CBCA 5863

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON MARCH 23, 2020 DENIED: March 9, 2020 CBCA 5863 FUTURE FOREST, LLC, Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. Alan I. Saltman, Jacob W. Scott, and Alexander Gorelik of Smith, Currie & Hancock LLP, Washington, DC, counsel for Appellant. Lori Polin Jones, Office of the General Counsel, Department of Agriculture, Washington, DC; and Andrew Moore, Office of the General Counsel, Department of Agriculture, Albuquerque, NM, counsel for Respondent. Before Board Judges VERGILIO, SHERIDAN, and ZISCHKAU. SHERIDAN, Board Judge. The White Mountain Stewardship contract (WMSC) was an indefinite delivery/indefinite quantity (ID/IQ) contract under which respondent, United States Department of Agriculture, Forest Service (Forest Service), agreed to pay appellant, Future Forest, LLC (Future Forest), to treat and remove small diameter trees and biomass in the Apache-Sitgreaves National Forest in Arizona. Previously, the Board ruled that the contract minimum was 5000 acres per year for a total of 50,000 acres over the ten-year term of the CBCA 5863 2 contract. Future Forest, LLC v. Department of Agriculture, CBCA 5764, 19-1 BCA ¶ 37,238 (2019).1 In this appeal, Future Forest posits that the comments of the Forest Service employees created a “reasonable expectation” that the agency would provide Future Forest with 150,000 acres, and that the Forest Service violated the implied duty of good faith and fair dealing when it failed to fulfill Future Forest’s “reasonable expectation.” Future Forest further alleges that actions of the Forest Service interfered with that duty when 150,000 acres were not released. The Forest Service moved for summary judgment and the Board ordered Future Forest to address only the threshold legal issue presented by the motion—whether the duty of good faith and fair dealing can be the basis for this claim for acreage amounts beyond the contract minimum in an ID/IQ contract. Future Forest does not survive summary judgment because the premise underlying its theory of relief is unsustainable. There could be no legal “reasonable expectation” to receive 150,000 acres under this ID/IQ contract, as this ID/IQ contract did not create such an expectation. What Future Forest and certain agency personnel may have anticipated or hoped for at the time of contract signing or during post-award discussions represents inadmissible parole evidence. The written language of the contract with the guaranteed minimum dictates the parameters of reasonable expectations. Future Forest attempts to transform the ID/IQ contract into something it is not, such as a definite quantity or requirements contract. Legally, the theory as presented fails such that summary judgment is appropriate and the appeal is denied. Background I. Contract Terms and Performance The Forest Service awarded the WMSC to Future Forest in August 2004. Despite the original pre-award project, in which the Forest Service anticipated releasing approximately 150,000 acres over the ten year contract, at regular intervals of 15,000 acres a year, the 1 By modification 1, the parties authorized the Forest Service to offer task orders that met the minimum guarantee, either in acres or green tons, whichever was reached first. A conversion factor was included in modification 1 to derive the equivalency, and the parties agreed that 53,550 green-tons of material was the equivalent of the 5000 acre minimum guaranteed in the original contract. CBCA 5863 3 competed and awarded contract expressly guaranteed a minimum of 5000 acres per year for a total of 50,000 acres over the ten-year term of the contract. Future Forest, 19-1 BCA at 181,270. The contract described the contract as an ID/IQ contract and stated the guaranteed amounts: B.1.0.