Ridge Runner Forestry v. Veneman, 01-1233.

• Citation: 287 F.3d 1058
• Decision Date: 18 April 2002
• Docket Number: No. 01-1233.,01-1233.
• Parties: RIDGE RUNNER FORESTRY, Appellant, v. Ann M. VENEMAN, Secretary of Agriculture, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

287 F.3d 1058

RIDGE RUNNER FORESTRY, Appellant, v. Ann M. VENEMAN, Secretary of Agriculture, Appellee.

No. 01-1233.

United States Court of Appeals, Federal Circuit.

DECIDED: April 18, 2002.

COPYRIGHT MATERIAL OMITTED

Terrence M. O'Connor, Law Office of Terrence M. O'Connor, of Alexandria, VA, argued for appellant.

Maureen A. Delaney, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for appellee. With her on the brief were Stuart Schiffer, Acting Assistant Attorney General; David M. Cohen, Director; Mark Melnick, Assistant Director.

Before MAYER, Chief Judge, CLEVENGER and GAJARSA, Circuit Judges.

MAYER, Chief Judge.

Ridge Runner Forestry appeals from the decision of the Department of Agriculture Board of Contract Appeals dismissing its cause of action for lack of jurisdiction pursuant to 41 U.S.C. §§ 601-613. In re Ridge Runner Forestry, AGBCA No. 2000-161-1, 2001 WL 170915 (Feb. 13, 2001). Because no contract had been formed, we affirm the board's decision.

Background

Ridge Runner Forestry is a fire protection company located in the Pacific Northwest. In response to a request for quotations ("RFQ") issued by the Forestry Service, Ridge Runner submitted a proposal and ultimately signed a document entitled Pacific Northwest Interagency Engine Tender Agreement ("Tender Agreement"). The Tender Agreement incorporated the RFQ in its entirety, including the following two provisions in bold faced lettering: (1) "Award of an Interagency Equipment Rental Agreement based on response to this Request for Quotations (RFQ) does not preclude the Government from using any agency or cooperator or local EERA resources"; and (2) "Award of an Interagency Equipment Rental Agreement does not guarantee there will be a need for the equipment offered nor does it guarantee orders will be placed against the awarded agreements." Request for Quotation, No. R6-99-117 (March 29, 1999). Additionally, because the government could not foresee its actual equipment needs, the RFQ contained language that allowed the contractor to decline the government's request for equipment for any reason: "Because the equipment needs of the government and availability of contractor's equipment during an emergency cannot be determined in advance, it is mutually agreed that, upon request of the government, the contractor shall furnish the equipment offered herein to the extent the contractor is willing and able at the time of order." Id. (emphasis added). The RFQ also included a clause informing bidders that they would not be reimbursed for any costs incurred in submitting a quotation. Ridge Runner signed Tender Agreements in 1996, 1997, 1998, and 1999. In 1999, it presented a claim for $180,000 to the contracting officer alleging that the Forestry Service had violated an "implied duty of good faith and fair dealing" because Ridge Runner had been "systematically excluded for the past several years from providing services to the Government." In response, the contracting officer told Ridge Runner that she lacked the proper authority to decide the claim. Ridge Runner timely appealed the decision to the Department of Agriculture Board of Contract Appeals. The board granted the government's motion to dismiss concluding that because no contract had been entered into, it lacked jurisdiction under the Contract Disputes Act ("CDA"), 41 U.S.C. §§ 601-613.

Discussion

We have jurisdiction over an appeal from a decision of an agency board of contract appeals by virtue of 28 U.S.C. § 1295(a)(10). The board's jurisdiction under the CDA requires, at a minimum, a contract between an agency and another party. 41 U.S.C. § 607(d) (1994, amended in 2000). Therefore, the threshold matter is whether the Tender Agreements constituted contracts between the parties, which is a question of law that we review de novo. See Oman-Fischbach Int'l v. Pirie, 276 F.3d 1380, 1383 (Fed.Cir.2002).

"To be valid and enforceable, a contract must have both consideration to ensure mutuality of obligation ... and sufficient definiteness so as to `provide a basis for determining the existence of a breach and for giving an appropriate remedy.'" Ace-Federal Reporters, Inc. v. Barram, 226 F.3d 1329, 1332 (Fed.Cir.2000) (internal citations omitted). "To constitute consideration, a performance or a return promise must be bargained for." Restatement (Second) of Contracts § 71(1) (1979). And the "promise or apparent promise is not consideration if by its terms the promisor or purported promisor reserves a choice of alternative performances...." Id. § 77.

Ridge Runner argues that the Tender Agreement was a binding contract that placed specific obligations upon the government; namely, the government was obligated to call upon Ridge Runner, and the other winning vendors, for its fire fighting needs, and in return, the vendors were to remain ready with acceptable equipment and trained staff to answer the government's call. This, Ridge Runner argues, places the alleged contract squarely within our holding in Ace-Federal, 226 F.3d 1329...