Present: Carrico, C.J., Compton, Hassell, Keenan and Kinser, 

JJ., and Stephenson and Whiting, Senior Justices 

W.J. SCHAFER ASSOCIATES, INC. 

v. Record No. 961945 

CORDANT, INC. 

OPINION BY SENIOR JUSTICE ROSCOE B. STEPHENSON, JR. 

 October 31, 1997 

LENZAR ELECTROOPTICS, INC. 

v. Record No. 961964 

CORDANT, INC. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Thomas S. Kenny, Judge 

 These are appeals of a judgment rendered on separate jury 

verdicts arising from a single trial. In Record No. 961945, the 

dispositive issue is whether a so-called "Teaming Agreement" 

constitutes an enforceable contract for the sale of goods. In 

Record No. 961964, we decide whether promissory estoppel should 

be recognized as a cause of action. 

 I 

 By an amended motion for judgment filed September 28, 1995, 

Cordant, Inc. (Cordant) sought damages from Ogden Government 

Services Corp. (Ogden), W.J. Schafer Associates, Inc. (Schafer), 

and Lenzar ElectroOptics, Inc. (Lenzar) based upon claims arising 

out of Cordant's efforts to secure a government contract to 

convert certain personnel records to a computer-accessible form. 

 In the motion for judgment, Cordant set forth the following 

claims: Count I, breach of contract by Ogden; Count II, breach 

of contract by Schafer and Lenzar; Count III, promissory estoppel 
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against Ogden; Count IV, promissory estoppel against Schafer; 

Count V, promissory estoppel against Lenzar; Count VI, fraud and 

deceit by Ogden; Count VII, constructive fraud by Ogden; Count 

VIII, fraud and deceit by Ogden, Schafer, and Lenzar; and Count 

IX, constructive fraud by Ogden, Schafer, and Lenzar. 

 After about a three-week trial, the jury returned the 

following three verdicts in favor of Cordant: a verdict against 

Ogden for breach of contract with damages fixed at $0; a verdict 

against Schafer for breach of contract with damages fixed at 

$300,000; and a verdict against Lenzar for promissory estoppel 

with damages fixed at $150,000. The trial court entered judgment 

on the verdicts, and Schafer and Lenzar appeal.1

 II 

 On April 15, 1991, the United States Air Force issued a 

Request for Proposal (RFP), seeking bids for its project to 

convert its personnel records stored on microfiche to a system of 

electronic data accessible by computer. The system was known as 

"Automated Records Management System" (ARMS). 

 For nearly two years prior to the RFP, Cordant, a computer 

and telecommunications integration systems company, prepared to 

submit a bid as a prime contractor. The ARMS project required 

Cordant to procure software and equipment necessary for 

"scanning" or "digitizing" the microfiche. 

 1The trial court had struck Cordant's evidence relating to 

the fraud claims. 
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 In preparing to bid on the project, Cordant solicited 

pricing and product information from various companies, including 

Ogden. Ogden was a software development firm with prior 

experience on Air Force contracts and expertise in the type of 

software necessary for the ARMS project. Ogden also had a 

corporate affiliation with Schafer, another technology company 

that had been developing image scanning equipment known as 

"digitizers." Cordant believed that having access to Schafer's 

digitizer would enhance its chances of securing the Air Force 

contract. 

 On May 24, 1991, Ogden signed a document with Cordant 

entitled "Teaming Agreement," and Cordant signed the document on 

July 23, 1991.2

 The Teaming Agreement provided, in pertinent 

part, that Cordant would "propose" Ogden to the Air Force as "an 

exclusive Subcontractor" for the products and services set forth 

in Exhibit A to the Agreement. Ogden would "supply pricing" for 

the products and services listed in Exhibit A, which specifically 

included software development services and the Schafer digitizer. 

 Cordant and Ogden each would "bear its own costs, risks and 

liabilities incurred as a result of its obligations and efforts 

under [the] Agreement," and neither party would have the "right 

to any reimbursement, payment, or compensation of any kind from 

the other party during the period prior to the Government 

 2At the time of the Agreement's execution, Cordant was known 

as Centel Federal Systems, Inc., and Ogden was known as 

Evaluation Research Corporation. 
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contract." Cordant and Ogden also agreed that, if Cordant became 

the prime contractor of the ARMS project, they would "negotiate 

in good faith in a timely manner a Subcontract Agreement." 

