CBCA 7323

CBCA 7323 DISMISSED FOR LACK OF JURISDICTION: September 11, 2024 CBCA 7323, 7918 BEAR MOUNTIN CUTTERS, INC., Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent in CBCA 7323, and DEPARTMENT OF THE INTERIOR, Respondent in CBCA 7918. Joel Penoyar and Edward Penoyar of Penoyar Law Offices, South Bend, WA; and Michael W. Johns of Roberts Johns & Hemphill, PLLC, Gig Harbor, WA, counsel for Appellant. Richard A. Grisel, Office of the General Counsel, Department of Agriculture, Portland, OR, counsel for Respondent in CBCA 7323. Kara Borden, Office of the Solicitor, Department of the Interior, Portland, OR, counsel for Respondent in CBCA 7918. Before Board Judges BEARDSLEY (Chair), VERGILIO, and SHERIDAN. BEARDSLEY, Board Judge. CBCA 7323, 7918 2 The appellant, Bear Mountin Cutters (BMC), originally appealed the denial by the Department of Agriculture-Forest Service (USDA-Forest Service) of its claim for $451,782.33 for damage to its equipment at the Summit Trail Fire. The Board docketed the appeal as CBCA 7323. Subsequently, BMC submitted a claim to the Department of the Interior, Bureau of Indian Affairs (BIA) for $632,010 for the same equipment damage. BIA’s contracting officer denied the claim, and the Board docketed the appeal of that claim as CBCA 7918. The Board consolidated the appeals for the purpose of deciding which is the proper respondent and which appeal should go forward. BMC filed a motion for partial summary judgment, asking the Board to find that BIA, not the USDA-Forest Service, had a contract with BMC and that BIA is responsible to BMC for any government employee negligence under the contract. A motion for partial summary judgment, however, is not the correct vehicle to determine the proper respondent in these appeals. Instead, the Board finds that it lacks jurisdiction to decide the claim against the USDA-Forest Service because there is no contract between BMC and the USDA-Forest Service. The Board finds that it has jurisdiction to decide BMC’s claim against BIA in CBCA 7918 and that BIA is the proper respondent. Accordingly, we dismiss CBCA 7323 for lack of jurisdiction. Background On June 29, 2021, the USDA-Forest Service awarded BMC a Virtual Incident Procurement (VIPR) Incident Blanket Purchase Agreement (I-BPA) “to obtain Miscellaneous Heavy Equipment (Feller Buncher, Mulcher/Masticator, Road Grader, and Skidder) for use on a local, regional, and nationwide basis” in the protection of lands from fire and hazardous incidents. Exhibit 1 at 22.1 The I-BPA stated that, “[a]t time of dispatch, a resource[2] order number will be assigned.” Id. at 33. The resource order is a request for goods or services from pre-approved vendors like BMC. “After each operational period worked, time will be verified and approved by the Government Agent responsible for ordering and/or directing use [of] the resource.” Id. at 46. The I-BPA provided: Zone Supplement to D.1 – SCOPE OF AGREEMENT The Incident Commander or responsible Government Representative is authorized to administer the technical aspects of this agreement. To provide further clarification of this at-incident VIPR agreement administration role, the 1 All exhibits are found in the appeal file for CBCA 7323 unless otherwise noted. 2 Resource is defined in the I-BPA as “[e]quipment, personnel, supplies, or a service used to support incidents.” Exhibit 1 at 74. CBCA 7323, 7918 3 Contractor will be assigned an immediate Government representative that will administer the aspects of the agreement to include, 1) Verifying that the contractor performs the requirements of the contract in accordance with the contract terms, conditions and specifications 2) Maintain liaison and direct communications with the contractor during entire fire assignment 3) Monitor the contractor’s performance, notify the contractor of deficiencies observed during surveillance, and direct appropriate action to effect correction 4) Review and sign daily all Shift Tickets (OF-297) 5) Fill out, discuss with Contractor, and sign any necessary performance reviews . . . . Id. at 92.