NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

MCLEOD GROUP, LLC,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________

2020-1389

______________________

Appeal from the United States Court of Federal Claims 

in No. 1:18-cv-00628-LKG, Judge Lydia Kay Griggsby.

______________________

Decided: December 17, 2020

______________________

RICHARD P. RECTOR, DLA Piper LLP (US), Washington, 

DC, argued for plaintiff-appellant. Also represented by 

THOMAS EDWARD DALEY, DAWN STERN; JOSHUA B. DUVALL, 

Matross Edwards, LLC, Washington, DC. 

 SONIA W. MURPHY, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by JEFFREY B. CLARK, ROBERT EDWARD KIRSCHMAN,

JR., PATRICIA M. MCCARTHY. 

 ______________________

Case: 20-1389 Document: 29 Page: 1 Filed: 12/17/2020
2 MCLEOD GROUP, LLC v. UNITED STATES

Before NEWMAN, LOURIE, and CHEN, Circuit Judges.

LOURIE, Circuit Judge.

McLeod Group, LLC (“McLeod”) appeals from a decision of the United States Court of Federal Claims (the 

“Claims Court”) dismissing Counts I, II, and V of McLeod’s 

complaint for lack of subject matter jurisdiction. See 

McLeod Grp., LLC v. United States, 142 Fed. Cl. 558

(2019). The court held that a blanket purchase agreement 

(“BPA”) between McLeod and the United States Department of Homeland Security (“DHS”) was not a binding contract subject to appellate jurisdiction under the Tucker Act, 

28 U.S.C. § 1491(a). For the reasons below, we affirm.

BACKGROUND

On September 29, 2011, DHS awarded a BPA to 

McLeod to, inter alia, provide DHS with management consulting services and to evaluate and recommend improvements in organizational structure, mission, and 

organization of core lines of business. The BPA states that 

the agreement “does not obligate any funds” and that “Task 

Orders will be placed against this BPA by DHS” for particular services. J.A. 84; J.A. 86. There is no dispute in this 

case that the task orders issued pursuant to the BPA, as 

opposed to the BPA itself, are contractual agreements. The 

BPA also states that the agreement is “not a contract” with 

the government. J.A. 86.

DHS issued seven task orders to McLeod under the 

BPA, during the period of September 30, 2011 through 

September 11, 2014. On October 4, 2016, McLeod submitted a certified claim to the DHS contracting officer alleging, 

inter alia, that DHS failed to execute its contractual responsibilities under the BPA in a good-faith and trusted 

manner, and that the agency acted in bad faith by not issuing additional within-scope task orders to McLeod. The 

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MCLEOD GROUP, LLC v. UNITED STATES 3

DHS contracting officer denied McLeod’s claim on May 3, 

2017 for failure to articulate a proper basis for the claim.

McLeod filed a complaint in the Claims Court on 

May 2, 2018, alleging that various DHS offices and officers 

breached their contractual obligations, acted in bad faith, 

and abused their discretion in the performance and administration of McLeod’s BPA and task orders. On August 31,

2018, DHS filed a partial motion to dismiss Counts I, II, 

and V (the “BPA claims”) of McLeod’s complaint for lack of 

subject matter jurisdiction. The court granted the government’s motion on April 4, 2019. It held that it did not possess jurisdiction to consider the BPA claims because 

McLeod failed to “establish that the BPA itself is a contract” with the government “that can be relied upon to establish [subject matter] jurisdiction in this case.” McLeod 

Grp., LLC v. United States, 142 Fed. Cl. 558, 563–65

(2019). After reviewing the complaint and the BPA, the 

court found that there is an “absence of mutuality of consideration in the BPA” and that the BPA language shows 

that the parties did not intend for the BPA to be a contract. 

J.A. 13–14. On October 30, 2019, McLeod filed an unopposed motion for entry of partial final judgment with respect to the BPA claims, which the Claims Court granted 

on November 14, 2019. McLeod timely filed a notice of appeal on January 13, 2020.

DISCUSSION

We review de novo the decision of the Court of Federal 

Claims to dismiss for lack of subject matter jurisdiction

pursuant to Rule 12(b)(1) of the Rules of the United States 

Court of Federal Claims. RadioShack Corp. v. United 

States, 566 F.3d 1358, 1360 (Fed. Cir. 2009). Under the 

Tucker Act, the Claims Court has “jurisdiction to render 

judgment upon any claim against the United States 

founded . . . upon any express or implied contract with the 

United States[.]” 28 U.S.C. § 1491(a)(1). The Tucker Act 

also gives the court jurisdiction over claims or disputes 

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4 MCLEOD GROUP, LLC v. UNITED STATES

arising under the Contract Disputes Act. See id.

