ARMED SERVICES BOARD OF CONTRACT APPEALS

OPINION BY ADMINISTRATIVE JUDGE SMITH

ON RESPONDENT’S MOTION TO DISMISS

Appellant, Hallym Furniture Industrial Co., Ltd. (Hallym), appeals a 

contracting officer’s final decision (COFD) that denied Hallym’s certified claim 

seeking reinstatement of its Blanket Purchase Agreement (BPA) with Respondent,

Department of the Army 411th Contracting Support Brigade, Korea (the government). 

Alternatively, Hallym’s claim sought an equitable adjustment for three different types 

of costs arising from the cancellation of the BPA in the total amount of 169,500,000 

Korean won (approximately $151,287.95).1 The government has moved to dismiss the 

appeal, arguing that the BPA is not a valid contract as required by the Contract 

Disputes Act (CDA), therefore the Board lacks subject matter jurisdiction over 

Hallym’s appeal. Hallym argues that the BPA is a contract because Hallym could not 

refuse a call order once it was issued. On balance, we find that this BPA is similar in 

nature to other BPAs that the Court of Appeals for the Federal Circuit has held to be 

non-contractual, thus we dismiss the appeal for lack of jurisdiction. 

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

On April 6, 2020, the parties executed BPA No. W91QVN-20-A-0012 for 

repair of Government-owned wooden furniture. (R4, tab 1) The BPA indicates that 

the BPA “is not a contract” (id. at 52), but the BPA contains contrary descriptive 

verbiage as well.3 The BPA provided that individual repairs or groups of repairs 

 1 The symbol for Korean won is “₩” so Hallym’s total claim amount is shown as 

“₩169.5M.” 2 Paragraph 2 of the Performance Work Statement reads: “TERM OF BPA: This BPA 

is not a contract. If the contractor fails to perform in a manner satisfactory or 

no longer required by the government, this BPA may be cancelled with 30 days 

written notice to the contractor by the Contracting Officer (KO).” (R4, tab 1

at 5)

3 For example, and most notably, “Type of Contract. The government contemplates 

award of a Fixed Unit Price, Multiple BPA’s contract resulting from this 

solicitation.” (R4, tab 1 at 21) (emphasis omitted). Also, “[t]he Contractor 

Appeal of - )

)

Hallym Furniture Industrial Co., Ltd. ) ASBCA No. 62782

)

Under Contract No. W91QVN-20-A-0012 )
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would be separately issued as “purchases” or “calls” or “call orders.”4 (Id. at 8) The 

BPA provided that call orders would be issued on a rotating basis between Hallym and 

other awardee contractor(s). (Id. at 8) The BPA did not commit the government to 

issue any call orders. Instead, paragraph 13 of the Performance Work Statement 

provides that the government’s obligation arises only from call orders actually made 

under the BPA: “EXTENT OF OBLIGATION: The Government is obligated under 

this BPA only to the extent of authorized purchases [i.e. call orders] actually made 

under the BPA.” (Id. at 8) The BPA indicates that “[t]he Government may require 

continued performance of any services within the limits and at the rates specified in

the contract” (id. at 21).

After award of the BPA, the Government issued ten call orders that were 

performed by Hallym. (R4, tab 10 at 5, 7; gov’t reply at 4 (“appellant . . . performed 

all of the ordered repair work.”)) Disagreements arose, however, with regard to the 

prices used by Hallym in its invoices, which were higher than in Hallym’s BPA price

proposal. (R4, tabs 13, 17-18, 23-27) To correct what it perceived to be defects in 

Hallym’s invoices, the government itself generated the final invoice for Hallym’s work 

(R4, tab 21; app. supp. R4, tab 4), but there is no evidence that the final invoice has 

been paid. ((gov’t. reply br. at 5) (Appellant has not signed or acknowledged the final 

invoice)).

Based upon the government’s opinion regarding Hallym’s “unsatisfactory 

performance” relating to the invoices, the contracting officer notified Hallym on 

September 21, 2020, that the BPA would be cancelled in 30 days because “[Hallym] 

failed to perform this BPA services (sic) in a manner satisfactory to the Government.”

(R4, tab 20)5 A written dialogue ensued where Hallym attempted to persuade the 

contracting officer to retract the cancellation notice. (R4, tabs 22-27) The dialogue 

 

shall maintain own facility (minimum of 198m2 [60 Pyeong]) to perform this 

contract requirements (sic) for the entire contract period.” (Id. at 8) Also, 

“[t]he Government may require continued performance of any services within 

the limits and at the rates specified in the contract.” (Id. at 21) A word search 

of the BPA finds 45 uses of the word “contract,” many of which are incidental 

like “Section I -- Contract Clauses” (id. at 14), but approximately 10 of which 

are not i.e. the clauses cited above. A document that the government intends 

not to be a contract should minimize use of the word “contract.” Instead, 

“BPA” should be used to describe the agreement. 4 The BPA uses all three terms to refer to the repair orders issued under the BPA. For 

purposes of this decision, we use the term “call orders.”

