IN THE UNITED STATES COURT OF FEDERAL CLAIMS

Transcription

1 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 1 of 48 IN THE UNITED STATES COURT OF FEDERAL CLAIMS Number C Judge Susan G. Braden CREWZERS FIRE CREW TRANSPORT, INC., v. Plaintiff, THE UNITED STATES, Defendant. PLAINTIFF S BRIEF IN SUPPORT OF RESPONSE TO MOTION TO DISMISS Cyrus E. Phillips IV ALBO & OBLON, L.L.P. Courthouse Plaza 2200 Clarendon Boulevard, Suite 1201 Arlington, Virginia Attorney for Plaintiff, Crewzers Fire Crew Transport, Incorporated

2 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 2 of 48 TABLE OF CONTENTS TABLE OF AUTHORITIES ii-vii ISSUES PRESENTED COUNTER STATEMENT OF FACTS ARGUMENT I. THE I-BPA, THE DPLS, AND THE RESOURCE ORDERS BASED ON THOSE DPLS CONSTITUTE SETS OF PROMISES, A CONTRACT, FOR THE BREACH OF WHICH THE CONTRACT DISPUTES PROVISIONS GIVE A REMEDY II. THIS COURT POSSESSES JURISDICTION TO ORDER CREWZERS REINSTATEMENT TO THE DPLS TOGETHER WITH JURISDICTION TO ORDER REINSTATEMENT OF CREWZERS I-BPA CONCLUSION CERTIFICATE OF SERVICE i -

3 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 3 of 48 TABLE OF AUTHORITIES STATUTES 28 U.S.C. 1491(a)(2) , 17-18, U.S.C U.S.C. 7102(a) U.S.C. 7102(a)(1) U.S.C. 7102(a)(2) , 16, 17, 23, U.S.C. 7102(a)(3) U.S.C. 7103(a)(1) , 34, U.S.C. 7103(a)(3) , 32, 34, 35, U.S.C. 7103(b)(1) , U.S.C. 7104(b)(1) , 17, 18, 23, U.S.C. 7104(b)(4) ii -

4 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 4 of 48 REGULATIONS Federal Acquisition Regulation 2.101, Contract, 48 C.F.R ( Edition) , 24 Federal Acquisition Regulation Subpart 13.3, Simplified Acquisition Methods, 48 C.F.R. Subpart 13.3 Simplified Acquisition Methods ( Edition) Federal Acquisition Regulation , 48 C.F.R ( Edition) Federal Acquisition Regulation (a)(2), 48 C.F.R (a)(2) ( Edition) Federal Acquisition Regulation Subpart 16.7, Agreements, 48 C.F.R. Subpart 16.7 Agreements ( Edition) Federal Acquisition Regulation , 48 C.F.R ( Edition) Federal Acquisition Regulation (a), 48 C.F.R (a) ( Edition) ,30 RESTATEMENTS RESTATEMENT OF THE LAW, SECOND, CONTRACTS, 1, Contract Defined iii -

5 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 5 of 48 RESTATEMENT OF THE LAW, SECOND, CONTRACTS, 1, Comment c., Set of promises , 23 RESTATEMENT OF THE LAW, SECOND, CONTRACTS, 344, Purposes of Remedies *RESTATEMENT OF THE LAW, SECOND, CONTRACTS, 345, Judicial Remedies Available CASES Almar Industries, Inc. v. United States, 16 Cl. Ct. 243 (1989) Bath Iron Works Corp. v. United States, 20 F.3d 1567 (Fed. Cir. 1994) Cherokee Nation v. Leavitt, 543 U.S. 631 (2005) Crewzers Fire Crew Transport, Inc. v. United States, 98 Fed. Cl. 71 (2011) England v. The Sherman R. Smoot Corp., 388 F.3d 844 (Fed. Cir. 2004) Halim v. United States, Fed. Cl. No C, September 24 th, 2012, 2012 U.S. Claims LEXIS iv -

6 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 6 of 48 Harbert/Lummus Agrifuels Projects v. United States, 142 F.3d 1429 (Fed. Cir. 1998) ICP Northwest, LLC v. United States, 98 Fed. Cl. 29 (2011) Joyce Terry, d/b/a Shirt Shack v. United States, 98 Fed. Cl. 736 (2011) Lauture v. International Business Machines Corp., 216 F.3d 258 (2 nd Cir. 2000) M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323 (Fed. Cir. 2010) , 38 Malone v. United States, 849 F.2d 1441 (Fed. Cir. 1988) Modern Systems Technology Corp. v. United States, 24 Cl. Ct. 360 (1991), opinion adopted, 979 F.2d 200 (Fed. Cir. 1992) Ridge Runner Forestry v. Veneman, 287 F.3d 1058 (Fed. Cir. 2002) Ridge Runner Forestry, AGBCA No , February 13 th, 2001, 2001 AGBCA LEXIS v -

7 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 7 of 48 Spriggs v. Diamond Auto Glass, 165 F.3d 1015 (4 th Cir. 1999) Stone Forest Industries, Inc. v. United States, 973 F.2d 1548 (Fed. Cir. 1992) Tenderfoot Equipment Services v. Department of Agriculture, CBCA No. 1865, July 29 th, 2010, 2010 CIVBCA LEXIS Thompson v. Cherokee Nation, 334 F.3d 1075 (Fed. Cir. 2003) Todd Construction, L.P. v. United States, 656 F.3d 1306 (Fed. Cir. 2011) Universal Shelters of America, Inc. v. United States, 87 Fed. Cl. 127 (2009) VanDesande v. United States, 673 F.3d 1342 (Fed. Cir. 2012) , 30 Walker v. Abbot Laboratories, 340 F.3d 471 (7 th Cir. 2003) Western Pioneer, Inc. v. United States, 8 Cl. Ct. 291 (1985) , 31 - vi -