§ 1491(a)(2); 41 U.S.C. § 7104(b)(1); see also Crewzers Fire 

Crew Transp., Inc. v. United States, 741 F.3d 1380, 1382

n.1 (Fed. Cir. 2014). “The party invoking jurisdiction has 

the burden to show compliance with the Tucker Act.” 

Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1324 

(Fed. Cir. 1997) (citing Reynolds v. Army & Air Force Exch. 

Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)). “To invoke the 

Court of Federal Claims’s jurisdiction under the Tucker 

Act, a contractor must first show that its claims arose out 

of a valid contract with the United States.” Crewzers, 741 

F.3d at 1382.

A contract with the government requires (1) mutuality 

of intent, (2) consideration, (3) an unambiguous offer and 

acceptance, and (4) actual authority on the part of the government’s representative to bind the government in contract. See Kam-Almaz v. United States, 682 F.3d 1364, 

1368 (Fed. Cir. 2012); Night Vision Corp. v. United States, 

469 F.3d 1369, 1375 (Fed. Cir. 2006). A failure of any of 

these requirements precludes the existence of a valid contract. Thus, an “absence of mutuality of obligation leads to 

the conclusion that the parties lacked the requisite contractual intent.” Modern Sys. Tech. Corp. v. United States, 979 

F.2d 200, 206 (Fed. Cir. 1992). Agreement language placing no obligation on a contractor to accept an order from 

the government “cannot provide the consideration necessary to create a binding contract.” Crewzers, 741 F.3d at 

1383. This court has held that BPAs that do not impose 

any binding obligations on the parties are not contracts. 

See id. at 1384.

McLeod argues that the Claims Court erred by applying a heightened pleading standard that required McLeod 

to establish the existence of a contract rather than merely 

a non-frivolous allegation of a contract with the government. Appellant’s Br. 12. McLeod argues that jurisdiction 

is not defeated by the possibility that the averments might

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MCLEOD GROUP, LLC v. UNITED STATES 5

fail to state a cause of action on which petitioners could actually recover, and the normal disposition would be to dismiss the complaint for failure to state a claim, rather than 

for want of jurisdiction. Id. at 14. McLeod asserts that 

when the existence of the contract turns on questions of 

fact and the terms of the contract in dispute, the Court of 

Federal Claims must first take jurisdiction before deciding 

contract term meanings. Id. According to McLeod, if dismissal is warranted because the alleged contract does not 

exist, the proper basis for such a dismissal is failure to 

state a claim upon which relief can be granted. Id. McLeod 

asserts that it made a non-frivolous allegation that the 

BPA is a binding contract; thus, the Claims Court has jurisdiction over the BPA claims and dismissal was unwarranted.

McLeod alleges that the BPA includes all the required 

elements of a binding contract. Regarding mutuality of intent, McLeod asserts that the issuance and performance of 

seven task orders pursuant to the BPA support McLeod’s 

allegation that the BPA is a mutually acknowledged and 

binding agreement between the parties. Appellant’s Br. 

19. With regard to whether the BPA lacks consideration, 

McLeod asserts that it credibly alleged that both McLeod 

and DHS provided valuable consideration. McLeod argues 

that DHS provided consideration by promising that 

McLeod would be afforded the opportunity to bid on all 

available opportunities under the BPA. Appellant’s Br. 

26–27. McLeod argues that various BPA provisions impose 

obligations on McLeod that relate independently to the 

BPA, including that McLeod “shall be required” to “[a]ttend 

a post-award kickoff meeting.” J.A. 92; Appellant’s Br. 26.

The government responds that the Claims Court applied the proper pleading standard by requiring McLeod to 

demonstrate the existence of a valid contract in order to 

invoke the court’s subject matter jurisdiction. The government argues that the court properly required McLeod to 

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6 MCLEOD GROUP, LLC v. UNITED STATES

allege facts that would establish that the BPA is a contract, 

a showing that McLeod could not make, given precedent 

holding that a BPA like McLeod’s is not a contract. Appellee’s Br. 14. According to the government, the court 

properly found that McLeod did not meet that burden by

failing to show at least mutuality of intent and consideration. Id. at 19. The government thus contends that the 

Court of Federal Claims properly dismissed the BPA 

claims for lack of subject matter jurisdiction. Id. at 9.