5 The BPA provides that “[i]f the contractor fails to perform in a manner satisfactory 

or no longer required by the Government, this BPA may be cancelled with 

30 days written notice to the contractor by the Contracting Officer.” (R4, tab 1 

at 5)
3

devolved into allegations by both parties of “lack of business integrity and ethical 

business practices” (the government’s allegation against Hallym, (R4, tab 24 at 2; see 

also gov’t. reply br. at 2)) and a “gross administrative error” and improper or illegal 

changes to government documents (Hallym’s allegations against the government). 

(Complaint at 6; see R4, tab 25)

When the government refused to withdraw the cancellation notice, instead 

finalizing the cancellation on November 11, 2020, (R4, tab 27), Hallym submitted a 

certified claim on November 25, 2020, seeking reinstatement of the BPA or, in the 

alternative, ₩169.5M for bid preparation costs, facility lease costs, and lost future 

profits – but not for payment of the government-generated invoice. (R4, tab 28) The 

government denied Hallym’s claim in full with a COFD issued on December 7, 2020. 

(R4, tab 29) The COFD addressed each of Hallym’s claim allegations regarding the 

BPA bid, award, price, invoice process, and claimed financial injuries as well as the 

government’s basis for canceling the BPA. Id. This appeal timely followed the COFD.

DECISION

I. Standard of Review

We review the government’s motion to dismiss for lack of jurisdiction pursuant 

to the standards of FED. R. CIV. P..12(b)(1). L-3 Commc’ns Integrated Sys., L.P., 

ASBCA Nos. 60713, 60716, 17-1 BCA ¶ 36,865 at 179,624 (applying Rule 12(b)(1) 

because Board may look to Federal Rules of Civil Procedure for guidance where 

Board’s rules are silent). When a motion to dismiss pursuant to FED. R. CIV. P.

12(b)(1) denies or controverts allegations of jurisdiction, only uncontroverted factual 

allegations are accepted as true for purposes of the motion, and other facts underlying 

the jurisdictional allegations are subject to fact-finding based on the Board’s review of 

the record. Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-84 (Fed. Cir. 

1993); CCIE & Co., ASBCA Nos. 58355, 59008, 14-1 BCA ¶ 35,700 at 174,816.

The government’s motion distinguishes between a facial attack on the Board’s 

jurisdiction and a factual attack, and the different standards that apply to our review of 

factual allegations (gov’t. reply br. at 2-3). Though this digression is not incorrect, it 

is unnecessary because the government’s motion to dismiss essentially relies upon no 

facts at all save for the BPA itself and, perhaps, the written content of Hallym’s 

certified claim. Hallym, as the proponent of the Board’s jurisdiction, bears the burden 

of proving the Board’s subject matter jurisdiction by a preponderance of the evidence, 

which includes showing the existence of a valid contract. See 41 U.S.C. § 7105(e)(2); 

General Mills, Inc. v. United States, 957 F.3d 1275, 1284 (Fed. Cir. 2020); Reynolds v. 

Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988); United Healthcare 

Partners, Inc., ASBCA No. 58123, 13 BCA ¶35,277 at 173,156. See also Crewzers 

Fire Crew Transp., Inc. v. United States, 741 F.3d 1380, 1382 (Fed. Cir. 2014).
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II. BPAs are Generally not Contracts, and the BPA Here is no Exception

Fundamental contract law dictates that there can be no contract without mutual

obligations between the parties. 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). Specifically, the Court of Appeals for the Federal Circuit has held that BPAs 

that do not impose binding obligations upon the parties are not contracts. Crewzers, 

741 F.3d at 1384; Modern Sys. Tech. Corp. v. United States, 979 F.2d 200, 206 (Fed. 

Cir. 1992) (“absence of mutuality of obligation leads to the conclusion that the parties 

lacked the requisite contractual intent”); see also See Ridge Runner Forestry v. 

Veneman, 287 F.3d 1058 (Fed. Cir. 2002).6 In particular, where the government is not 

obligated to place call orders, as here, the BPA “reflect[s] illusory promises that do not 

impose obligations on either party.” Crewzers, 741 F.3d at 1382–83. 

The government’s reliance upon Crewzers and Modern Sys. Tech. is apt, albeit 

with a caveat. Despite the clause stating that “[t]his BPA is not a contract” here, the 

parties do not address the fact that the BPA also contains numerous clauses, discussed 

above, that refer to the document as a “contract.” (See, e.g. R4, tab 1 at 21 (Type of 

Contract)) While the internal contradictions in the BPA here, and the government’s 

failure to address them, present a slightly different factual predicate than that found in

Crewzers and Modern Sys. Tech.,

7 the government’s motion goes beyond the 

conclusory self-characterization in the BPA and demonstrates that the nature of the 

BPA itself is, in fact, non-contractual. For example, as in Crewzers and Modern Sys. 

Tech, Hallym’s BPA did not require either party to take action until a call order was 

placed and accepted, supplying the consideration and mutual obligations missing from 

the BPA to create a contractual relationship between the parties. Thus, Hallym’s BPA 

is “a set of ground rules as it were, and no obligations are assumed by either party until 

orders are given by the Government and accepted by the contractor.” Modern Sys

Tech., 979 F.2d 200 at 204. On that key question, Crewzers and Modern Sys. Tech. 

are on point and we hold that the BPA here lacks mutual obligations and therefore is 

not a binding contract.