Cordant reserved the right, "in its sole discretion to withdraw 

its participation from this procurement at any time prior to 

award [of a contract by the Air Force] if [Cordant] determin[ed] 

that such withdrawal [was] in [its] best interest." The parties 

agreed that the Teaming Agreement "contain[ed] the entire 

agreement between the parties and supersed[ed] any previous 

understandings, commitments or agreements, oral or written." 

Finally, with regard to the availability of the Schafer 

digitizer, Exhibit A to the Agreement provided as follows: 

 [C]ompliant with the requirements specified in the RFP 

[, the Schafer digitizer] will be available for 

delivery on August 31, 1991. By July 31, 1991, 

[Cordant] shall make a determination, through 

consultations with [Ogden's] representative, on the 

probability of product availability by contract award. 

 If sufficient and satisfactory progress has not been 

made in order to make the product available by contract 

award, [Cordant] reserves the right, in its sole 

discretion, to pursue a replacement product . . . . In 

the event that the [Schafer digitizer] is not available 

to [Cordant], it is agreed by the parties that it shall 

not be available to any other party participating in 

the Project. 

 Following its execution of the Teaming Agreement, Ogden 

submitted to Cordant initial pricing information, which covered 

both services and products, including digitizers. Shortly 

thereafter, Ogden reduced its estimated price for software 

development services. 

 On August 9, 1991, Cordant submitted a bid to the Air Force 
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for the ARMS project. Cordant's own evidence established that, 

at the time its bid was submitted, it knew that the Schafer 

digitizer was not yet fully developed or commercially available. 

 In December 1991, Cordant submitted to the Air Force its "best 

and final" offer (BAFO), listing Lenzar, a recently-acquired 

wholly-owned subsidiary of Schafer to which Schafer had delegated 

its obligation to provide the digitizers, as the supplier of the 

digitizers. Again, at the time it submitted its "best and final" 

bid, Cordant knew that the Schafer digitizer was still in 

development and not in production, that there was "a risk that 

one will not be available," and that it was not "commercially 

available." 

 On January 9, 1992, the Air Force awarded Cordant the ARMS 

contract for the amounts set forth in Cordant's BAFO. 

Thereafter, Lenzar insisted on Cordant's negotiating a written 

subcontract with it. By April 1992, however, there remained 

"unresolved contracting issues," and Cordant had not yet provided 

Lenzar with a draft subcontract. Nevertheless, on April 17, 

1992, Cordant requested that Lenzar provide it with "adequate 

written assurances" that Lenzar would perform its "obligation to 

deliver [the digitizers] as committed under the teaming 

agreement." In response, Lenzar reiterated its request for 

negotiation of a written subcontract. Cordant, thereupon, 

declared that Lenzar's response "constitute[d] an anticipatory 

repudiation of [the] Agreement," and, on June 2, 1992, Cordant 
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sent Lenzar a "termination" letter. Thereafter, Cordant secured 

from another company a product to replace the Schafer digitizer. 

 III 

 Schafer contends that the Teaming Agreement is not an 

enforceable contract for the sale of digitizers. It is, Schafer 

asserts, merely an agreement to agree in the future and, 

therefore, too vague and indefinite to be enforced. Cordant 

responds that the Teaming Agreement "reveals a document that 

clearly sets forth in significant detail the obligations of the 

parties." 

 The Teaming Agreement is clear and unambiguous; indeed, 

neither party contends otherwise. When a written agreement is 

clear and unambiguous, it is the duty of a court, not a jury, to 

determine whether an enforceable contract exists. Pierce v. 

Plogger, 223 Va. 116, 120, 286 S.E.2d 207, 210 (1982). 

Therefore, whether the Teaming Agreement contains the requisites 

of an enforceable contract is a matter of law. 

 In Allen v. Aetna Casualty & Surety, 222 Va. 361, 281 S.E.2d 

818 (1981), an insurance company "did bargain for and obtain 

plaintiff's agreement not to retain counsel to prosecute his 

claim in exchange for [the company's] promise to effect full and 

final settlement with him." Id. at 362, 281 S.E.2d at 819. The 

insurance company subsequently breached this agreement with the 

plaintiff. Id. We noted that the crucial question in Allen was 

"whether the terms of the agreement . . . were too vague and 
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indefinite to enforce." Id. at 363, 281 S.E.2d at 819. In 

holding that the agreement was not an enforceable contract, we 

said 

 there must be mutual assent of the contracting parties 

to terms reasonably certain under the circumstances in 

order to have an enforceable contract. Here, there was 

no such mutual commitment. No sum was specified in the 

agreement, nor was any method or formula alleged for 

determining the amount payable in settlement. A court 

should not determine the terms of the settlement upon 

which the parties might ultimately agree. As the 

agreement provided no reasonable basis for affording a 

remedy for its breach, it is too vague and indefinite 

to be enforced. 

