DENIED: January 7, 2022

DENIED: January 7, 2022

CBCA 6358, 6567

GRIZ ONE FIREFIGHTING, LLC,

Appellant,

v.

DEPARTMENT OF AGRICULTURE,

Respondent.

Scott A. Everard, Missoula, MT, counsel for Appellant.

Jody M. Miller and Jennifer T. Newbold, Office of the General Counsel, Department

of Agriculture, Missoula, MT, counsel for Respondent.

Before Board Judges RUSSELL, GOODMAN, and DRUMMOND.

DRUMMOND, Board Judge.

These consolidated appeals arise under an incident blanket purchase agreement

(I-BPA) between the Department of Agriculture, Forest Service (Forest Service or

Government) and Griz One Firefighting, LLC (Griz One or appellant) and resource orders

issued pursuant to the I-BPA for the rental of equipment and operators for fire suppression.

In CBCA 6358, Griz One claims damages to a fire engine (engine or vehicle) and for the

subsequent suspension of three engines and operators from the Tongue River Complex Fire.

In CBCA 6567, Griz One claims damages for the alleged wrongful demobilization of its

engines and operators from the Lolo Peak Fire. The parties submitted these consolidated

appeals on the written record under Board Rule 19 (48 CFR 6101.19 (2020)).

CBCA 6358, 6567

2

Judicial Notice

As part of the record submission brief, Griz One

moves that the record and evidence . . . include those items designated in Rule

9(a) as “Evidence” – e.g., the Rule 4 files, other documents or parts thereof

that may be admitted, and “Other Material” – e.g., the Notice of Appeal,

Complaint, Answer, Briefs . . . anything the Board may expressly admit or take

notice of . . . etc.

Appellant’s Record Submission Brief at 3. Griz One further moves that the Board take

judicial notice of hundreds of pages of documents. These documents are generally described

as the CBCA’s “own CBCA case files . . . Rules, Regulations, Government Publications,

Government Notices, Government Records, etc. that may be cited herein and including

website URL.” Id.

Board Rule 9 dictates what constitutes the record in a case and draws a distinction

between evidence and other material. Griz One seeks to deviate from the Board Rule in its

motion, which we deny.

The Board may take judicial notice consistent with the provisions of the Federal Rules

of Evidence (Fed. R. Evid.). Tucci & Sons, Inc. v. Department of Transportation, CBCA

4779, 17-1 BCA ¶ 36,599 (2016); Twelfth & L Streets LTD Partnership, GSBCA 7599, 88-1

BCA ¶ 20,519. Judicial notice is reserved for information “not subject to reasonable

dispute.” Fed. R. Evid. 201(b). When taking judicial notice pursuant to a request of a party,

the tribunal must be “supplied with the necessary information.” Id. 201(c)(2). The rules do

not explain what constitutes “necessary information.” Rather, the rules give the tribunal

discretion to decide whether judicial notice is appropriate. See K/S Himpp v. Hear-Wear

Technologies, LLC, 751 F.3d 1362, 1367 (Fed. Cir. 2014); Murakami v. United States, 398

F.3d 1342, 1355 (Fed. Cir. 2005). Griz One wishes the Board to take judicial notice of the

Forest Service’s position on various topics and information and then contrast such

information with the Government’s legal theories advanced in the present case. Griz One

has failed to persuade the Board it would be appropriate to take judicial notice of such

information. See Kvichak Marine Industries, Inc. v. United States, 118 Fed. Cl. 385, 388

(2014) (noting that plaintiff failed to establish that “articles it submitted [we]re properly the

subject of judicial notice [or] that they [we]re necessary for the court’s review of the case.”).

This information is not an “adjudicative fact” as set forth in Fed. R. Evid. 201(a), but rather

a legal conclusion recognizing alleged conflicts between the legal positions in this case. See

Big Easy Studios, LLC v. United States, 147 Fed. Cl. 539, 548 (2020) (finding contrast

between agency’s position in its training and Government’s legal theories presented in the

case not an adjudicative fact but rather a “legal conclusion recognizing alleged conflicts

CBCA 6358, 6567

3

between the legal positions in the case.”). Griz One’s request for the Board to take judicial

notice is denied.

