 10 through August 9 time frame
to calculate the tons of material it released.  It is not clear why Future Forest disputes the Forest
Service’s calculations, other than they used acres to calculate the shortfalls. 
12 The WMSC minimum guarantee clause requires the Forest Service to release a
minimum of 5000 acres or 53,550 tons each program year.  The parties have not addressed what
period constitutes a program year, so the Board is unable to verify the amounts released. 

CBCA 5764 17
lost profits that were not supported by data or the circumstances.  The ACO calculated an
amount for the year ten shortfall, using cost data from the two task orders issued in year ten
to reach an average cost per ton of $13.94, but that analysis would benefit by further
explanation.  As for the portion of Future Forest’s claim asserting that the Government failed
to provide a total of at least 150,000 acres of land for restoration treatment, the ACO denied
that claim in its entirety as “inconsistent with the terms of the WMSC.” 
On June 13, 2017, Future Forest submitted another claim to the Forest Service of
$14,743,430.72 in “lost gross profit” based on the Forest Service’s alleged breach of the
implied duty of good faith and fair dealing, positing that it failed to make “reasonable, good-
faith efforts to fulfill the reasonable expectation it had created to release 150,000 acres under
the WMSC, and not to undercut it.”  A final decision was issued on September 22, 2017,
denying the claim in its entirety.  Future Forest timely appealed the final decision to the
Civilian Board of Contract Appeals, where it was docketed as CBCA 5863.
Citing CBCA 5764, the Forest Service moved for summary relief, which Future Forest
opposed.  While respondent’s motion for summary relief argued generally that there was no
breach of contract, the Forest Service did not make any argument specifically addressing the
cause of action raised in CBCA 5863.  Appellant moved to the strike portions of respondent’s
reply relating to CBCA 5863.  We conclude that the motion for summary relief was not
directed to CBCA 5863 and, therefore, this decision does not address CBCA 5863.       
Discussion
I. The standard for summary relief
Resolving a dispute by summary relief is appropriate when no material facts are in
dispute and the moving party is entitled to judgment as a matter of law.  Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).  “The purpose of summary judgment is not to deprive a
litigant of a [hearing], but to avoid an unnecessary [hearing] when only one outcome can
ensue.”  Vivid Technologies, Inc. v. American Science, & Engineering, Inc., 200 F.3d 795,
806 (Fed. Cir. 1999).  A party seeking summary relief bears the burden of establishing the
absence of any genuine issue of material fact, and all justifiable inferences must be drawn
in favor of the non-movant.  Celotex, 477 U.S. at 322-23; Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986).  All significant doubt over factual issues must be resolved in favor
of the party opposing summary relief.  Systems Management & Research Technologies Corp.
v. Department of Energy, CBCA 4068, 16-1 BCA ¶ 36,333, at 177,128 (citations omitted). 
When a motion for summary relief is properly supported, an adverse party may not rest upon
the mere allegations or denials of its pleading.  “The party opposing summary judgment must
show an evidentiary conflict on the record; mere denials or conclusory statements are not

CBCA 5764 18
sufficient.”  Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390-91 (Fed. Cir.
1987), quoted in Turner Construction Co. v. Smithsonian Institution, CBCA 2862, et al., 15-1
BCA ¶ 36,139, at 176,394.  A dispute is genuine if the evidence is such that a reasonable trier
of fact could decide for the non-moving party.  Anderson, 477 U.S. at 248.  In considering
summary relief, the judge’s only function is to determine whether there is a genuine issue for
a hearing.  Id. at 249. 
While we are to draw all reasonable inferences in favor of the non-moving party,
“[w]here the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party,” summary relief in favor of the moving party is appropriate.  Matsushita
Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Mingus, 812 F.2d
at 1390. 
“The non-movant must be able to provide additional evidence or point to some part
of the record before the Board which indicates that the facts differ significantly from the way
the moving party has presented them, or that they are subject to a reasonable interpretation
other than that presented in the motion for summary judgment.”  P.J. Dick Contracting, Inc.,
VABCA 3386, et al., 92-1 BCA ¶ 24,599, at 122,727 (1991) (quoting Fire Security Systems,
Inc., VABCA 3086, 90-3 BCA ¶ 23,235).  “A fact is considered to be material if it will affect
the Board’s decision, and an issue is genuine if enough evidence exists such that the fact
could reasonably be decided in favor of the non-movant . . . .”  Tucci & Sons, Inc. v.
Department of Transportation, CBCA 4779, 16-1 BCA ¶ 36,258, at 176,887 (quoting
Charles Engineering Co. v. Department of Veterans Affairs, CBCA 582, et al., 08-2 BCA ¶
33,975, at 168,055-56).  “Allegations without support are not evidence.”  McAllen Hospitals
LP v. Department of Veterans Affairs, CBCA 2774, et al., 14-1 BCA ¶ 35,758, at 174,970
(quoting Max Castle, AGBCA 97-128-1, 97-1 BCA ¶ 28,833, at 143,845).
A nonmoving party need not present its entire case in response to a motion for
summary relief to defeat the motion, but must present sufficient evidence to show evidentiary
conflicts exist on the record as to material facts at issue.  Armco, Inc. v. Cyclops Corp., 791
F.2d 147, 149 (Fed. Cir. 1986); A-Son’s Construction, Inc. v. Department of Housing &
Urban Development, CBCA 3491, et al., 15-1 BCA ¶ 36,089, at 176,205 (citing Mingus
Constructors, Inc., 812 F.2d at 1390-91). 
II. Contract interpretation
Contract interpretation is a question of law and is often suitable for disposition on
summary relief.  Corners & Edges, Inc. v. Department of Health & Human Services, CBCA
648, 07-2 BCA ¶ 33,706, at 166,890.  The contract must be considered as a whole and

