MOTION TO DISMISS COUNT I DENIED: February 11, 2020
CBCA 6358
GRIZ ONE FIREFIGHTING, LLC,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
Scott A. Everard, Stevensville, MT, counsel for Appellant.
Jody M. Miller and Jennifer T. Newbold, Office of the General Counsel, Department
of Agriculture, Missoula, MT, counsel for Respondent.
Before Board Judges DRUMMOND, SULLIVAN, and RUSSELL.
DRUMMOND, Board Judge.
The Department of Agriculture, Forest Service (Forest Service), has moved to dismiss
count I of the complaint1 filed by Griz One Firefighting, LLC (Griz One) for lack of
jurisdiction or, in the alternative, for failure to state a claim upon which relief can be granted. 
1   Griz One’s complaint alleges two counts and seeks damages totaling $49,671.90. 
In count I, Griz One alleges that the Forest Service’s negligent actions caused damage to its
engine #2 (equipment) for which it seeks compensation.  In count II, Griz One alleges breach
of contract.  The Forest Service’s motion concerns only count I of the complaint.

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Griz One opposes the motion.  Both parties have filed supplemental arguments and exhibits. 
We deny the Forest Service’s motion.  
Background
On June 6, 2016, the Forest Service entered into a blanket purchase agreement
(agreement) with Griz One for wildland firefighting services.  Under the agreement, Griz
One made available water handling equipment and operators for wildland fire incidents at
the Forest Service’s northern region and nationwide when accepting dispatch orders from the
Forest Service and other governmental agencies.2 
Section C.8 of the agreement assigns to Griz One the risk of loss, damage, or
destruction of the equipment provided with an operator, unless the loss, damage, or
destruction was caused by “the negligence, or wrongful act(s) of government employee(s)
while acting within the scope of their employment.”  No clause in the agreement directs the
contractor to submit claims to anyone other than the Forest Service contracting officer.
In July 2017, Griz One accepted a dispatch order to supply  equipment for a major fire
event at the Tongue River Fire Complex in Missoula, Montana.  While at the site on July 10,
2017, Griz One’s equipment was damaged in an accident with a government vehicle operated
by a Forest Service trainee.  The Bureau of Land Management (BLM) investigated the
incident and reported the conditions prior to the accident as stressful and urgent due to near
zero visibility caused by excessive smoke and high winds.
In a letter dated August 28, 2018, Griz One submitted a claim to the contracting
officer that, in part, asserted that a Forest Service employee while working under orders from
the Government negligently or wilfully caused the accident on July 10, 2017, that damaged 
Griz One’s equipment.  Griz One claimed damages totaling $3366.90; that is, $1716.90 for
damage to the equipment (supported by a preliminary estimate), $1500 for diminution in
value (supported by a declaration), and $150 for three days of lost rental during repairs.  The
contracting officer denied this portion of the claim and advised Griz One, without any
supporting citation to the contract, that the BLM, not the Forest Service, was the host agency
and, as such, was the agency responsible for resolving Griz One’s claim.  The contracting
officer made no determinations about Griz One’s claimed damages.
2   The agreement refers to the Forest Service and the other governmental agencies
collectively as the “Government.” 

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Griz One filed a timely appeal and complaint.  Count I of Griz One’s complaint
repeats  the existence of a contract and that the Forest Service’s negligence on July 10, 2017,
caused the accident that damaged its equipment.  Griz One also repeated its request for
damages totaling $3366.90.
Discussion 
Pending before us is the Forest Service’s motion to dismiss this appeal for lack of
jurisdiction and failure to state a claim.  We deny the Forest Service’s motion.
1.  Jurisdiction
The Court of Appeals for the Federal Circuit has instructed that where a plaintiff
alleges the existence of a contract between it and the Federal Government, a court or board
of contract appeals has jurisdiction to consider the case.  Engage Learning, Inc. v. Salazar,
660 F.3d 1346, 1353 (Fed. Cir. 2003).  The Board therefore possesses jurisdiction to decide
this appeal.  41 U.S.C. § 7104 (a) (2012).  The contractor filed a timely appeal from the
contracting officer’s final decision.  There is no question that Griz One plead the existence
of a valid contract.  The Forest Service, while attributing the contract to the BLM, clearly
concedes that a contract exists.  The Forest Service alleges that the Board lacks jurisdiction
because the claim should have been presented to BLM as the ordering agency, rather than
the Forest Service.  Putting aside factual discrepancies as to which agency ordered the
equipment, there is no clause in the agreement that directs contractors to submit claims to the
ordering agency.  The Forest Service relies upon the payment provisions of the agreement,
which reads that the ordering agency will pay for services, but without more we cannot
construe those provisions as requiring submission of the claim to the ordering agency.
2.  Failure to State a Claim
The Forest Service has moved to dismiss count I of Griz One’s complaint for failure
to state a claim against the Forest Service upon which relief can be granted.  The standard
to resolve such a motion, is well established.  “We apply essentially the same standard as
would a federal trial court when ruling on a motion to dismiss for failure to state a claim.” 
Williams Building Co. v. Department of Veterans Affairs, CBCA 6559, et al., slip op. at 3
(Jan. 6, 2020) (quoting Amec Foster Wheeler Environment & Infastructure, Inc. v.
Department of the Interior, CBCA 5168, et al., 19-1 BCA ¶ 37,272, at 181,366 (citing Board
Rule 8(e) (48 CFR 6101.8 (e) (2009)).  The complaint must allege facts “‘plausibly
suggesting (not merely consistent with)’ a showing of entitlement to relief.”  Id.  (quoting 
Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir. 2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 557 (2007)).  The Board observed in Williams that “[t]he Twombly

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plausibility test altered the prior rule that a tribunal should dismiss for failure to state a claim
only if ‘it appear[ed] beyond a reasonable doubt that the [claimant could] prove a set of facts
. . . which would entitle it to relief.”’ Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46
(1957), abrogated in relevant part by Twombly, 550 U.S. at 561-63). 
The Forest Service urges us to dismiss this appeal for failure to state a claim because 
Griz One’s claim does not establish negligence by a preponderance of the evidence and, even
if it does, the BLM, not the Forest Service, is the agency potentially liable for the damages. 
Preponderance of evidence is not the standard at this stage of the proceedings.  Here, the
BPA expressly addresses liability for damages to owner-operated equipment. The BPA
dictates that the Government shall not be liable for any loss, damage, or destruction of such
equipment, except for loss, damage, or destruction resulting form the negligence or wrongful
act(s) of government employee(s) while acting within the scope of their employment.  Griz
One alleges that its equipment was damaged when a Forest Service employee negligently
backed a government vehicle into it.  These allegations, if true, state a plausible claim for
relief.  The issue of whether Griz One can substantiate its claim is at this point in the
litigation premature for us to decide.  
Decision
The Forest Services’ motion to dismiss count I is DENIED.  The parties shall confer
and submit to the Board by February 28, 2020, a joint proposed schedule for further
proceedings.
  Jerome M. Drummond    
JEROME M. DRUMMOND
Board Judge
We concur:
 Marian E. Sullivan             Beverly M. Russell           
MARIAN E. SULLIVAN                          BEVERLY M. RUSSELL
Board Judge Board Judge

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