8 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 8 of 48 Wilner v. United States, 24 F.3d 1397, 1402 (Fed. Cir. 1994) Zhengxing v. United States, 71 Fed. Cl. 732 (2006), aff d, 204 F. App x 885 (Fed. Cir. 2006) vii -

9 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 9 of 48 PLAINTIFF S BRIEF IN SUPPORT OF PLAINTIFF S RESPONSE TO MOTION TO DISMISS ISSUES PRESENTED I. Is This Civil Action Within The Tucker Act Jurisdiction, 28 U.S.C (a)(2), And Within The Contract Disputes Jurisdiction, 41 U.S.C. 7102(a)- (2), 7104(b)(1) Of The United States Court Of Federal Claims? II. May The United States Court Of Federal Claims Award The Specific Relief Requested Consonant With The Contract Disputes Provisions On Which The Court s Jurisdiction Is Based? COUNTER STATEMENT OF FACTS On April 11 th, 2011 Plaintiff Crewzers Fire Crew Transport, Incorporated (Crewzers) was awarded a preseason Incident Blanket Purchase Agreement (I- BPA) for the regional and nationwide hire, if ordered, of two sizes of flame retardant vinyl Tents (Type 3 and Type 4), these Tents to be identified with Company name - 1 -

10 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 10 of 48 and with a unique identification number. Appendix, Tab 6, at This I-BPA was effective for a period of three years from award, or through April 11 th, The dollar limitation for individual Resource Orders placed under this Tent I-BPA was $150,000. Resource Orders under this Tent I-BPA were placed, not by warranted USFS Contracting Officers, but instead by designated USFS personnel and by designated personnel from the National Park Service; from the Bureau of Land Management; from the Bureau of Indian Affairs; from the United States Fish and Wildlife Service; from the Federal Emergency Management Agency; from the State of Montana, Department of Natural Resources and Conservation (Montana DNRC); and from the State of Idaho, Department of Lands. Appendix, Tab 6, at pages , through , ; Declaration of Pilgrim Guinn, at page 2 through 3, December 4 th, The I-BPA set out a series of Prices for two sizes of flame retardant vinyl Tents (Daily Rate, Weekly Rate, Monthly Rate, Delivery/Pickup Charge per mile and Relo

11 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 11 of 48 cation Charge), these Prices for fourteen specific Interagency Dispatch Centers, and these Prices applicable to Resource Orders placed through the listed Interagency Dispatch Centers for specific single or multiple flame retardant vinyl Tents. Appendix, Tab 6, at pages through Internally within USFS Region 1, these Prices were ranked, lowest evaluated Price first, by the USFS Contracting Officer on Dispatch Priority Lists (DPLs) established by her for specific Interagency Dispatch Centers. Resource Orders for specific flame retardant vinyl Tents were then placed by ranked Prices against these DPLs, Appendix, Tab 7, at pages through ; and these Resource Orders were placed through these Interagency Dispatch Centers under an Ordering Protocol for Resources set out in the I-BPA, Appendix, Tab 6, at through Resource Orders were placed by designated personnel from USFS and from other Federal and State Agencies. Appendix, Tab 8, at through ; Tab 9, at through ; Tab 10, at through ; Declaration of Pilgrim - 3 -

12 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 12 of 48 Guinn, at pages 1 through 2, December 4 th, Tent Vendors not listed on these DPLs are excluded from competing under the Ordering Protocol established by the USFS Region 1 Tent I-BPA, this exclusion effective through April 11 th, 2014, the last day of the effective term of the USFS Region 1 Tent I-BPA. Appendix, Tab 6, at ; Amended Complaint, 11., ECF Document Number 7, pages 13 through 14 of 49, filed February 3 rd, 2012; Declaration of Pilgrim Guinn, at pages 3 through 5, December 4 th, The USFS Region 1 Tent I-BPA with Crewzers set out Pricing for three-hundred forty-two total Tents in fourteen specific Interagency Dispatch Centers. Amended Complaint, 12., ECF Document Number 7, page 14 of 49, filed February 3 rd, There were annual reviews of the USFS Region 1 Tent I-BPA, and Tent Contractors were given the right to adjust their Prices and to change the Interagency Dispatch Centers for which they offered a specific hired flame retardant vinyl Tent or Tents. Tent Contractors could not change the offered Tent sizes; Tent Contractors could not - 4 -

13 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 13 of 48 change the other required attributes of the flame retardant vinyl Tents. Appendix, Tab 6, at page USFS Region 1 was not permitted under the Tent I-BPA to make other unilateral Changes in the Tent I-BPA Terms and Conditions. The USFS Region 1 Tent I-BPA included the Contract Terms and Conditions Commercial Items (JUN 2010), Federal Acquisition Regulation , 48 C.F.R (October 1 st, 2010) Provision which explicitly denied USFS Region 1 the right to make unilateral Changes to the Tent I-BPA: (c) Changes. Changes in the terms and conditions of this contract may be made only by written agreement of the parties. Appendix, Tab 4, at page ; Tab 6, at page The USFS Region 1 Tent I-BPA required Crewzers, when receiving a Resource Order, to confirm availability and ability to meet specified timeframes to report to the Base Camp for a wildland fire. If Crewzers could not be reached, or if Crewzers decided it was not available or able to meet the time and date to report to a Base Camp, - 5 -

14 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 14 of 48 then the Resource Order could be offered to the Tent Contractor on the DPL with the next lowest-price. Crewzers was under no obligation to honor a Resource Order. Appendix, Tab 6, at page Neither was an Interagency Dispatch Center, if Crewzers could not meet the time and date to report to a Base Camp, required to offer the Resource Order to another Tent Contractor; rather, an Interagency Dispatch Center could issue a Resource Order anyway. Amended Complaint, 14., ECF Document Number 7, pages 15 through 16 of 49, filed February 3 rd, The USFS Region 1 Tent I-BPA for these flame retardant vinyl Tents explicitly recognized that USFS Region 1 needs for flame retardant vinyl Tents cannot be determined in advance.... Appendix, Tab 6, at ; Declaration of Pilgrim Guinn, page 5, December 4 th, The hired flame retardant vinyl Tent or Tents were required, unless otherwise negotiated, to be set-up by Crewzers within twelve hours after arrival at a Base Camp and had to be taken-down and removed by Crewzers, unless otherwise negotiated, - 6 -

15 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 15 of 48 within twelve hours after the Resource Order for their hire was released. Crewzers was required only to provide basic operating instructions for any equipment furnished with the hired flame retardant vinyl Tent or Tents; Crewzers was not required to provide daily maintenance. Appendix, Tab 6, at through Crewzers was not required under the USFS Region 1 Tent I-BPA to prepare the site where the flame retardant vinyl Tent or Tents were erected, nor was Crewzers required to provide electrical power. Appendix, Tab 6, at The hired flame retardant vinyl Tent or Tents were inspected for compliance with the terms of USFS Region 1 I-BPA upon arrival at the Base Camp. If Ordered flame retardant vinyl Tents were rejected as noncompliant upon arrival at a Base Camp, Crewzers was given notice, and Crewzers was allowed twenty-four hours to bring rejected flame retardant vinyl Tents into compliance. Rejected flame retardant vinyl Tents were to be released from the Base Camp, and rejected flame retardant vinyl Tents were to be removed from the DPLs. Appendix, Tab 6, at

16 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 16 of 48 The I-BPA obligated Dispatchers at USFS Region 1 Host Dispatch Centers to use the price listings on these DPLs established by the USFS Contracting Officer in ranked order, lowest prices first, when placing Resource Orders for the hire of a specific flame retardant vinyl Tent or Tents. Appendix, Tab 6, at Just as this Court has previously noted, these I-BPAs obligated Defendant USFS to use the DPLs established by the USFS Contracting Officer if Defendant USFS placed under these I-BPAs Resource Orders for the hire of a specific flame retardant vinyl Tent or Tents. Crewzers Fire Crew Transport, Inc. v. United States, 98 Fed. Cl. 71, 75 (2011) ( if it [the USFS] chooses to use resources under the BPA, it must do so in accordance with the DPL ). This Tent I-BPA set out provisions for any Termination prior to its expiration date, April 11 th, 2014, in a clause incorporated by reference, the CONTRACT TERMS AND CONDITIONS COMMERCIAL ITEMS (JUN 2010) clause. Appendix, Tab 6, at Per the CONTRACT TERMS AND CONDITIONS COMMERCIAL ITEMS (JUN 2010) - 8 -

17 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 17 of 48 clause incorporated by reference, prior to its expiration date, an I-BPA might have been earlier terminated only under two circumstances: (1) for the Government s convenience under subparagraph (l), Termination for the Government s convenience, else (2) for cause under subparagraph (m), Termination for cause. Appendix, Tab 4, at This Court has held that a Termination for cause under subparagraph (m) of the CONTRACT TERMS AND CONDITIONS COMMERCIAL ITEMS (JUN 2010) clause is the same as the better-known Termination for Default and has the same burdens of proof which are placed by extant Case law on Termination Claims asserted by Contracting Officers. Universal Shelters of America, Inc. v. United States, 87 Fed. Cl. 127, (2009). Unilateral terminations of Contracts for cause may be based only on a material, non-trivial breach. Stone Forest Industries, Inc. v. United States, 973 F.2d 1548, (Fed. Cir. 1992)

18 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 18 of 48 Defendant USFS now asservates, wrongly, that its own USFS Contracting Officer s use of subparagraph (m) of the CONTRACT TERMS AND CONDITIONS COM- MERCIAL ITEMS (JUN 2010) clause to terminate Crewzers I-BPA well before its expiration date on April 11 th, 2014, her decision to terminate early Defendant USFS s obligation to use the DPLs listing Crewzers flame retardant vinyl Tents if Defendant USFS placed Resource Orders under the I-BPAs, was arguably mistaken, and that the express terms of subparagraph (m) of the CONTRACT TERMS AND CONDI- TIONS COMMERCIAL ITEMS (JUN 2010) clause, terms which apply only to early terminations of Contracts for cause, were of no force or effect in this Civil Action. Defendant s Motion to Dismiss, at 9; ECF Document Number 18, at page 15 of 21. If Defendant s agent, the USFS Contracting Officer, acted without proper authority, then Defendant USFS should have long ago corrected her unauthorized actions by withdrawing her early termination of Crewzers I-BPA and her early termination, this purportedly for cause, of Defendant USFS s obligation to use the

19 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 19 of 48 DPLs listing Crewzers flame retardant vinyl Tents if Defendant USFS chose to place Resource Orders under the Tent I-BPA. Put another way, if the USFS Region 1 Contracting Officer acted without authority in effecting the early termination of Plaintiff Crewzers Tent I-BPA, then Plaintiff Crewzers Tent I-BPA still exists and remains in full force and effect. BearingPoint, Inc. v. United States, 77 Fed. Cl. 189, 195 (2007). But here it was Defendant USFS, and not its Contracting Officer, which incorporated by reference the CONTRACT TERMS AND CONDITIONS COMMERCIAL ITEMS (JUN 2010) clause in the Tent I-BPA. When the USFS Contracting Officer invoked this clause incorporated in the Tent I-BPA by her principal, Defendant USFS, she acted within the proper scope of her actual authority. Harbert/Lummus Agrifuels Projects v. United States, 142 F.3d 1429, 1432 (Fed. Cir. 1998) (the burden is on the Contractor to establish the Contracting Officer s actual authority)

20 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 20 of 48 It is upon this premise that Plaintiff Crewzers has now put before the Court the issue whether extant Case law supports this early Termination, purportedly for cause, of Crewzers Tent I-BPA, and of Defendant USFS s continuing obligation to use the DPLs listing Crewzers flame retardant vinyl Tents if this early Termination is unauthorized or improper. Subparagraph (d), Disputes, of the incorporated CONTRACT TERMS AND CON- DITIONS COMMERCIAL ITEMS (JUN 2010) clause subjects the Tent I-BPA to the Contract Disputes provisions, 41 U.S.C , and provides that absent agreement, controversies arising under the Tent I-BPA are to be resolved in accordance with the DISPUTES (JUL 2002) clause. Appendix, Tab 4, at The DISPUTES (JUL 2002) clause defines just which controversies, Claims, are subject to the Contract Disputes provisions. Subparagraph (c), Claim, of the DISPUTES (JUL 2002) clause, a clause incorporated by reference in the Tent I-BPA, explains in a Definition that controversies subject to the Contract Disputes provisions encom

21 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 21 of 48 pass both monetary and nonmonetary controversies. A Claim subject to these Contract Disputes provisions is: a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this contract. Appendix, Tab 5, at (Emphasis added); Todd Construction, L.P. v. United States, 656 F.3d 1306, (Fed. Cir. 2011) (a Claim under the Contract Disputes provisions encompasses requests for declaratory relief). On November 8 th, 2011, long after the wildland fire season in USFS Region 1 was over, the USFS Contracting Officer prepared a letter to Crewzers wherein she announced: After careful review of performance documentation for these incidents the Northern Rockies has determined that the agreement AG-0343-B is not in the Governments [sic] best interest, and is hereby terminated.... The USFS Con

22 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 22 of 48 tracting Officer then terminated the Tent I-BPA for the convenience of the USFS. Appendix, Tab 11, at through This Decision was transmitted only by the United States Mails, not electronically. Appendix, Tab 15, at through The USFS Contracting Officer did not ask Crewzers whether or not Crewzers had received this letter; Crewzers did not learn of this Decision until December 13 th, But the USFS Contracting Officer was done with Crewzers, just as the USFS Contracting Officer had said in a telephone conversation with Crewzers on September 5 th, Amended Complaint, 25., ECF Document Number 7, pages 24 through 25 of 49, filed February 3 rd, While Crewzers did not learn of USFS Contracting Officer s Decision of November 8 th, 2011 terminating the USFS Region 1 Tent I-BPA for the convenience of USFS Region 1 until December 13 th, 2011, Amended Complaint, 43., ECF Document Number 7, page 38 of 49, filed February 3 rd, 2012, Crewzers did on November 10 th, 2011 receive an automated electronic notice that the USFS Region 1 Tent BPA has

23 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 23 of 48 been terminated in accordance with the Government s right to terminate for convenience.... Appendix, Tab 12, at An hour later, Crewzers Tents were removed from the DPLs. Without listings on these Tent DPLs, Crewzers then could no longer compete under the Ordering Protocol, and Crewzers was shut out of the Tent business at USFS Region 1 through April 11 th, Appendix, Tab 13, at through Crewzers challenged on November 22 nd, 2011 the termination for convenience by submitting a Contract Disputes Claim seeking reinstatement and the appointment of a new USFS Contracting Officer. Appendix, Tab 14, at through USFS Region 1 has continuing requirements for the hire of flame retardant vinyl Tents as evidenced by the DPLs for these Resources, DPLs which remain in full force and effect. Appendix, Tab 13, at through The I-BPA does not allow Defendant USFS the right to terminate for its purported convenience while other private-party lessors of flame retardant vinyl tents continue to receive Resource Orders

24 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 24 of 48 under other I-BPAs awarded by the USFS Contracting Officer. Declaration of Pilgrim Guinn, at 5, December 4 th, On December 7 th, 2011 the USFS Contracting Officer prepared a Contract Disputes Final Decision, this in response to Crewzers Contract Disputes Claim of November 22 nd, In this Contract Disputes Final Decision the USFS Contracting Officer revoke[s] the termination for convenience issued November 10, 2011 and replace[s] this termination with a termination for cause for the reasons stated in my letter of November 8, Appendix, Tab 16, at The Contract Disputes provisions, at 41 U.S.C. 7102(a), expressly limit the types of Contracts covered by these provisions to Contracts for the procurement of property other than real property in being, i.e., personal property, both tangible and intangible, 41 U.S.C. 7102(a)(1); to Contracts for the procurement of services, 41 U.S.C. 7102(a)(2); and to Contracts for the construction, alteration, repair or maintenance of real property, 41 U.S.C. 7102(a)(3). Contracts not falling in

25 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 25 of 48 these three categories are not covered by the Contract Disputes provisions. Joyce Terry, d/b/a Shirt Shack v. United States, 98 Fed. Cl. 736, 737 (2011). There is no dispute here that Crewzers I-BPA, whether or not it was a Contract, sought the procurement of services covered by the Contract Disputes provisions, 41 U.S.C. 7102(a)(2), and that Crewzers I-BPA was set out in a writing, i.e., was an express, not an implied, instrument. This is a nonmonetary dispute of the sort over which this Court has jurisdiction, 28 U.S.C. 1491(a)(2), 41 U.S.C. 7104(b)(1), and the USFS Region 1 Contracting Officer has here issued her Final Decision as is required by 41 U.S.C. 7103(a)(3), this the predicate for subject matter jurisdiction. The Contract Disputes provisions do not explain just what a Contract is, even though they make it clear that unless an instrument is within the three types of Contracts set out in 41 U.S.C. 7102(a), it is not subject to this Court s 28 U.S.C

26 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 26 of (a)(2) jurisdiction, a limited jurisdiction, but one for which broad remedies are available. These broad remedies include declaratory relief: any claim by or against, or dispute with, a contractor arising under section 7104(b)(1) of title 41, including a dispute concerning termination of a contract, rights in tangible or intangible property compliance with cost accounting standards, and other nonmonetary disputes on which a decision of the contracting officer has been issued under section 5 of that Act [41 U.S.C. 7103(a)]. 28 U.S.C. 1491(a)(2) (Emphasis added); Halim v. United States, Fed. Cl. No C, September 24 th, 2012, 2012 U.S. Claims LEXIS 1147, *23 (the Court has statutory authorization to award equitable relief under the Contract Disputes provisions). But the Federal Acquisition Regulation itself provides just what a Contract is within the three enumerated types of Contracts set out in the Contract Disputes provisions, and here is that Definition there set out: Contract means a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer

27 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 27 of 48 to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds and that, except as otherwise authorized, are in writing. In additional to bilateral instruments, contracts include (but are not limited to) awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance.... Federal Acquisition Regulation 2.101, Contract, 48 C.F.R ( Edition); Appendix, Tab 1, at through (Emphasis added). ARGUMENT I. THE I-BPA, THE DPLS, AND THE RESOURCE ORDERS BASED ON THOSE DPLS CONSTITUTE SETS OF PROMISES, A CONTRACT, FOR THE BREACH OF WHICH THE CONTRACT DISPUTES PROVISIONS GIVE A REMEDY. A set of promises, whether or not simultaneous, which are related in subject matter and performance, constitute a Contract. This is RESTATEMENT OF THE LAW, SECOND, CONTRACTS, 1 Contract Defined:

28 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 28 of 48 A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. Comment c., Set of promises, explains: A contract may consist of a single promise by one person to another, or of mutual promises by two persons to one another; or there may be, indeed, any number of persons or any number of promises. One person may make several promises to one person or to several persons, or several persons may join in making promises to one or more persons. To constitute a set, promises need not be made simultaneously; it is enough that several promises are regarded by the parties as constituting a single contract, or are so related in subject matter and performance that they may be considered and enforced together by a court. (Emphasis added). Affirming the judgment of the United States Court of Appeals for the Federal Circuit in Thompson v. Cherokee Nation, 334 F.3d 1075 (Fed. Cir. 2003), the Supreme Court of the United States of America has held, in Cherokee Nation v. Leavitt, 543 U.S. 631, 639 (2005), that Federal Contracts promising reimbursement of the indirect costs of tribal Contract support must be read together with a Statute which provided

29 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 29 of 48 an unrestricted lump-sum appropriation, this as a set of promises, just as provided by RESTATEMENT OF THE LAW, SECOND, CONTRACTS, 1. When there are sets of promises which together may be considered and enforced, it does not matter that one, or both, sets of promises is conditional. This is best seen in other Federal decisions holding enforceable at-will employment Contracts. An atwill employer, who by definition does not offer a fixed duration of employment, can be held responsible to pay for work done prior to termination. See, e.g., Walker v. Abbot Laboratories, 340 F.3d 471, 476 (7 th Cir. 2003); Lauture v. International Business Machines Corp., 216 F.3d 258, 261 (2 nd Cir. 2000) (promise to perform work as consideration for promise to pay was a Contract even though the work was of no certain duration); Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1019 (4 th Cir. 1999) (while there can be no action for breach of a conditional promise, a set of promises is nonetheless an enforceable Contract if performance of the broken set of promises was not excused by the condition)

30 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 30 of 48 The I-BPA awarded to Crewzers does not lack the status of an enforceable Contract because Defendant USFS s use of the DPLs established by the USFS Region 1 Contracting Officer for the hire of specific flame retardant vinyl Tents was only a conditional promise, i.e., under the I-BPA Defendant USFS could have chosen to use its own flame retardant vinyl Tents, or flame retardant vinyl Tents offered for hire by a local Government entity, instead of using the DPLs established by the USFS Contracting Officer for the hire from private-party lessors of flame retardant vinyl Tents, and then placing a Resource Order based on those DPLs. Likewise it does not matter that private-party lessors of flame retardant vinyl Tents could decline to accept a Resource Order. What matters is: (1) that Defendant USFS must have used the DPLs established by the USFS Contracting Officer if Defendant USFS hired flame retardant vinyl Tents from private-party lessors; and (2) that Crewzers, a private-party lessor of flame retardant vinyl Tents, must have complied with the performance and other requirements of the I-BPA for each Resource

31 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 31 of 48 Order it had accepted. Just this latter point (purported noncompliance with the I- BPA) is the premise of the USFS Region 1 Contracting Officer s Final Decision. These two sets of promises are related in subject matter and performance, RE- STATEMENT OF THE LAW, SECOND, CONTRACTS, 1, comment c., and together they constitute a Contract for the breach of which the Contract Disputes provisions give a remedy. An agreement between two parties, even one cobbled together from sets of conditional promises, if together the sets of promises provide a bargained-for exchange, is a Tucker Act Contract. VanDesande v. United States, 673 F.3d 1342, 1351 (2012) (Stipulation Agreement and Equal Employment Opportunity Commission Final Order construed together). Parties do not have the power to alter this Court s Tucker Act jurisdiction; 28 U.S.C. 1491(a)(2) jurisdiction which arises from the Contract Disputes provisions, 41 U.S.C. 7102(a)(2), 7104(b)(1); jurisdiction which may not be disregarded, either by Defendant USFS or by Plaintiff Crewzers:

32 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 32 of 48 Indeed, to hold otherwise is inconsistent with the well-established rule that neither a court nor the parties has the power to alter a federal court's statutory grant of subject matter jurisdiction. Id., 673 F.3d, at Defendant USFS obligated itself, in the I-BPA, to use the DPLs established by the USFS Contracting Officer if Defendant USFS placed Resource Orders for the hire of specific flame retardant vinyl Tents. Crewzers obligated itself, in the I-BPA, if it elected to accept a Resource Order, to do so at a price, and on the terms, set out in the I- BPA. Each of these promises was conditional, but together these two sets of conditional promises constituted a Contract, just as the term is explained in Federal Acquisition Regulation 2.101, Contract, 48 C.F.R ( Edition). Appendix, Tab 1, at through Defendant USFS relies on an Opinion issued by the Civilian Agency Board of Contract Appeals, Tenderfoot Equipment Services v. Department of Agriculture, CBCA No. 1865, July 29 th, 2010, 2010 CIVBCA LEXIS 180, to support its argument

33 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 33 of 48 that the I-BPA and the DPLs issued with the I-BPA do not together constitute a Contract within the purview of the Contract Disputes provisions, 41 U.S.C. 7102(a)(2), 7104(b)(1). Defendant s Motion to Dismiss, at 10-11; ECF Document Number 18, at pages 16 through 17 of 21. The problem with the Civilian Agency Board of Contract Appeals conclusion these I-BPAs issued by Defendant USFS were not Contracts subject to the Contract Disputes provisions is that Tenderfoot Equipment relied on the ipse dixit of Federal Acquisition Regulation (a), 48 C.F.R ( Edition) ( A basic ordering agreement is not a contract ) to make this conclusion, Appendix, Tab 3, at , and Defendant USFS s I-BPAs are Blanket Purchase Agreements, not Basic Ordering Agreements. Tenderfoot Equipment, 2010 CIVBCA LEXIS 180, at *9. Basic Ordering Agreements and Basic Agreements are both covered in Federal Acquisition Regulation Subpart 16.7, Agreements, 48 C.F.R. Subpart 16.7 Agreements ( Edition) and in Federal Acquisition Regulation , 48 C.F.R

34 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 34 of ( Edition). But as explained in Federal Acquisition Regulation , 48 C.F.R ( Edition), Blanket Purchase Agreements themselves, a different sort of instrument, are separately covered in Federal Acquisition Regulation , 48 C.F.R ( Edition). Appendix, Tab 3, at A Blanket Purchase Agreement is not the same as a Basic Ordering Agreement or a Basic Agreement, and the legal import of these types of instruments as it is set out in the Federal Acquisition Regulation is very different. Federal Acquisition Regulation Subpart 13.3, Simplified Acquisition Methods, 48 C.F.R. Subpart 13.3 Simplified Acquisition Methods ( Edition) separately covers, at Federal Acquisition Regulation , Blanket purchase agreements (BPAs), 48 C.F.R ( Edition), BPAs, and this separate coverage of BPAs is limited only to BPAs and includes neither Basic Ordering Agreements nor Basic Agreements. Appendix, Tab 2, at through The Federal Acquisition Regulation does not deny that a BPA is a Contract, as it expressly does for Basic

35 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 35 of 48 Ordering Agreements. Instead, the Federal Acquisition Regulation provides only the following mandatory term and condition for BPAs: (2) Extent of obligation. A statement that the Government is obligated only to the extent of authorized purchases actually made under the BPA. Federal Acquisition Regulation (a)(2), 48 C.F.R (a)(2) ( Edition); Appendix, Tab 2, at Denying an instrument is a Contract is one thing, but limiting the extent of the Obligation imposed by an instrument is another read another way, the Federal Acquisition Regulation does not deny a BPA is a Contract, and, instead, there is only a limitation placed by the Federal Acquisition Regulation on a BPA, this that a BPA is a conditional promise upon a breach of a BPA, a Contractor s money damages are limited to the authorized purchases actually made, this the extent of the Agency s obligation upon the Contractor s performance under the conditional promise made in the BPA (and also the extent of the appropriated funds obligated by the Agency

36 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 36 of 48 based upon the authorized purchases actually made under the BPA). This limitation, without more, is an insufficient basis to deny Crewzers a remedy under the Contract Disputes provisions for a breach of Defendant USFS s continuing obligation, should it chose to hire specific flame retardant vinyl Tents from private-party lessors, to place Resource Orders under the DPLs listing specific flame retardant vinyl Tents assigned by Crewzers to different USFS Region 1 Host Dispatch Centers. There is a difference between Contracts and Obligations. Just because an instrument (like Defendant USFS s I-BPA) may not alone become the basis for a money judgment does not mean it is not at the same time a Contract for purposes of the Contract Disputes provisions. When related sets of promises create enforceable obligations, RESTATEMENT OF THE LAW, SECOND, CONTRACTS, 344 Purposes of Remedies, a Court may protect these interests through Judgments awarding money damages, and/or enjoining non-performance of such an obligation, and/or declaring the rights of the parties, RESTATEMENT OF THE LAW, SECOND, CONTRACTS, 345 Judicial

37 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 37 of 48 Remedies Available. An express limitation on a legal remedy (money damages) is not also an express limitation on equitable remedies. The error of the Civilian Board of Contract Appeals in confusing Defendant USFS s I-BPA (a conditional promise per the Federal Acquisition Regulation) with a Basic Ordering Agreement (expressly not a Contract, and this likewise under the Federal Acquisition Regulation) is not unique. It is wrong, as this Court held in Zhengxing v. United States, 71 Fed. Cl. 732, 738 n.20 (2006), aff d, 204 F. App x 885 (Fed. Cir. 2006) and earlier held in Modern Systems Technology Corp. v. United States, 24 Cl. Ct. 360, (1991), opinion adopted, 979 F.2d 200, 203 (Fed. Cir. 1992) to analogize the legal import of BPAs to the legal import of Basic Ordering Agreements, and then to deny Contract status to BPAs under the Contract Disputes provisions when the Federal Acquisition Regulation itself makes no such analogy and itself does not deny Contract status to a BPA

38 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 38 of 48 Contrary to the holding in ICP Northwest, LLC v. United States, 98 Fed. Cl. 29, 40 (2011) ( no contract is formed until the holder of the BPA accepts the order ), Crewzers I-BPA and the DPLs established by the USFS Contracting Officer against that I- BPA are two sets of promises related in subject matter and performance, VanDesande, 673 F.3d, at , and even though each of these two sets of promises is conditional, together they constitute a Tucker Act Contract cognizable under the Contract Disputes provisions. This Court has previously found instruments to be enforceable Contracts when they arise from sets of promises which are related in subject matter and performance. In Western Pioneer, Inc. v. United States, 8 Cl. Ct. 291 (1985), it was a Basic Ordering Agreement which, although subject to Federal Acquisition Regulation (a) disavowing the status of an enforceable Contract for a Basic Ordering Agreement, Appendix, Tab 3, at , was performed under circumstances which imposed sufficient contractual overtones to qualify as a contract.... Id., at

39 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 39 of 48 This related set of promises found by the Western Pioneer Court sufficient to qualify a Basic Ordering Agreement as a Contract, notwithstanding the ipse dixit of Federal Acquisition Regulation (a), did not differ from the DPLs here for the hire from private-party lessors of specific flame retardant vinyl Tents under this I- BPA, itself a Blanket Purchase Agreement and not a Basic Ordering Agreement. In Almar Industries, Inc. v. United States, 16 Cl. Ct. 243 (1989), it was a Basic Agreement, not a Basic Ordering Agreement, which was at issue. The Almar Industries Court discussed Armed Services Board of Contract Appeals decisions concerning the enforceability of Basic Agreements, noting that Agency Board had upheld enforceability based on related sets of promises in those instruments, Id., at , and then the Court turned to an analysis of Western Pioneer. Doing so, the Almar Industries Court concluded that related sets of promises could create enforceable obligations, could create Contracts, notwithstanding the Federal Acquisition Regulation or express disavowals of Contract status in the instruments themselves:

40 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 40 of 48 These precedents clearly indicate that facts and circumstances independent of a basic agreement itself, [sic] may form an enforceable contract or transform the basic agreement into a binding obligation. The court finds, however, that such circumstances are wanting in this case.... Id., at 247. Ridge Runner Forestry v. Veneman, 287 F.3d 1058 (Fed. Cir. 2002), is here inapposite. Ridge Runner was a Civil Action premised on a Contractor Claim for $180,000 in money damages, 41 U.S.C. 7103(a)(1),(2), Ridge Runner, 287 F.3d, at 1060, yet this is a Civil Action premised on Defendant USFS s Claim, 41 U.S.C. 7103(a)(3), a Claim so as to eliminate early during the term of the I-BPA Defendant USFS s obligation to use the DPLs established by the USFS Contracting Officer to place Resource Orders for the hire of the specific flame retardant vinyl Tents offered by Plaintiff Crewzers, Malone v. United States, 849 F.2d 1441, 1443 (Fed. Cir. 1988) ( a government decision to terminate a contract for default is a government claim )