Findings of Fact

The I-BPA

In 2016, the Forest Service awarded Griz One an I-BPA (the agreement) for the

possible future rental of engines and operators for fire suppression at the Forest Service’s

Northern Region. Pursuant to the terms of the I-BPA, the Forest Service and other named

state and federal entities could issue an unspecified number of orders to Griz One, and Griz

One, in response, would choose which, if any, of the orders, called dispatch or resource

orders, to accept. Respondent’s Appeal File (CBCA 6358), Exhibit 2 at 1-13, 16, 27.

Because of the sporadic occurrence of incident activities, the I-BPA did not guarantee the

placement of any orders. Id. at 16.

Once Griz One accepted an order, it was responsible for providing the needed

equipment and skilled and knowledgeable operators. Respondent’s Appeal File (CBCA

6358), Exhibit 2 at 40-41. The I-BPA stated further that the contractor would soon thereafter

receive, among other things, a resource order number, the name of the incident, the date and

time it needed to report to the incident, and an “[i]ncident contact phone number for further

information.” Id. at 44-45. According to the agreement, each wildland fire incident is

managed on an interagency basis and under the control and jurisdiction of the host agency.

Id. at 56.

The clause in the I-BPA titled “Loss, Damage, or Destruction” included the following

provision:

(b) For equipment furnished under this agreement WITH operator, the

Government shall not be liable for any loss, damage or destruction of such

equipment, except for loss, damage or destruction resulting from the

negligence, or wrongful act(s) of Government employee(s) while acting within

the scope of their employment. The operator is responsible for operating the

equipment within operating limits and responsible for safety of the equipment.

Respondent’s Appeal File (CBCA 6358), Exhibit 2 at 28 (clause C.8).

The “Payments” clause defined the entity responsible for compensating a contractor

for supplying equipment and operators. It indicated that:

CBCA 6358, 6567

4

(a) The host agency for each incident is responsible for payments. The

payment office will be designated in block 9 of the Emergency Equipment Use

Invoice, Form OF-286 . . . .

Respondent’s Appeal File (CBCA 6358), Exhibit 2 at 56 (clause D.21.8).

The “Work/Rest, Length of Assignments, and Crew Change Out” clause imposed

work/rest mitigation steps for assignments. Although this clause did not set a maximum

length for assignments, it gave the Government the option of releasing resources after

fourteen days. Respondent’s Appeal File (CBCA 6358), Exhibit 2 at 45-46 (clause D.6.7).

The agreement did not guarantee a maximum or minimum number of days for an assignment.

Id.

The I-BPA required the work to be performed “in a safe manner to a professional

standard.” Respondent’s Appeal File (CBCA 6358), Exhibit 2 at 53. Clauses D.19 and

D.19.1 addressed workmanship and incident behavior. Clause D.19 permitted the release of

any contractor employee from an incident assignment if deemed “incompetent, careless, or

otherwise objectionable including violation of Harassment Free Workplace Policy

(Exhibit C).” Id. The policy, incorporated within the I-BPA as Exhibit C, required all

employees and contractors to maintain a professional and harassment-free work environment.

The policy defined harassment as “coercive or repeated, unsolicited and unwelcome verbal

comments, gestures or physical comments.” Id. at 82. The I-BPA also stated that

“[m]isconduct may result in the suspension or cancellation of this agreement.” Id. at 53. The

agreement emphasized, in clause D.19.1, that “Harassment In Any Form Will Not Be

Tolerated.” Id.

The I-BPA established an invoicing process that a contractor was to follow to receive

payment. The invoicing clause provided, in part, that, “[a]fter each operation period worked,

time will be verified and approved by the Government Agent responsible for ordering and/or

directing use [of] the resource.” Respondent’s Appeal File (CBCA 6358), Exhibit 2 at 59

(clause D.21.9).

The I-BPA incorporated by reference Federal Acquisition Regulation (FAR) 52.212-4,

Contract Terms and Conditions – Commercial Items (JAN 2017). Respondent’s Appeal File

(CBCA 6358), Exhibit 2 at 25. The I-BPA did not incorporate by reference the

Requirements clause, FAR 52.261-21.

CBCA 6358, 6567

5

Tongue River Complex Fire (CBCA 6358)

Pursuant to the I-BPA, the Bureau of Land Management (BLM), as the host agency,

issued a dispatch order to Griz One on or about July 8, 2017, to provide engines and

operators at the Tongue River Complex Fire in Missoula, Montana. Appellant’s Complaint

at 6; Respondent’s Supplement to Motion to Dismiss (CBCA 6358), Exhibit 1 at 1;

Respondent’s Reply to Appellant’s Additional Argument Against Motion to Dismiss (CBCA

6358), Exhibit 2.