Id. at 364, 281 S.E.2d at 820. 

 In the present case, the Teaming Agreement provided that 

"[f]or all items identified in Exhibit A, [Ogden] shall supply 

pricing." However, no price for the digitizers was set forth in 

the Agreement, and the Agreement shows that the parties knew that 

the digitizers might not be available for use if the ARMS 

contract were awarded to Cordant. In that regard, the Agreement 

states that, by July 31, 1991, Cordant "shall make a 

determination, through consultations with [Ogden's] 

representative, on the probability of [the digitizer's] 

availability by contract award" and that, "[i]f sufficient and 

satisfactory progress has not been made in order to make the 

[digitizer] available by contract award, [Cordant] reserves the 

right, in its sole discretion, to pursue a replacement product." 

Clearly, therefore, the Teaming Agreement shows by its express 

terms that it was not an enforceable contract for the sale of 
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digitizers. There was no mutual commitment by the parties, no 

obligation on the part of Ogden to sell the digitizers or on the 

part of Cordant to purchase them, no agreed purchase price for 

the product, and, indeed, no assurance that the product would be 

available when needed. It follows, therefore, that, if the 

Teaming Agreement was not enforceable against Ogden as a contract 

for the sale of goods, it also was not enforceable against 

Schafer under the claim that Schafer was Ogden's delegate within 

the meaning of the Uniform Commercial Code, i.e., Code § 8.2-

210(1). 

 IV 

 Next, we consider Lenzar's appeal. The jury found that 

Lenzar was not liable to Cordant on its breach of contract claim. 

 However, the jury found against Lenzar on Cordant's claim of 

promissory estoppel. 

 Lenzar contends on appeal, as it did at trial, that 

promissory estoppel is not a cognizable cause of action in 

Virginia. Cordant, citing Georgeton v. Reynolds, 161 Va. 164, 

170 S.E. 741 (1933), claims we previously adopted promissory 

estoppel as a cause of action. We do not agree. In Georgeton, 

promissory estoppel was not asserted offensively as an 

affirmative claim, but was applied defensively to establish 

consideration for a unilateral contract (a release). Id. at 173-

74, 170 S.E. at 744. 

 In the alternative, Cordant asks us to create a new cause of 
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action for promissory estoppel, adopting the approach set forth 

in Restatement (Second) of Contracts § 90(1) (1981). The 

Restatement provides that "[a] promise which the promisor should 

reasonably expect to induce action or forbearance on the part of 

the promisee . . . and which does induce such action or 

forbearance is binding if injustice can be avoided only by 

enforcement of the promise." 

 Although we have addressed the doctrine of promissory 

estoppel and even assumed, without deciding, the existence of 

such a cause of action, we never have held that such a cause of 

action exists or should be created. See, e.g., Tuomala v. Regent 

University, 252 Va. 368, 376, 477 S.E.2d 501, 506 (1996) (noting 

that this Court "[has] not applied the doctrine in this 

Commonwealth"); Stone Printing and Mfg. Co. v. Dogan, 234 Va. 

163, 165-67, 360 S.E.2d 210, 211-12 (1987) (assumed, without 

deciding, doctrine of promissory estoppel applies; held, however, 

elements not proved). Today, however, we hold that promissory 

estoppel is not a cognizable cause of action in the Commonwealth, 

and we decline to create such a cause of action. See Virginia 

School of the Arts v. Eichelbaum, 254 Va. ___, ___, ___ S.E.2d 

___, ___ (1997) (this day decided); Ward's Equipment v. New 

Holland North America, 254 Va. ___, ___, ___ S.E.2d ___, ___ 

(1997) (this day decided). 

 V 

 In sum, we hold that no enforceable contract for the sale of 
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digitizers by Schafer to Cordant existed, and, with respect to 

Lenzar, promissory estoppel is not a cognizable cause of action. 

 Accordingly, the judgment of the trial court will be reversed in 

each appeal and final judgment will be entered in favor of 

Schafer and of Lenzar. 

Record No. 961945 -- Reversed and final judgment. Record No. 961964 -- Reversed and final judgment.