We agree with the government, and the Claims Court,

that McLeod failed to present a non-frivolous allegation 

that the BPA at issue here is a binding contract. To invoke 

the Claims Court’s jurisdiction under the Tucker Act and 

the Contract Disputes Act, a contractor must show that its 

claims arose out of a valid contract with the United States. 

See 28 U.S.C. § 1491(a)(1); 28 U.S.C. § 1491(a)(2); 

Crewzers, 741 F.3d at 1382. The Claims Court may dismiss 

a claim for lack of subject matter jurisdiction if the plaintiff 

fails to present a non-frivolous allegation that the underlying contract exists. See id. If an agreement is plainly not 

a contract on its face, then the agreement is insufficient to 

establish subject matter jurisdiction in the Claims Court 

under the Tucker Act. On its face, McLeod’s BPA lacks 

both mutuality of intent and mutuality of consideration.

First, we note that our previous decision in Crewzers

essentially controls this case. With regard to the BPA in 

Crewzers, similar to McLeod’s BPA, the government in that 

case was not required under the terms of the BPAs to place 

any orders with the contractor. Crewzers, 741 F.3d at 1383. 

Likewise, the contractor was free to not accept any orders. 

Id. The BPAs at issue in Crewzers “reflect[ed] illusory 

promises that do not impose obligations on either party.” 

Id. at 1382–83. Thus, this case is essentially indistinguishable from Crewzers.

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MCLEOD GROUP, LLC v. UNITED STATES 7

Further, and contrary to McLeod’s allegations, the BPA 

here lacks mutuality of intent. The BPA explicitly states 

that the agreement is “not a contract” with the government. J.A. 86. The issuance of task orders pursuant to the 

BPA, while themselves presumably contracts, does not 

transform the BPA into a contract. The Claims Court 

found McLeod’s reasoning on this issue not persuasive, and 

we agree. See J.A. 15. The absence of mutuality of obligation, as indicated infra, also supports a conclusion that the 

parties lacked the requisite contractual intent. We therefore conclude that, with regard to the BPA itself, McLeod

failed to plausibly allege a mutual intent to contract with 

the government.

We also agree with the government that the BPA also 

lacks mutual consideration. For example, McLeod did not 

identify any performance obligation placed on the government under the BPA, financial or otherwise. The BPA 

states that the agreement “does not obligate any funds,”

J.A. 84, which pretty much negates the idea of a contract. 

And we agree with the Claims Court that the BPA did not 

require the government to place any task orders. See J.A. 

14. The ability of the government to offer McLeod an opportunity to accept task orders as set forth in the BPA is 

not consideration. Regarding McLeod’s alleged obligations 

under the BPA, most of the alleged obligations McLeod 

identified are pursuant to task orders as provided for by 

the BPA terms. The sole requirement for McLeod to attend 

a post-award kickoff meeting does not in itself create sufficient mutual consideration in this case, where the alleged 

contract would require real performance as opposed to 

merely attending a meeting.

The BPA provides that the performance obligations 

will be specified in the task orders issued pursuant to the 

BPA. See, e.g., J.A. 84 (“Delivery”); J.A. 86 (“Task Orders”); 

J.A. 87 (“Place of Performance”). The BPA provides “the 

ordering procedures” for “services ordered under this BPA.” 

Case: 20-1389 Document: 29 Page: 7 Filed: 12/17/2020
8 MCLEOD GROUP, LLC v. UNITED STATES

J.A. 89; J.A. 84. The task orders would presumably constitute contracts while the BPA does not. An agreement like

the BPA at issue in this case is not binding upon the government where no funds are obligated and the parties fail 

to plausibly allege that any other provision provides mutual consideration necessary to create a binding contract. 

See Modern Sys., 979 F.2d at 204 (citing Gavin, Government Requirements Contracts, 5 Pub. Cont. L.J. 243, 246 

(1972)) (“Usually the parties merely arrange to do business 

when the government places an order at the unit price 

named in the [BPA]. In such an agreement, there is nothing in writing which requires the government to take any 

ascertainable quantity or amount.”).

CONCLUSION

We have considered McLeod’s remaining arguments 

but find them unpersuasive. For the reasons stated above, 

we affirm the decision of the Claims Court.

AFFIRMED

Case: 20-1389 Document: 29 Page: 8 Filed: 12/17/2020