CBCA 5764 19
interpreted as such to give reasonable meaning to all of its parts.  McAbee Construction, Inc.
v. United States, 97 F.3d 1431, 1435 (Fed. Cir. 1996).
The starting point for contract interpretation is the language of the written
agreement.  NVT Technologies, Inc. v. United States, 370 F.3d 1153, 1159
(Fed. Cir. 2004).  In interpreting the language of a contract, reasonable
meaning must be given all parts of the agreement so as not to render any
portion meaningless, or to interpret any provision so as to create a conflict with
other provisions of the contract.  Hercules, Inc. v. United States, 292 F.3d
1378, 1380-81 (Fed. Cir. 2002); Fortec Constructors v. United States, 760
F.2d 1288, 1292 (Fed. Cir. 1985); United States v. Johnson Controls, Inc., 713
F.2d 1541, 1555 (Fed. Cir. 1983).  The nature of the contract is determined by
an objective reading of its language, not by one party’s characterization of the
instrument.  Varilease Technology Group, Inc. v. United States, 289 F.3d 795,
799 (Fed. Cir. 2002); Travel Centre v. Barram, 236 F.3d 1316, 1319 (Fed. Cir.
2001); Greenlee Construction, Inc. v. General Services Administration, CBCA
416, 07-1 BCA ¶ 33,514, at 166,061. 
Champion Business Services v. General Services Administration, CBCA 1735, et al., 2010-2
BCA ¶ 34,539, at 170,345, modified on reconsideration, 10-2 BCA ¶ 34,598.
“The primary objective of contract interpretation is to determine the intent of the
parties at the time an agreement is created.”  600 Second Street Holdings LLC v. Securities
& Exchange Commission, CBCA 3228, 13-1 BCA ¶ 35,396, at 173,666 (citing Alvin, Ltd.
v. United States Postal Service, 816 F.2d 1562, 1565 (Fed. Cir. 1987); Gildersleeve Electric,
Inc. v. General Services Administration, GSBCA 16404, 06-2 BCA ¶ 33,320).  “The
language of the agreement ‘must be given that meaning that would be derived from the
contract by a reasonabl[y] intelligent person acquainted with the contemporaneous
circumstances.’”  Id. (quoting Hol-Gar Manufacturing Corp. v. United States, 351 F.2d 972,
975 (Ct. Cl. 1965)). “[A]n interpretation which gives a reasonable meaning to all parts of an
instrument will be preferred to one which leaves a portion of it useless, inexplicable,
inoperative, void, insignificant, meaningless or superfluous; nor should any provision be
construed as being in conflict with another unless no other reasonable interpretation is
possible.”  Hol-Gar, 351 F.2d at 979.  Moreover, the conduct of the parties prior to the
dispute is especially strong evidence of the contract’s true meaning.  See Blinderman
Construction Co. v. United States, 695 F.2d 552, 558 (Fed. Cir. 1982) (“It is a familiar
principle of contract law that the parties’ contemporaneous construction of an agreement,
before it has become the subject of a dispute, is entitled to great weight in its interpretation.”
(citation omitted)).  Applying these principles to the contract, it is clear that the WMSC

CBCA 5764 20
required the Forest Service to release a minimum of only 5000 acres or 53,550 green tons of
material a year.  Except for year ten, the Forest Service met the contract requirements. 
III. The motion for summary relief and response
Respondent moves for summary relief, arguing that (1) the four corners of the WMSC,
including modification 1, make clear that Future Forest was guaranteed task orders totaling
no more than 50,000 acres or its equivalent in green tons over the ten years of contract; (2)
the WMSC’s unambiguous terms control; (3) Future Forest was fully aware of the contract
terms and entitled to no more than the contractually agreed minimum; (4) the Forest Service
met and exceeded the minimum amounts guaranteed by the WMSC; and (5) by providing the
minimum guaranteed amounts, the Forest Service was not in breach of the WMSC.
Appellant responds that because respondent has failed to demonstrate that there are
no genuine issues of fact on the relevant issues summary relief should not be granted. 
Appellant asserts that: (1) the RFP as initially issued did not contain the “the minimum
guarantee of 5000 acres for a total of 50,000 acres over the ten years of contract” and the
terms of the original RFP became the contract; (2) there is no evidence that Future Forest
acknowledged the RFP amendments or that 5000 acres per year for 50,000 acres over the
entire term of the contract was the amount that the Forest Service guaranteed; (3) Future
Forest’s offer was superseded by its subsequent BAFOs and any putative acknowledgment
of the RFP amendments that may have occurred did not transcend into Future Forest’s final
offer which the Forest Service accepted; (4) the document that the Forest Service asserts was
awarded as the WMSC is not the true and final version of the contract; (5) the document that
Future Forest asserts was the contract required the Forest Service to issue task orders totaling
at least 150,000 acres during the ten-year term of the contract; (6) the document that Future
Forest asserts was the contract was not an ID/IQ contract; (7) the Forest Service and Future
Forest had a concurrent interpretation of the contract as providing for the release of 150,000
acres; and 8) modification 1 did not revise the requirement for the Forest Service to release
150,000 acres for thinning over the ten-year term of the contract.13  Finally, Future Forest
asserts the Board would err if it did not allow appellant “additional discovery that it needs
to ferret out evidence to properly defend itself.”
IV. Interpretation of the WMSC
13 To the extent Future Forest may have made other arguments, these arguments were
considered but not deemed sufficiently convincing to warrant further discussion.