 6 The government also cites to McLeod Grp. v. United States, 840 F. App’x 525 (Fed. 

Cir. 2020), an unpublished Federal Circuit decision, and Zhengxing v. United 

States, 204 F. App’x 885 (Fed. Cir. 2006), which is “not citable as precedent.” 

Rather than rely upon unpublished and non-precedential decisions, we instead 

refer primarily to Crewzers and Modern Sys. Tech., which are valid and binding 

precedent and, except as noted below, on point with this appeal. 7 Our review of Crewzers, Modern Sys. Tech., McLeod and Zhengxing found no 

indication of similar internal contradictions in those BPAs.
5

The government’s hypotheticals at pages 12-13 of its reply brief, that the Board 

would not possess jurisdiction if the Government had simply stopped issuing call 

orders to Hallym instead of canceling the BPA, or if the Government had cancelled the 

BPA for a reason unrelated to Hallym’s contract performance, or without stating a 

reason at all, is persuasive and further illustrates the non-obligatory, therefore noncontractual nature of the BPA. By plain reading of the provision that permits the 

cancelation of the BPA upon 30 days notice, the government had the prerogative to do 

exactly what it did here – cancel the BPA for any reason or none at all, and certainly 

when the government became dissatisfied with Hallym’s performance related to its

invoices. 

Hallym attempts to distinguish its BPA from those found not to be contracts by 

arguing that Hallym could not refuse call orders once they were issued by the 

government, a so-called obligation not found in Crewzers that, Hallym argues, makes 

the BPA a valid contract (app. br. at 7-14). Even if true, that still does not provide 

sufficient contract consideration or a mutual obligation that makes the BPA a contract

where the government is under no obligation to issue any call orders. See Modern 

Sys., 979 F.2d at 204 (citing Gavin, Gov’t 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”). And we do not agree with Hallym’s contract 

interpretation anyway. The BPA here provided that the government’s obligations were 

created upon issuance of call orders (R4, tab 1 at 8), which must apply equally to 

Hallym – the parties’ mutual obligations do not arise until the government initiates a 

call order that is accepted by Hallym. Modern Sys. Tech., 979 F.2d at 204. The BPA

here did not contain an express provision where Hallym would only perform call 

orders that it was “willing and able” to perform, as existed in Crewzers, 741 F.3d 

at 1381. It also did not explicitly provide that “[e]ach order that the [government] 

places and the contractor accepts becomes an individual contract,” as in Modern Sys. 

Tech., 979 F.2d at 204 (emphasis added). But these clauses are little more than helpful 

statements of the obvious – each call order cannot become a contract until there is an 

offer and acceptance. As a result, the lack of a similar clause does not transform

Hallym’s BPA into a contract. 

III. The Board’s Jurisdiction is Limited to Call Order Claims, but None are 

Presented Here

As discussed above, although Hallym and the government were parties to ten

call orders, each of which was undisputedly a contract within the purview of the 
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CDA,8 the BPA itself is not a contract and, contrary to Hallym’s argument at page 14 

of its opposition, Hallym’s claim does not allege injury or costs related to the 

performance of Hallym’s ten call orders. (R4, tab 28) As the government noted in its 

Answer at 57, Hallym may have some right to submit a call order claim if it suffered 

recoverable damages during call order performance (including, it appears, to seek 

payment upon the final invoice), but such claims were not made in Hallym’s certified 

claim, were not addressed in the COFD, and we have no authority to adjudicate them 

in this appeal. 

CONCLUSION

The government’s motion is GRANTED and the appeal is DISMISSED for 

lack of jurisdiction.

Dated: September 2, 2021

BRIAN S. SMITH

Administrative Judge

Armed Services Board

of Contract Appeals

(Signatures continued)

 8 The government’s motion acknowledges that the call orders issued to Hallym were 

CDA contracts. (See, e.g., gov’t. reply br. at 9 (Upon the placement of a call 

order under a BPA, the call would become the contract, which then adopts the 

terms of the BPA; as a matter of law, for purposes of Contract Disputes Act 

jurisdiction; thus making ‘any interpretation required of the terms of the BPA . . 

. an interpretation of the terms of [the call orders placed under the BPA] since 

those orders were the vehicles that formed the contracts.)) (quoting HewlettPackard Co., ASBCA Nos. 57940, 57941, 13 BCA ¶ 35,366 at 173,548).
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I concur

RICHARD SHACKLEFORD

Administrative Judge

Acting Chairman

Armed Services Board

of Contract Appeals

I concur

J. REID PROUTY 

Administrative Judge

Vice Chairman

Armed Services Board

of Contract Appeals

I certify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals in ASBCA No. 62782, Appeal of Hallym 

Furniture Industrial Co., Ltd., rendered in conformance with the Board’s Charter.

Dated: September 2, 2021 

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals