DISMISSED FOR LACK OF JURISDICTION: August 21, 2014
CBCA 3618
CHLOETA FIRE, LLC,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
Paige A. Masters of Crowe & Dunlevey, Oklahoma City, OK, counsel for Appellant.
Mark R. Simpson, Office of the General Counsel, Department of Agriculture, Atlanta,
GA, counsel for Respondent.
Before Board Judges SOMERS, HYATT, and POLLACK.
HYATT, Board Judge.
Chloeta Fire, LLC (Chloeta) alleges that the Department of Agriculture’s Forest
Service breached a contract between the two parties for the supply of water handling
equipment for the emergency suppression of wildland fires.  Choleta has appealed the
contracting officer’s deemed denial of its breach claim.   Respondent has filed a motion to
dismiss the appeal for lack of jurisdiction.  For the reasons discussed herein, we grant the
motion.
Background
On May 18, 2010, respondent entered into a Virtual Incident Procurement (VIPR)
agreement with Chloeta, a small-disadvantaged Native American-owned business, for the

CBCA 3618 2
provision of wildland fire engines as needed to respond to incidents in the Forest Service’s
southern region and throughout the nation.  The VIPR agreement is a type of basic
purchasing agreement (BPA) that was created by respondent to secure the appropriate mix
of the resources needed when a fire incident occurs.  The VIPR agreement implements a pre-
planning process whereby the Forest Service identifies, evaluates, and ranks potential
suppliers and equipment prior to the fire season.  
The agreement stated the following:
The solicitation will result in multiple agreements. . . .  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. 
In addition, the agreement provided that each dispatch center was required to “give
priority to [the] resource offering the greatest advantage to the Government for emergency
wildland fire suppression . . . BEFORE all other private resources not under th[e]
Agreement.”  Chloeta had been predetermined to offer the greatest advantage to the
Government for emergency wildland fire suppression for the equipment it provided and thus
was listed as number one on the dispatch priority list. 
In late July 2012, the Ozark National Forest experienced numerous wildland fire
incidents requiring the assistance of outside resources.  Chloeta’s engine was available
during this time.  Additionally, Chloeta employees routinely communicated with the staff of
the Arkansas-Oklahoma Interagency Coordination Center (AOICC)1 regarding the
availability of its engine.
1 The AOICC serves as the Initial Attack Fire Dispatch Office for the Ouachita
and Ozark-St. Francis National Forests and the Bureau of Indian Affairs in Oklahoma. 
AOICC coordinates the movement of resources for federal and state agencies within
Arkansas and Oklahoma.  These agencies include the Forest Service, Bureau of Indian
Affairs, National Park Service, United States Fish & Wildlife Service, Bureau of Land
Management, Arkansas Forestry Commission, and Oklahoma State Forestry.

CBCA 3618 3
According to Chloeta, rather than order its engine, the Forest Service instead
contracted with the Choctaw Nation to supply a similar engine for a total of fourteen shifts
for various initial attack fires.  Chloeta states that the Forest Service did not have a
cooperative agreement with the Choctaw Nation to provide this resource.  Shortly after
learning that the Choctaw Nation engine had been dispatched in response to these incidents,
Chloeta’s personnel traveled to AOICC’s offices in Hot Springs, Arkansas, to discuss the
matter.  They met with a Forest Service staff officer who agreed that Chloeta’s engine should
have been ordered.  This individual is alleged to have instructed the AOICC assistant center
manager to place an order for the Chloeta engine for the same incident.  Chloeta states that
it accepted this offer and confirmed to AOICC that the resource was available.  Chloeta
further alleges that there was a mutual understanding that appellant would take no further
action given the pending order.  Thereafter, the Government allegedly reneged on this
promise and refused to issue the order.  
Chloeta submitted a claim to the contracting officer seeking the amount of
$39,275.30, revenue it says was lost as a result of the utilization of a “non-VIPR contract”
engine in the Ozark National Forest during the 2012 fire season in violation of the VIPR
agreement.  The claim made no mention of the events that occurred with respect to Chloeta’s
dealings with the AOICC, but focused primarily on the failure to follow the process detailed
in the VIPR agreement.   When no decision was forthcoming after approximately six months,
appellant appealed the deemed denial of its claim. 
Discussion
The Forest Service filed a motion to dismiss for lack of jurisdiction shortly after the
appeal was filed, contending that there was no binding contract between the parties; the
VIPR agreement was, in essence, a basic purchasing agreement (BPA) that imposed no
obligation on either party.  Appellant opposes the motion, maintaining that it has alleged an
implied contract to supply its equipment to the Forest Service, which is all that is required
to establish jurisdiction under the rationale of Engage Learning, Inc. v. Salazar, 660 F.3d
1346 (Fed. Cir. 2011).
To invoke the Board’s jurisdiction under the Contract Disputes Act (CDA), 41 U.S.C.
§§ 7107-7109 (2012), appellant must show the existence of a contract, express or implied,
for the procurement of (1) property, other than real property in being; (2) services; (3)
construction, alteration, repair, or maintenance of real property; or (4) the disposal of
personal property.  Id. § 7102(a).  The Forest Service argues that, under well-settled
precedent, appellant did not have a contract to perform the subject services for the Forest
Service and thus cannot pursue an appeal at the Board.

CBCA 3618 4
In particular, the Forest Service relies on the language of the VIPR agreement stating
that the Government did not have to place orders with Chloeta and that Chloeta was under
no obligation to perform if an order were placed.  For a binding contract to come into
existence a resource order must be placed by the Forest Service and accepted by the
contractor.  Respondent directs our attention to precedent of the Court of Appeals for the
Federal Circuit, construing virtually identical language under similar facts and holding that
this type of agreement did not, in and of itself, create a binding contract.  To constitute a
valid and enforceable contract, there must be both consideration to ensure the mutuality of
obligation and adequate definiteness to create a basis for determining that a breach occurred
and to fashion an appropriate remedy.  Crewzers Fire Crew Transport, Inc. v. United States,
741 F.3d 1380, 1382 (Fed. Cir. 2014) (Tucker Act).  Moreover, the ranking of eligible
providers in BPAs has expressly been rejected as giving rise to any contractual obligation to
award to the highest-ranked contractors under the VIPR agreements.  Absent a binding
contract, there is no Contract Disputes Act jurisdiction.  Ridge Runner Forestry v. Veneman,
287 F.3d 1058, 1062 (Fed. Cir. 2002) (Contract Disputes Act); accord Modern Systems
Technology Corp. v. United States, 24 Cl. Ct. 360, 362 (1991), aff’d, 979 F.2d 200 (Fed. Cir.
1992); Muse Business Services, LLC v. Department of the Treasury, CBCA 3537 14-1 BCA
¶ 35,619; Hart Ventures, Inc. v. Department of Agriculture, CBCA 3081, 13 BCA ¶ 35,336;
Dr. Lewis J. Goldfine v. Social Security Administration, CBCA 2549, 12-1 BCA ¶ 34,926.
Chloeta opposes the motion, conceding that the BPA by itself did not create an
enforceable contract, but countering that, nonetheless, an implied contract was created based
on the dealings it had with the Forest Service, which are detailed in its complaint.  Since it
has alleged the creation of a specific oral contract pursuant to the VIPR agreement, Chloeta
reasons that it has met the CDA’s jurisdictional requirement to allege the existence of a
procurement contract entered into by the parties and thus is entitled to remain before the
Board to endeavor to prove its case.  See Engage Learning, 660 F.3d at 1354.
The problem with Chloeta’s argument is that none of the facts alleged by Chloeta in
its complaint to establish an implied contract were mentioned in the claim letter submitted
to the contracting officer.  In the claim submitted to the contracting officer, Chloeta focused
solely on the award of work to the Choctaw Nation, which apparently had no VIPR
agreement with the Forest Service.  In its claim, Chloeta maintains only that this award
violated the agency’s express policies and procedures as set forth in the VIPR agreement.  
Any appeal filed with the Board under the Contract Disputes Act must be “based on
the same claim previously presented to and denied by the contracting officer.”  Scott Timber
Co. v. United States, 333 F.3d 1358, 1365 (Fed. Cir. 2003) (quoting Cerberonics, Inc. v.
United States, 13 Cl. Ct. 415, 417 (1987)); accord Qwest Communications Co. v. General
Services Administration, CBCA 3423 (July 1, 2014); EHR Doctors, Inc. v. Social Security

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Administration, CBCA 3522 (June 11, 2014); Ketchikan Indian Community v. Department
of Health & Human Services, CBCA 1053-ISDA, et al., 13 BCA ¶ 35,436, at 173,808.  These
authorities also provide that the claim must arise from the same operative facts and seek
essentially the same relief.  If the claim asserted before the Board differs in its essential
nature or basic operative facts from the original claim, it cannot have been considered by the
contracting officer in his decision.  Without the presentation of the claim to the contracting
officer, the Board does not have jurisdiction to consider the matter.  Qwest Communications
Co., slip op. at 4; Walsh/Davis Joint Venture v. General Services Administration, CBCA
1460, 10-2 BCA ¶ 34,479, at 170,056-57, reconsideration denied, 10-2 BCA ¶ 34,498.
Here, although the amount claimed is unchanged, the operative facts asserted in
Chloeta’s claim cannot reasonably be regarded as encompassing those subsequently included
in the complaint.  The contracting officer has not had the opportunity to consider these facts
or whether an implied contract may have been formed in the circumstances.  In short, the
Board does not have jurisdiction to consider the claim as restated by appellant in its
complaint because those operative facts have not been presented to the contracting officer
for a decision.  We also lack jurisdiction to consider the appeal based on the claim actually
presented to the contracting officer because the BPA was not a binding contract.  
Decision
Respondent’s motion to dismiss is granted.  The appeal is DISMISSED FOR LACK
OF JURISDICTION.
__________________________________
CATHERINE B. HYATT
Board Judge
We concur:
__________________________________ __________________________________
JERI KAYLENE SOMERS HOWARD A. POLLACK
Board Judge Board Judge