CBCA 5764 21
a. The terms of the WMSC state that Future Forest was guaranteed a minimum
acreage of 5000 acres per year for a total of 50,000 acres over the term of the
contract
We begin our analysis of respondent’s motion by interpreting the terms of the contract
before us.  The Board must determine whether the WMSC included the guarantee of 50,000
acres over the ten years of contract, as the Forest Service asserts or, alternatively, as Future
Forest contends, committed the Forest Service to “issue[ing] task orders totaling between
5,000 and 25,000 [acres] to meet the total of 150,000 over the term of the contract.”  Because
the parties disagree on the terms that constitute the contract, it might appear that there are
material facts in dispute and the Board might have to assess the credibility of
witnesses—something we cannot do on a motion for summary relief.  However, by
addressing appellant’s arguments point-by-point we conclude that this appeal is amenable
to summary relief.  
In deciding this motion, we consider the evidence in the light most favorable to the
non-movant, Future Forest, without making credibility determinations or weighing
conflicting evidence.  For this purpose, we accept Mr. Walker’s declaration that the
document he received on August 10, 2004, and treated as the contract was not the same as
the document that the Forest Service proffers as WMSC.  We also accept that the contracting
officer sent Future Forest a copy of the WMSC that omitted the list of amendments and
section B.1.0, and that the copy Mr. Walker and some Forest Service personnel worked from
during the contract term did not contain the list of amendments and section B.1.0.  Even
though Mr. Walker apparently worked from an incomplete document, we conclude that the
portions missing from his document were still applicable terms of the WMSC.  
The RFP as it was originally issued clearly stated, in pertinent part, that “[t]he
Government will guarantee a minimum, for each program year of work, of 5,000 (five
thousand) acres of forest land that is in need of landscape biomass management.”  While the
original RFP did not specifically state a ten-year total of 50,000 acres, it seems clear that with
an annual guaranteed minimum of 5000 acres, simple multiplication would result in an
interpretation that Future Forest would receive a minimum of 50,000 acres if the contract was
performed for the full ten years.  While other provisions of the RFP informed potential
offerors that the Forest Service “intended” to release 15,000 acres a year for 150,000 acres
over the ten-year term of the contract, the Forest Service issued RFP amendments 5 and 7
making it clear to potential offerors that it was only guaranteeing to release a minimum
acreage of 5000 acres per year.

CBCA 5764 22
The WMSC was an ID/IQ contract,14 a contract type under which a contractor is to
provide “[a]n indefinite quantity, within stated limits, of supplies or services during a fixed
period” of time during which the Government will “place[] orders for individual
requirements.”  48 CFR 16.504(a) (2015).  This type of contract “provide[s] the government
purchasing flexibility for requirements that it cannot accurately anticipate.”  Travel Centre, 
236 F.3d at 1318.  While an ID/IQ contract “provides that the government will purchase an
indefinite quantity of supplies or services from a contractor during a fixed period of time, it
requires the government to order only a stated minimum quantity of supplies or services.” 
Id. at 1319; see Mason v. United States, 615 F.2d 1343, 1349 (Ct. Cl. 1980) (“A guaranteed
minimum purchase amount is . . . essential to there being an enforceable indefinite quantities
contract.”).  Accordingly, “under an ID[/]IQ contract, the government is required to purchase
the minimum quantity stated in the contract, but when the government makes that purchase
its legal obligation under the contract is satisfied.”  Travel Centre, 236 F.3d at 1319.
ID/IQ contracts frequently contain terms informing prospective contractors that the
Government “intends” to order a certain number of items, but in the contract section
addressing the minimum guarantee, the amount is set significantly lower.  Longstanding case
law holds that where an ID/IQ contract itself does not guarantee a higher minimum amount,
the Government is only liable for the stated minimum.  In  Travel Centre, 236 F.3d at 1318-
19, the Federal Circuit discussed ID/IQ contracts in the context of minimum guarantees:
[A]n ID[/]IQ contract provides that the government will purchase an indefinite
quantity of supplies or services from a contractor during a fixed period of time,
it requires the government to order only a stated minimum quantity of supplies
or services.  48 CFR § 16.504(a) (2000).  See also Dot Sys[tems], Inc. v.
United States, 231 Ct. Cl. 765 (1982).  That is, under an ID/IQ contract, the
government is required to purchase the minimum quantity stated in the
contract, but when the government makes that purchase its legal obligation
14 Without explaining how it supports its position, Future Forest asserts several critical
elements of an ID/IQ contract were missing from the WMSC and, thus, the WMSC was not an ID/IQ
contract.  The Board does not find Future Forest’s argument compelling. The WMSC included the
clauses found in FAR 52.216-22, Indefinite Quantity (OCT 1995); FAR 52.216-18, Ordering (OCT
1995); and FAR 52.216-19 Order Limitations (OCT 1995), and contained guaranteed minimums. 
The parties treated the WMSC as if it were an ID/IQ contract.  The Board further notes that in an
ID/IQ contract, where a minimum guaranteed amount is lacking, the contract is enforceable only to
the extent performed.  Pros Cleaners v. Department of Health & Human Services, CBCA 6077, slip
op. at 4 (August 30, 2018); Carrington Group, Inc. v. Department of Veterans Affairs, CBCA 2091,
12-1 BCA ¶ 34,993, at 171,984-85.

CBCA 5764 23
under the contract is satisfied.  See, e.g., Mason v. United States, 222 Ct. Cl.
436, 615 F.2d 1343, 1346 (1980).  Moreover, once the government has
purchased the minimum quantity stated in an ID[/]IQ contract from the
contractor, it is free to purchase additional supplies or services from any other
source it chooses.  An ID[/]IQ contract does not provide any exclusivity to the
contractor.  The government may, at its discretion and for its benefit, make its
purchases for similar supplies and/or services from other sources.
. . . . 
Regardless of the accuracy of the estimates delineated in the solicitation, based
on the language of the solicitation for the ID[/]IQ contract, Travel Centre
could not have had a reasonable expectation that any of the government’s
needs beyond the minimum contract price would necessarily be satisfied under
this contract.
. . . [w]hen an ID[/]IQ contract between a contracting party and the
government clearly indicates that the contracting party is guaranteed no more
than a non-nominal minimum amount of sales, purchases exceeding that
minimum amount satisfy the government’s legal obligation under the contract. 
Accordingly, under the terms of the ID[/]IQ contract at issue, GSA was only
required to purchase the minimum quantity stated in the contract—sales that
would lead to $100 in revenue.  Prior to the termination of the contract, Travel
Centre realized over $500,000 of gross sales under the contract.  Sales of more
than $500,000 netted Travel Centre over $100 of revenue.  Therefore, GSA
satisfied its obligation under the contract.  Because GSA met the legal
requirements of the contract at issue, its less than ideal contracting tactics fail
to constitute a breach. Therefore, Travel Centre is not entitled to any legal
relief, including damages.
236 F.3d at 1319.  We follow Travel Centre and conclude that, through the stated minimum
guarantee in the RFP and WMSC, the Forest Service only guaranteed an annual minimum
of 5000 acres for 50,000 acres over the term of the contract.
Mr. Walker acknowledges that on May 6, 2004, he knew the Forest Service had
amended the original RFP to say, “[T]he Government will guarantee a minimum, for each
program year of work, of 5,000 (five thousand) acres for a total of 50,000 acres over the term
of the contract.”  Other potential offerors were aware of that amendment, and Mr. Walker
notes that discussions were held between the Forest Service and potential offerors, in which
the 5000 minimum was discussed.  Even if, taking the facts in the light most favorable to the

CBCA 5764 24
non-movant, as we must, and accepting that Mr. Walker did not receive a full copy of the
contract when it was initially executed, Future Forest was still aware of the 5000 acre
minimum guarantee.  Furthermore, the fact that Future Forest worked from an incomplete
copy of the WMSC does not mean that the missing list of RFP amendments and section B.1.0
magically “dropped out” of the WMSC.  The contract’s SF-33 referenced the RFP
amendments and the contract had page numbers that put Mr. Walker on notice of any missing
pages had he bothered to check.  Future Forest’s argument that the missing pages changed
the terms of the WMSC is unavailing.
Starting with the original RFP, and continuing with Future Forest’s technical proposal
and answers to the evaluating panel’s questions, the only minimum guarantee mentioned in
the WMSC was 5000 acres a year.  Given the undisputed facts presented here, Future Forest,
and specifically Mr. Walker, well understood that Future Forest had agreed to the guaranteed
annual minimum of 5000 acres.  While some Forest Service personnel informed prospective
offerors that they “intended” to release 15,000 acres a year for 150,000 acres over the ten-
year term of the contract, that did not change the clear contract language providing only a
minimum guarantee of 5000 acres a year.15 
b.  Bilateral modification 1 evidences Future Forest’s clear understanding of
the 5000 acre minimum guarantee that could also be met in tons of material
Shortly after the contract was awarded, Future Forest executed modification 1, which
referenced the 5000 acre guaranteed minimum and, additionally, allowed the Forest Service
to provide the guaranteed minimum in acres or tons of material, whichever came first.  Thus,
had we not found that the RFP, RFP amendments, and WMSC as awarded, made abundantly
clear that the Forest Service was only guaranteeing a minimum of 5000 acres annually for
50,000 acres over the term of the contact, the minimum guarantee was reiterated, once again,
by modification 1, which was a bilateral agreement between the parties.
Mr. Walker’s execution of modification 1 was an explicit acknowledgment of his
awareness and acceptance of the annual 5000 acre minimum guarantee that applied to the
WMSC. 
Mr. Walker has never denied that he was aware that the WMSC contained an annual
minimum guarantee of 5000 acres.  He attempts to explain the minimum guarantee away in
his declaration by saying he understood that the Forest Service “would issue task orders
totaling between 5,000 and 25,000 [acres] to meet the total of 150,000 [acres] over the term
15 Using the formula set forth in modification 1, instead of releasing acres, the WMSC
could also be fulfilled by releasing green tons and oven dried tons. 