During the afternoon on July 10, 2017, while a Griz One employee was operating an

engine, the engine was damaged in a collision with a government vehicle driven by a Forest

Service employee and a vehicle driven by another private contractor. Respondent’s Appeal

File (CBCA 6358), Exhibit 12 at 272-78.

By letter dated July 14, 2017, the Forest Service contracting officer (CO) suspended

the I-BPA. It appears from the record that the suspension also acted as a suspension of

further work on the Tongue River Complex Fire that Griz One was performing under its

dispatch order. Respondent’s Record Submission Brief at 11. The suspension was to

continue until investigations into the accident and Griz One’s contacts with the Incident

Management Team and dispatch personnel were completed. In the suspension letter, the CO

advised Griz One that the suspension of the I-BPA could be lifted if Griz One agreed to

specific conditions concerning communications with government employees. Appellant’s

Appeal File (CBCA 6358), Exhibit 4 at 141.

Kevin Korbel, a safety officer, investigated the accident. He interviewed various crew

members working on site at the time of the accident and collected statements from

individuals with direct knowledge of the relevant facts. He also inspected Griz One’s

damaged engine. He reported that the two Griz One operators at the site at the time of the

accident lacked significant firefighting experience and were confused as to the necessary

safety procedures, despite numerous briefings from the Government and assistance from

other crew members. One operator had only “10 days” of prior firefighting experience, and

the other had “1 season 8 years [before] with about 10 days experience.” Respondent’s

Appeal File (CBCA 6358), Exhibit 12 at 273. He further reported that the weather report for

that day was vague. While high winds were predicted, the timing and severity of the wind

was uncertain. The report did not conclude that the crash was caused by government

negligence. Id. The report also did not find that the accident was caused by the

Government’s safety failures. In fact, the report found the safety tactics and practices used

by the Government on July 10, 2017, to be appropriate. Id.

On July 21, 2017, the CO lifted the suspension after receiving a written assurance

from Griz One that it would cease all unacceptable conduct and communicate only with the

CBCA 6358, 6567

6

CO. Griz One continued to work at the site through July 23, 2017. Appellant’s Record

Submission Brief at 11-12. The suspension lasted a total of seven days. Id. at 11.

Tongue River Complex Fire Claim (CBCA 6358)

In a letter to the Forest Service dated August 28, 2018, Griz One claimed damages

totaling $49,671.90 – that is $1716.90 for damage to the engine (supported by a preliminary

estimate and photos), $46,671.90 for the daily rates for three engines suspended for seven

days (supported by shift tickets), $1500 for diminution (supported by a declaration from a

Missoula auto dealer), and $150 for rental costs for loss of use during three days of repair

(supported by documentation of comparable rentals). Respondent’s Appeal File (CBCA

6358), Exhibit 9 at 191-92.

By decision dated October 19, 2018, the CO replied to Griz One’s claim. As to the

portion of the claim seeking compensation for vehicle damage, the CO stated, “Please be

advised that I do not have the jurisdictional authority to settle claims associated with this

incident; the Tongue River Complex was . . . under the jurisdiction of the [BLM] and thus

all claims associated with vehicle damage . . . must be submitted to the BLM.” Respondent’s

Appeal File (CBCA 6358), Exhibit 1 at 1. In regard to the portion of the claim related to

payment of daily rates during the suspension of the agreement, the CO stated that the

suspension was within the scope of the agreement due to “reported unprofessionalism

displayed to the incident management team and harassment of dispatch.” Id. at 2. The

agreement was reinstated upon Griz One’s agreement to specific conditions: no contact with

dispatch or the coordination center, contact only with the CO, and “any future aggressive or

angry outbursts would be immediate grounds for the termination of the agreement.” Id. The

CO denied Griz One’s claim for damages to its engine and its claim for suspension damages.

Id. This appeal (CBCA 6358) ensued, filed within ninety days of receipt of the CO’s final

decision.

Lolo Peak Fire (CBCA 6567)

On July 24, 2017, Griz One accepted a second dispatch order from the Missoula

Interagency Dispatch Center, Lolo National Forest, to provide equipment and personnel to

aid in fighting the Lolo Peak Fire. Respondent’s Appeal File (CBCA 6567), Exhibit 8. Griz

One’s personnel arrived at the incident site on July 25, 2017. Id., Exhibit 6.

After work commenced, the assistant fire management officer reported that Griz

One’s crew was observed not working on numerous occasions, sleeping on the fire line next

to an operating chipper when their assignment was supposed to be helping feed the chipper,

and lacking the appropriate number of personnel. Respondent’s Appeal File (CBCA 6567),

Exhibit 13 at 222; Respondent’s Proposed Finding of Fact at 5.

CBCA 6358, 6567

7

The Fuels Assistant Fire Management Officer also indicated that, after several shifts,

the operations group discussed their frustrations with Griz One’s performance, and it was

decided that Griz One was a drag on productivity and posed a safety risk due to the lack of

the employees’ institutional awareness. Respondent’s Appeal File (CBCA 6567) Exhibit 13

at 227; Respondent’s Proposed Finding of Fact at 5.

The Forest Service gave Griz One performance evaluations, rating one vehicle as

“satisfactory” while rating the other as “marginal.” Respondent’s Appeal File (CBCA 6567),

Exhibit 4. The Forest Service’s evaluating officer included the comment that Griz One’s

crew was unmotivated, demonstrated a lack of ability to perform, and failed to have adequate

equipment to perform assigned tasks. Id.

On August 1, 2017, the Lolo Peak Fire division commander demobilized Griz One’s

personnel and trucks from the site of the fire. Respondent’s Appeal File (CBCA 6567),

Exhibit 10. Appellant’s two Type-6 engines were demobilized from August 1 through

August 8, 2017. Respondent’s Rule 19 Record Submission at 6.

Lolo Peak Fire Claim (CBCA 6567)

On February 28, 2018, Griz One submitted a claim to the Forest Service CO seeking

to recover $20,767.50 for the alleged early demobilization of Griz One resources from the

Lolo Peak Fire, prior to August 7, 2017. Appellant’s Appeal File (CBCA 6567), Exhibit 22

at 283. In its claim, Griz One sets forth its damages as follows:

Griz One’s Eng[ine] #1 (Type 6) for 08-02-2017 to 08-07-2017 (6.0 days)

at $1595/day, plus demobilization procedure (e.g. inspection) and half-day

travel, totaling 6.5 days = $10,367.50.

Griz One’s Eng[ine] #2 (Type 6) for 08-02-2017 to 08-07-2017 (6.0 days)

at $1600/day, plus demobilization procedure (e.g. inspection) and half-day

travel totaling 6.5 days = $10,400.

Id. at 289.

By decision dated April 24, 2019, the CO denied the claim in its entirety.

Respondent’s Appeal File (CBCA 6567), Exhibit 3. This appeal (CBCA 6567) ensued, filed

within ninety days of receipt of the CO’s final decision.

CBCA 6358, 6567

8

Discussion

1.

Negligence Claim – Tongue River Complex Fire

Griz One contends that the Forest Service was negligent in directing the operation on

July 10, 2017, given the existing conditions. Specifically, Griz One asserts that the Forest

Service orchestrated a “back burn” that should not have taken place due to weather

conditions; there was a lack of instructions and communications; the Forest Service’s vehicle

lacked a back-up alarm; and the Forest Service employee backed into Griz One’s equipment

while attempting to vacate the area.

We lack jurisdiction to entertain pure claims of negligence, which sound in tort.

Dungaree Realty, Inc., HUD BCA 95-G-102-C1, 97-2 BCA ¶ 29,189. Nevertheless, the

Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109 (2018), allows us to entertain a claim

that arises primarily from a contractual undertaking even though the loss may have resulted

from the negligent manner in which the contract was performed.” Goodfellow Brothers, Inc.,

AGBCA 80-189-3, 81-1 BCA ¶ 14,917. The relevant dispatch order was issued by the BLM,

and it is unclear from the record how the accident at issue involving the Forest Service ties

to any contractual provisions that could convert a tortious act into a contractual breach. We

need not dwell on that issue, however, because the record does not support the premise that

damage to Griz One’s engine on July 10, 2017, was caused by negligence on the part of the

Forest Service. As the party seeking relief, appellant bears the burden of proving that the

Forest Service was negligent in directing operations and that this negligence caused the

accident. Evidence put forth by both parties suggests that the accident was caused by

multiple factors, many of which were out of the control of Forest Service personnel.

Furthermore, there are conflicting witness statements as to who may have been at fault for

the resulting accident. In short, the record does not establish by a preponderance of the

evidence that the accident was caused by government negligence or that any such negligence

breached a contractual duty owed by the Forest Service. Moreover, witness statements also

suggest that, while the high winds were forecasted, the time at which the winds would reach

the area was a matter of speculation amongst the parties. As such, the claim is denied.

2.

Contract Suspension Claim – Tongue River Complex Fire

Griz One argues that the Forest Service breached the agreement by suspending two

engines on site and causing the available third engine to become unavailable. Griz One

argues that the reason for the suspension was exclusively due to the pending conclusion of

a subsequent incident investigation at the complex. Griz One further claims that the removal

of Griz One resources from dispatch call lists resulted in Griz One sustaining damages while

their resources were not eligible for use. Griz One asserts that the Forest Service owes it the

CBCA 6358, 6567

9

daily rates for three engines for the suspension period. However, the record does not support

Griz One’s arguments.

To the extent that Griz One is complaining that the Forest Service breached the I-BPA

by precluding it from obtaining any new resource or dispatch orders, we lack jurisdiction to

entertain Griz One’s complaint. The I-BPA at issue here expressly provided that there was

no guarantee that the Government would ever place any orders under it, it provided no

minimum purchase guarantee, and Griz One was not obligated to accept any order that the

Government placed but was free to decline an order if it so chose. As we have previously

recognized, “such agreements do not constitute binding and enforceable contracts because

they create only ‘illusory promises’ without any mutuality of obligation.” Sylvan B. Orr v.

Department of Agriculture, CBCA 5299, 16-1 BCA ¶ 36,522 (quoting Ridge Runner

Forestry v. Veneman, 287 F.3d 1058 (Fed. Cir. 2002)); see Cardiometrix, DOT CAB 2571,

et al., 94-1 BCA ¶ 26,269 (1993) (“[A] blanket purchase agreement is not a contract.”).

“Because ‘BPAs themselves are not contracts,’ we lack jurisdiction under the [CDA] to

entertain claims arising out of them.” Sylvan B. Orr (quoting Zhengxing v. United States, 71

Fed. C1. 732, 738, aff’d, 204 F. App’x 885 (Fed. Cir. 2006)). Griz One cannot maintain a

claim under the I-BPA.

To the extent that Griz One is complaining about suspension of work under its Tongue

River Complex Fire dispatch order, we can consider Griz One’s claim. “Once an order under

a BPA is issued by the Government and accepted by the contractor, a contract comes into

being,” Sylvan B. Orr, and the contractor can maintain an action for a breach of that order.

Nevertheless, in the circumstances here, no breach by the Government occurred. Clause

D.19 of the I-BPA, the terms of which are necessarily incorporated into the dispatch order,

clearly gives the Forest Service CO discretion to remove or suspend, in writing, a contractor

employee that is found incompetent, careless, or otherwise objectionable, which includes

violations of the Forest Service’s Harassment Free Workplace Policy. This policy required

all contractor personnel to take personal responsibility for maintaining a professional,

harassment-free work environment. The record documents that, following the Tongue River

Complex Fire, the CO not only investigated the accident but also reports of Griz One’s

unprofessional communications with the incident management team and multiple contacts

with dispatch. Respondent’s Appeal File (CBCA 6358), Exhibits 3 at 138, 4 at 141. The

agreement was reinstated once Griz One agreed to specific conditions, including no contacts

with government employees except for the CO and acknowledgment that future aggressive

behavior towards government employees would lead to immediate termination of the

contract. Id., Exhibit 1 at 2. Accordingly, we do not find appellant’s argument persuasive.

CBCA 6358, 6567

3.

10

Government’s Breach of Good Faith and Fair Dealing – Tongue River Complex Fire

Griz One next argues that the Forest Service breached the implied covenant of good

faith and fair dealing in wrongfully suspending its contracts following the vehicle accident

at the Tongue River Complex. Specifically, Griz One asserts that the suspension of all Griz

One contracts pending the conclusion of an already completed accident report is a breach of

covenants, resulting in damages to the contractor. We do not find appellant’s argument

persuasive.

Implied in every contract is a duty of good faith and fair dealing in its performance

and enforcement. Lakeshore Engineering Services, