741 F.3d 1380 (Fed. Cir. 2014), 2013-5104, Crewzers Fire Crew Transport, Inc. v. United States

Docket Nº:2013-5104, 2013-5105.
Citation:741 F.3d 1380
Opinion Judge:REYNA, Circuit Judge.
Party Name:CREWZERS FIRE CREW TRANSPORT, INC., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
Attorney:Cyrus E. Phillips, IV, Albo & Oblon, L.L.P., of Arlington, Virginia, argued for plaintiff-appellant. Ellen M. Lynch, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief were Stua...
Judge Panel:Before RADER, Chief Judge, CLEVENGER, and REYNA, Circuit Judges.
Case Date:February 06, 2014
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1380

741 F.3d 1380 (Fed. Cir. 2014)

CREWZERS FIRE CREW TRANSPORT, INC., Plaintiff-Appellant,

v.

UNITED STATES, Defendant-Appellee.

Nos. 2013-5104, 2013-5105.

United States Court of Appeals, Federal Circuit.

February 6, 2014

Cyrus E. Phillips, IV, Albo & Oblon, L.L.P., of Arlington, Virginia, argued for plaintiff-appellant.

Ellen M. Lynch, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, Bryant G. Snee, Deputy Director, and Shelley D. Weger, Trial Attorney. Of counsel on the brief was Azine Farzami, Attorney, Office of the General Counsel, General Law Division, United States Department of Agriculture, of Washington, DC.

Page 1381

Before RADER, Chief Judge, CLEVENGER, and REYNA, Circuit Judges.

REYNA, Circuit Judge.

Crewzers Fire Crew Transport, Inc. (" Crewzers" ) appeals from two related decisions of the United States Court of Federal Claims dismissing its causes of action for lack of jurisdiction. See Crewzers Fire Crew Transport, Inc. v. United States, 111 Fed.Cl. 148 (2013) (" Crewzers I " ); Crewzers Fire Crew Transport, Inc. v. United States, 111 Fed.Cl. 267 (2013) (" Crewzers II " ). In each decision, the trial court held that a blanket purchase agreement (" BPA" ) between Crewzers and the United States Forest Service was not a binding contract invoking jurisdiction under the Tucker Act, 28 U.S.C. § 1491(a). For the reasons below, we affirm.

I.

On March 30, 2011, Crewzers became one of several awardees under a BPA with the Forest Service to provide crew carrier buses. These buses are heavy duty vehicles used to transport fire crews to wildfires and other disaster areas located within regional and national wilderness zones. Two weeks later, on April 11, 2011, Crewzers was awarded another multiple-award BPA from the Forest Service, this time to provide flame retardant tents to disaster areas as needed. Both BPAs established dispatch priority lists that ranked each awardee's available resources ( e.g., crew carrier buses or flame retardant tents) within each of six geographic zones. When an emergency arose, the Forest Service was to submit an order for the highest-ranked ( i.e., lowest-priced) resource available on the dispatch priority list within the relevant geographic zone. Once the Forest Service submitted an order for a particular resource and the contractor decided to accept the order, a contract was formed and the contractor was obligated to provide the requested resource in response to the identified emergency. These BPAs are thus appropriately characterized as frameworks for future contracts— " 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. Corp. v. United States, 979 F.2d 200, 204 (Fed.Cir.1992) (internal quotations omitted).

According to the agreements, " If a Contractor cannot be reached or is not able to meet the time and date needed, the dispatcher may proceed with contacting the next resource on the dispatch priority list." BPA § D.6.5.1. The Forest Service was also given the discretion to deviate from these dispatch priority lists as needed to respond effectively to actual fire conditions. The BPAs explicitly provided that any such deviations would " not be deemed a violation of any term or condition of this Agreement." BPA § D.6.1.c.

Because of the sporadic and unpredictable nature of wildfires and other emergencies, the Forest Service did not make any guarantee that it would actually place orders under these BPAs. By the same token, the terms of the BPAs required Crewzers to accept orders only to the extent it was " willing and able[,]" as noted in the clause below:

This solicitation will result in multiple agreements. The dollar limitation for any individual order is $150,000.00...

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