CBCA 5764 25
of the contract.”  But a complete reading of the WMSC does not support Mr. Walker’s
interpretation which cherry picks an isolated sentence instead of reading the contract as a
whole to give meaning to all its parts.  Mr. Walker’s selective interpretation ignores the
guaranteed minimum and the lengths the Forest Service went through to amend the RFP. 
While we are to draw all reasonable inferences in favor of Future Forest, the record taken as
a whole cannot lead a rational trier of fact to find Mr. Walker’s interpretation reasonable
given the history of the RFP process and WMSC award.  Furthermore, had Mr. Walker
actually believed the 150,000 figure was guaranteed, he had sufficient notice that his
interpretation contrasted with the stated minimum guarantee, requiring Future Forest to raise
the patent ambiguity created by his interpretation.16
c.  The WMSC required the Forest Service to release at least 5000 acres per
year for a total of 50,000 acres over the term of the contract
Over the ten-year term of the WMSC, 71,737.90 acres were released to Future Forest. 
The Forest Service argues that it met the WMSC terms because it “exceeded the total ten year
minimum guarantee of 50,000 acres and 535,000 green tons.”  The Forest Service also argues
that Future Forest had material available to operate in year ten of the contract so it is unclear
how it suffered harm from its failure to receive the 658.92 tons of material.17  We reject
respondent’s argument that the terms of WMSC were met by the Forest Service releasing
71,737.90 acres to Future Forest over the ten years of the contract.  The agency ignores an
explicit annual minimum guarantee in the contract.  Even the ACO recognized that the Forest
Service guaranteed to release to Future Forest at least 5000 acres annually.  
V. Discussion and analysis of Future Forest’s arguments against summary relief
Having concluded that the WMSC contained a minimum guarantee of 5000 acres per
year for a total of 50,000 acres from date of award, we move on to address appellant’s
arguments that the WMSC somehow guaranteed more than that amount.  Many of appellant’s
arguments revolve around its position that the RFP and subsequent WMSC should be
interpreted as committing to a minimum guarantee of 15,000 acres per year for 150,000 acres
over the entire term of the contract.  This is a position the Board wholly rejects, as we have
16 Future Forest’s argument that modification 1  did not revise the requirement for the
Forest Service to release 150,000 acres over the ten-year term of the contract is unavailing as Future
Forest indicated that it was well aware of the 5000 acre minimum guarantee.
17 The Forest Service acknowledges that the contracting officer determined that Future
Forest is owed “$9,183.81 for the cost of uncompensated treatment of green tons and $21,912.40 in
unrealized value of recoverable green tons not offered in year 10, plus interest.”

CBCA 5764 26
found that throughout the procurement process and resultant contract, a guaranteed minimum
of 5000 acres was clearly stated.
 
We find it telling that Mr. Walker, appellant’s primary declarant, has never explained
how he reconciled the language in the original RFP containing the minimum guarantee with
his current interpretation.  Future Forest had notice from the original RFP that the Forest
Service “guaranteed” a release of a only 5000 acres a year.  Furthermore, RFP amendments
5 and 7 “put a fine point” on the minimum guarantee of 5000 acres per year for a total of
50,000 acres over the ten years of contract.  RFP amendment 5 adjusted the 150,000 acres
downward to 50,000 acres in the clause containing the minimum guarantee, and RFP
amendment 7 downward adjusted the statement in the original RFP’s scope of project
referring to 150,000 acres to a minimum guaranteed acreage of 5000 acres per year for a total
of 50,000 acres.  Amendment 7 reiterated the Forest Service’s “intention” to treat
“approximately 150,000 acres” under the contract, but clearly, in the context of the RFP and
RFP amendments the Forest Service did not guarantee that 150,000 acres would be released. 
Future Forest’s arguments and Mr. Walker’s declaration conveniently skirt the minimum
guarantee language to reach an interpretation  that cannot be supported by the terms of the
original RFP, RFP amendments, and the subsequent WMSC. 
There is no compelling evidence that once the RFP was issued the Forest Service ever
intimated that it “guaranteed” it would release 15,000 acres a year or 150,000 acres over the
ten-year term of the WMSC.  While some Forest Service personnel appear to have indicated
an intent to release 150,000 acres, the terms of the RFP and the resultant WMSC, including 
modification 1, had been altered to obviate any reasonable interpretation that the Forest
Service was promising to release 150,000 acres over the ten-year term of the contract. 
Prospective offerors, including Mr. Walker, were informed that while the Forest Service
“intended” to release 150,000 acres for treatment to satisfy the Regional Forester,18 the
minimum guaranteed amount was set at 5000 acres.  Furthermore, even if the original RFP
became the WMSC, it still contained the annual guaranteed minimum of 5000 acres that we
cannot ignore.  We reject Future Forest’s arguments that the RFP as initially issued became
the WMSC, or that the WMSC could be reasonably interpreted to guarantee 15,000 acres a
year or 150,000 acres over the term of the contract. 
a.  Future Forest acknowledged the RFP amendments and agreed that the
WMSC’s “minimum guarantee” was 5000 acres per year
18 The Regional Forester was the individual responsible for funding the WMSC on an
annual basis.

CBCA 5764 27
Future Forest avers that we should deny the motion because there is no evidence that
it acknowledged the RFP amendments or that 5000 acres per year for 50,000 acres over the
entire term of the contract was the amount that the Forest Service guaranteed.  This argument
fails because Future Forest’s technical proposal submitted on June 18, 2004, acknowledged
the minimum guarantee of 5000 acres per year, and none of its subsequent pre-award
submissions indicated that had changed.  It is clear that pre-award, Future Forest understood
that the RFP on which it made its proposals contained a minimum guarantee of 5000 acres
per year.  Mr. Walker has never denied this fact and there is significant evidence showing he
was well aware of the 5000 acre figure and kept Future Forest’s proposal prices higher in
light of the 5000 acre minimum guarantee.  No pre-award actions on the part of the Forest
Service indicated that it considered the 5000 acre minimum guarantee to be inapplicable.  We
accept that some employees in the Forest Service conveyed an intention to order more than
the agreed upon minimum, but conclude that intentions are not contractually binding where
an ID/IQ contract states a clear guarantee.   See Travel Centre, 236 F.3d at 1318-19. 
Additionally,  Mr. Walker signed the SF-33, containing Block 14,  Acknowledgment
of Amendments, stating “See Attachment.”  By his signature, Mr. Walker acknowledged that
there were RFP amendments.  It is unfortunate, but immaterial, that Future Forest did not
receive the page listing the amendments.  Nevertheless, the record is clear that Mr. Walker
was well aware of and acknowledged the RFP amendments that made clear the 5000 acre
annual minimum guarantee for 50,000 acres over the ten-year term of the contract.  If Future
Forest had any doubt as to the terms of the amendments it was acknowledging by Mr.
Walker’s signature, it should have inquired.  Future Forest was under a duty to inquire further
as to reference to amendments.  Arcadis U.S., Inc. v. Department of the Interior, CBCA 918,
08-1 BCA ¶ 33,807, at 167,353; e.g., Champion Business Services v. General Services
Administration, CBCA 1735, 10-2 BCA ¶ 34,539, at 170,346 (noting a contractor’s
obligation to inquire in the face of a patent ambiguity in a contract).  Appellant’s various
arguments that it should not be bound by the RFP amendments are unavailing.
Appellant cites to no authority requiring an awardee to specifically acknowledge each
RFP amendment in order to be bound by those amendments.  In Overhead Electric Co.,
ASBCA 25656, 85-2 BCA ¶ 18,026, the appellant argued that in the absence of the
acknowledgment of a solicitation amendment it would not be required to perform.  The
Armed Services Board of Contract Appeals disagreed, responding:
This argument is incorrect; if not specious.  It is true that a contract must be
awarded to a low bidder who is responsible and whose bid is responsive to the
solicitation.  Depending upon the nature of a solicitation amendment, a failure
to acknowledge its issuance may cause the bid to be nonresponsive.  As a
general proposition any amendment which affects price, quality, quantity,

CBCA 5764 28
delivery, or other significant performance matters must be acknowledged
before a bid may be considered to be responsive.  Stated conversely, a failure
to acknowledge such an amendment renders the bid nonresponsive.
Amendments which do not fit into the above category do not carry the same
connotation.  A failure to acknowledge such an amendment is considered to
be only a minor irregularity which may be waived.  A bid thus is responsive
even in the absence of an acknowledgment.
Thus, appellant’s argument that since the contract required compliance with
Amendment No. 2 its acknowledgment of the issuance thereof must have been
accepted fails.  The amendment was part of the contract even in the absence
of appellant’s failure to acknowledge it since the Government could, and did,
waive the failure.
Id. at 90,460.  FAR 14.405 notes that the acknowledgment of receipt of an amendment may
be waived if the bidder received the amendment.  See 48 CFR 14.405.  Future Forest has not
denied that it received the RFP amendments.
As discussed earlier, the history pertinent to the WMSC makes clear that during the
procurement process the Forest Service, through the RFP amendment process, clarified the
guaranteed quantities as opposed to the “intended” quantities.  If Future Forest believed
150,000 was actually guaranteed under contract, that would create a patent ambiguity with
the contract terms only guaranteeing a minimum of 5000 acres a year.  Certainly, such an
ambiguity, if it actually occurred, would have been patent and created a duty on the part of
Future Forest to inquire.  Metric Constructors, Inc. v. National Aeronautics & Space
Administration, 169 F.3d 747, 751 (Fed. Cir. 1999).  As earlier noted, Mr. Walker never
specifically declared that he did not understand that the WMSC contained a 5000 acre
minimum guarantee.  The fact that he readily executed modification 1 shortly after contract
award confirms that he fully understood that the Forest Service was guaranteeing only a
minimum of 5000 acres a year.  
Mr. Walker’s interpretation, that the Forest Service would release “between 5,000 and
25,000 [acres] to meet the total of 150,000 over the term of the contract,” ignores the term
“minimum guarantee” and all the connotations that are associated with a minimum guarantee
in an ID/IQ contract.  His interpretation also conflicts with well-established contract
principles that the contract must be read as a whole, giving reasonable meaning to all its
parts.  Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991).  By interpreting
the contract the way he did, Mr. Walker effectively read out the contract language setting a
minimum guarantee.  His interpretation is unreasonable.

CBCA 5764 29
We  understand that Mr. Walker may have been given verbal assurances that the
Forest Service “intended” to release 150,000 acres, and that may be how he felt wronged by
receiving only 71,000 acres over the ten year contract.  However, the facts remain, the Forest
Service went to lengths to make clear to prospective bidders that it was offering “a minimum
guaranteed acreage of 5,000 acres per year for a total of 50,000 acres” over the term of the
contract.  Even had the contracting officer stated something to the effect “I guarantee the
Forest Service will release 150,000 acres over the term of the contract,” verbal
representations made by the contracting officer do not overcome the express terms of the
contract.  Jane Mobley Associates, Inc. v. General Services Administration, CBCA 2978, 16-
1 BCA ¶ 36,285 at 176,955  (“Although the CO may have stated the contract was
firm-fixed-price, the express terms of the modification manifestly contradict any verbal
representation the CO might have made.”)  The intent of individuals does not equate to a
contractual obligation, particularly where the contract is an ID/IQ contract setting forth a
minimum guaranteed amount.  Id.
b.  Future Forest’s BAFO did not change the annual minimum guarantee of 5000 acres
Future Forest argues that its offer was superseded by its subsequent BAFO, and any
putative acknowledgment of the RFP amendments that may have occurred did not carry over
into the offer which the Forest Service accepted.  The fact that Future Forest submitted a
final BAFO that included different pricing does not somehow vitiate its earlier
acknowledgment of the RFP amendments or other parts of the contract that were unaffected
by the BAFO.  The authority cited by appellant involved pre-award proposal pricing and a
question of which proposal should be considered by the Government for award; it is not 
applicable here.  Furthermore, while we might consider decisions of the United States Court
of Federal Claims and General Accountability Office for their persuasive value, we are not
bound by them.  Optimum Services, Inc. v. Department of the Interior, CBCA 4968, 16-1
BCA ¶ 36,357. 
Future Forest’s initial proposal noted it was “assuming 5,000 acres are available per
year,” and there is no indication in its subsequent offers that this assumption ever changed. 
There is no indication in the record created during the term of the WMSC that Future Forest
did not intend to be bound by the RFP’s stated minimum of 5000 acres.  The WMSC clearly
stated that the Forest Service was offering “a minimum guaranteed acreage of 5,000 acres
per year for a total of 50,000 acres.”  The minimum guaranteed amount was never modified.
c.  The document missing the RFP amendments and section B.1.0 used by
Future Forest was not the entire WMSC

CBCA 5764 30
We accept Mr. Walker’s declaration that the version of the contract that he received
upon award is not the same version the Forest Service proffers as the WMSC.  Nonetheless,
as we found earlier, the actual WMSC contained the RFP amendments, section B 1.0, and
modifications 1 through 27.
 To argue that a guaranteed 150,000 acre figure remained viable in the WMSC only
revives potential confusion that the Forest Service amply addressed and remedied when it
issued RFP amendments 5 and 7 and modification 1.
d.  The parties did not have a concurrent interpretation of the contract as
guaranteeing the release of 150,000 acres
We conclude that the minimum guarantee language that remained consistent in all
iterations of the RFP and the resultant WMSC, clearly demonstrates that Future Forest
understood that there was a minimum guarantee of 5000 acres in this contract.  While certain
Forest Service personnel may have “intended” to see more acres released, and told
prospective offerors of their “intent,” by issuance of modification 1 the Forest Service
reaffirmed that it was guaranteeing to release only 5000 acres a year.  
 
While Future Forest personnel interpreted the expressed intent of some Forest Service
personnel as  “committing” the Forest Service to releasing 150,000 acres over the term of the
contract, this interpretation is not reasonable in the context of an ID/IQ contract.   Future
Forest has never asserted that the Forest Service told it they were changing the minimum
guarantee set forth in the RFP and WMSC.  The minimum guarantee of 5000 acres a year has
remained consistent.  
We do not look to individuals’ purported interpretations to interpret the WMSC
provisions because the terms are clear on their face.  McAbee Construction, 97 F.3d at 1435. 
Also as we have previously noted a verbal interpretation of an agency official, even a
contracting officer, does not change the express terms of a contract.  Jane Mobley Associates,
Inc., 16-1 BCA at 176,955.  Furthermore, intentions, plans, or desires on the part of an
agency to order more than the stated minimums set forth in a contract do not equate to
contractual commitments.  Travel Centre, 236 F.3d at 1319.  Given the facts of this case, we
do not accept that the Forest Service bound itself to releasing any more than 5000 acres a
year.  The issue of the annual minimum guarantee and guaranteed amount over the ten-year
term of this contract has been resolved by this partial grant of summary relief.   
e.  The number of acres or tons of material that the Forest Service released
during years eight and ten is not amenable to summary relief because the facts
are undeveloped

CBCA 5764 31
Future Forest calculated its claim in terms of acres, concluding that it was shorted
1250.1 acres in year eight and 4707 acres in year ten.  Future Forest asserts that it is entitled
to recover $187.28 per acre for the acres that were not released.  In defending against this
motion, appellant posits that “the 53,550 minimum [green ton] annual guarantee is . . .
unenforceable” because it was calculated using a green ton/acre equivalency set out in
modification 1, which was the result of an unreasonably inaccurate estimate prepared by Mr.
Johnson.19  Other than arguing that the 53,550 green ton minimum is unenforceable,
appellant provides no alternate quantum calculation for green tons.  Instead, appellant urges
us to use acres instead of green tons to address the shortfalls.
The Forest Service quantified the shortfalls in both acres and tons for year eight and
concluded that in program year eight it met the minimum guarantee both in acres and tons. 
For program and contract year ten the Forest Service calculated that it had released 938 acres
yielding 52,991.08 tons of material to be treated, and concluded that it had not offered 658.92
tons of the 53,550 green ton minimum required in year ten.  The Forest Service went on to
quantify the value of the 658.92 ton shortfall as $31,096.19, consisting of $13.94 per ton
factor for costs of services plus $21,912.40 for value of the material it would have been able
to sell. 
The record is not sufficiently developed for us to calculate the potential shortfalls or
to quantify damages in this appeal.  Future Forest avers in its complaint that in year ten the
Forest Service only released 3749.9 acres while the Forest Service calculates in its final
decision that it released 4636.90 acres.  The Board record is unable to glean from the record
which party is correct.  There also appears to be an outstanding issue on whether acreage or
the green ton equivalency should be used to address the shortfalls.  At this stage, Future
Forest has not established a sufficient basis to discount the specific language in the bilateral
modification.  It appears from the parties’ briefing that there may be other disputed facts with
regard to these and other issues that must be resolved prior to the Board fully addressing this
appeal.   We are not satisfied that the present record provides sufficient support to address
all outstanding issues including quantum.  The Board may defer parts of a decision until it
can be founded on a more complete factual record.  DJM/REZA v. Department of Veterans
Affairs, VABCA 6917, 05-1 BCA ¶ 32,943, at 163,209.
  
VI. Conclusion
19 As support for this conclusion appellant attached to its brief an unidentified document
titled “THE APS BIG PROJECT.”  No information was provided about the document’s creation or
date.

CBCA 5764 32
The Forest Service did not contract for an annual minimum guarantee of 15,000 or
150,000 acres over the term of the WMSC.  We grant summary relief in part, concluding that
the WMSC provided an annual minimum guarantee of only 5000 acres per year for a total
of 50,000 acres over the ten-year term of the contract.  We deny the remainder of the motion
pending further development of the record. 
Decision
For the foregoing reasons, respondent’s motion for summary relief is PARTIALLY
GRANTED.  The Board will schedule further proceedings by separate order.
  Patricia J. Sheridan       
PATRICIA J. SHERIDAN
Board Judge
I concur:
  Jonathan D. Zischkau    
JONATHAN D. ZISCHKAU
Board Judge
VERGILIO, Board Judge, concurring in part.
I would grant the agency’s motion for summary relief.  The underlying certified claim
seeks a sum certain “owing to the Forest Service’s having provided Future Forest only
70,268 acres of the 150,000 acres that should have been provided” under the contract. 
Because the contract does not guarantee that 150,000 acres would be provided, the agency’s
motion for summary relief should be granted and the appeal denied.  I reach this result
consistent with rules for contract interpretation and applicable standards for resolving a
motion for summary relief.  I focus my inquiry on the language of the contracts (as viewed
each by the contractor and agency) and not on parol or extrinsic evidence such as the request
for proposals, amendments, and other information.  The plain language of each contract is
clear and unambiguous and does not support the position of the contractor.

CBCA 5764 33
The document proffered by the contractor as the contract in dispute does not require
the agency to provide 150,000 acres for the contractor to service.  The Scope of Project
clause states that approximately 150,000 acres will be treated and that the agency intends to
achieve that by the end of the contract.  The Performance Work Statement, General
Information, clause also states that approximately 150,000 acres will be treated.  However,
a Task Orders clause indicates that the agency will issue work orders consistent with an
Indefinite Quantity clause that states that the quantities specified in the schedule are estimates
only and are not purchased by this contract.  There is no guarantee that 150,000 acres will
be available to be serviced.  The contractor’s interpretation that the contract guarantees
servicing of 150,000 acres is inconsistent with the specific language of the Indefinite
Quantity clause (that amount is not purchased, but an estimate), and the notion of an
indefinite quantity–a guarantee that all 150,000 would be purchased is a definite quantity. 
Moreover, a bilateral modification specifies that a minimum guarantee of 5000 acres is
amended to include a weight equivalent, the minimum satisfied by whichever is reached first. 
Under this version of the contract, with no other guarantee identified, the only guarantee is
for 5000, not 150,000, acres over the life of the contract.  The contractor has provided no
valid basis to discount the bilateral modification.  With or without the bilateral modification,
the contractor does not prevail.  With the modification there is a minimum guarantee; without
the modification the contractor gets paid per order performed.
The agency’s version of the contract expressly states that the overall guarantee is for
50,000 acres or its weight equivalent.  This is not a guarantee of 150,000 acres.  The
contractor does not prevail.
The contractor’s reliance upon extrinsic evidence, including the beliefs of its president
and other contractor personnel and offerors, and agency officials that 150,000 acres would
be serviced under the contract, is of no weight and details are not necessary.  The plain
language of each contract–as viewed by the contractor and by the agency–is clear that there
is no guarantee that 150,000 acres will be serviced.  A written agreement has value; extrinsic
evidence is not to be used to contradict a plain meaning.
The contractor’s claim to the contracting officer is specific in alleging a total
requirement and shortfall.  The attempt in the complaint to expand the appeal into a review
of annual requirements and alleged annual violations is outside the scope of the claim, as
additional inquiry is required to establish annual requirements, and would require
consideration of annual orders.  The legal theory and amount sought is different for the
failure to meet annual minimums aspect of the complaint from the total guarantee claim and
should not be considered.  K-Con Building Systems, Inc.  v.  United States, 778 F.3d 1000,
1005-06 (Fed. Cir. 2015).  I would neither make other factual findings or legal
determinations nor keep the case open to require the agency to resolve a claim not before it. 

CBCA 5764 34
In my view, the agency’s motion for summary relief should be granted and the contractor’s
claim denied.
     Joseph A. Vergilio          
JOSEPH A. VERGILIO
Board Judge