41 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 41 of 48 In Ridge Runner there were no Resource Orders issued to that Contractor, and that Contractor s Claim was instead that Defendant USFS had wrongfully deprived the Contractor of work, placing Resource Orders with others which should have been placed with Ridge Runner. Ridge Runner Forestry, AGBCA No , February 13 th, 2001, 2001 AGBCA LEXIS 6, *7-*8. In this Civil Action, Defendant USFS issued Resource Orders to Crewzers, and here Plaintiff Crewzers seeks a nonmonetary remedy, seeks reinstatement to the DPLs during the two years remaining of the threeyear term of the I-BPA. Plaintiff s Amended Complaint, Prayer for Relief at (f); ECF Document Number 7, at page 47 of 49, filed February 3 rd, In Ridge Runner there was neither a Basic Ordering Agreement, nor a Basic Agreement, nor a Blanket Purchase Agreement. Instead there was a one-page Pacific Northwest Interagency Engine Tender Agreement for the hire, if ordered, of three fire engines to be used on wildfires in Oregon and Washington during calendar year Ridge Runner Forestry, AGBCA No , 2001 AGBCA LEXIS 6, at *

42 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 42 of 48 This I-BPA awarded to Crewzers is itself a sixty-one page document, which, among other things, incorporates numerous Contract Clauses by reference; sets out detailed performance requirements; includes a nationwide minimum wage schedule; and, finally, includes detailed guides for rating performance. II. This Court Possesses Jurisdiction To Order Plaintiff Crewzers Reinstatement To The DPLs Together With Jurisdiction To Order Reinstatement Of Plaintiff Crewzers I-BPA. Defendant USFS argues that Plaintiff Crewzers Complaint must be dismissed because Plaintiff Crewzers asserted defenses to the Government Claim here in issue, 41 U.S.C. 7103(a)(3), have not been presented, or certified if required, to the USFS Contracting Officer, 41 U.S.C. 7103(a)(1), (b)(1), citing M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, (Fed. Cir. 2010). Defendant s Motion to Dismiss, at 12; ECF Document Number 18, at page18, filed November 7 th,

43 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 43 of 48 Maropakis arose from a Contractor letter promising a forthcoming written Claim for time extensions followed by a Contracting Officer Claim for liquidated damages. Id., at The Maropakis Contractor then filed its Civil Action with the United States Court of Federal Claims and there sought to excuse its noncompliance with the 41 U.S.C. 7103(a)(1), (b)(1) Contractor Claim requirements on the premise that even if it was not in technical compliance with the Contract Disputes provisions, the Government had actual knowledge of the Contractor s requested time extensions. Id., at But this actual knowledge, held the Maropakis Court, did not excuse compliance with the explicit CDA claim requirements. Id., at Turning to the Government s liquidated damages Claim, 41 U.S.C. 7103(a)(3), the Maropakis Court held that the Contractor s failure to comply with the Claim submission requirements imposed by the Contract Disputes provisions on the Contractor s requested time extensions were not excused by the Contractor s abili

44 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 44 of 48 ty to separately defend itself against the Government s liquidated damages Claim. Id., at While Maropakis does not limn the dimensions of a Contractor s ability, under the Contract Disputes provisions, to defend itself against a Government Claim asserted under 41 U.S.C. 7103(a)(3), it cannot be Contractors are defenseless and that they can assert nothing in response to a Government Claim absent first submitting even nonmonetary defenses as Claims to the same Contracting Officer who earlier asserted a Government Claim against that Contractor. To quote the Maropakis dissent: The right to defend against an adverse claim is not a matter of jurisdiction, nor of grace; it is a matter of right. The denial of that right, argued by the government on a theory of jurisdiction that was supported by the Court of Federal Claims and is now supported by this court, is contrary to the CDA, contrary to precedent, and an affront to the principles upon which these courts were founded. Id., at Dissenting opinion, by Newman, J

45 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 45 of 48 Defendant USFS s dance around the Pleadings here and its reliance on Maropakis to argue for a Dismissal instead of a Judgment on the merits both ignore the fundamental premise of this Civil Action, viz., that these are de novo proceedings. 41 U.S.C. 7104(b)(4), and that the USFS Contracting Officer s Final Decision may not be relied upon nor may it be presumed to be correct. When this Civil Action was filed, this Court succeeded to the authority given to the USFS Contracting Officer, and this Civil Action encompasses the same authority over monetary and nonmonetary controversies which the USFS Contracting Officer had under subparagraph (c), Claim, of the DISPUTES (JUL 2002) clause. Surely, the Court s authority in this Civil Action proceeding under the Contract Disputes provisions includes the power to impose equitable remedies, including the power to reinstate Crewzers to the DPLs and the power to reinstate Crewzers I-BPA. The USFS Region 1 Contracting Officer could have properly reinstated Crewzers to the DPLs. Now this Court, not the USFS Contracting Officer, has this

46 Case 1:12-cv SGB Document 19-1 Filed 12/07/12 Page 46 of 48 authority, and the Court must exercise this authority de novo, and may not limit its exercise of this authority to a mere review of the USFS Contracting Officer s Final Decision. England v. The Sherman R. Smoot Corp., 388 F.3d 844, 854 (Fed. Cir. 2004) ( [d]e novo review precludes reliance upon the presumed correctness of the [contracting officer s] decision ). The Maropakis majority has ignored the binding precedent of Bath Iron Works Corp. v. United States, 20 F.3d 1567 (Fed. Cir. 1994). Circuit Judge Newman may well have had in mind this holding in Bath Iron Works: the CFC [Court of Federal Claims] suit is not a review, but an original action, and the CFC does not affirm or reverse the CO, but simply decides entitlement vel non to the adjustment. It is acting as a trial court of first instance, not an appellate court. Assurance Co. v. United States, 813 F.2d 1202, 1206 (Fed. Cir. 1987) (Under the CDA [Contract Disputes Act], where an appeal is taken to a board or court, the contracting officer's award is not to be treated as if it were the unappealed determination of a lower tribunal which is owed special deference or acceptance on appeal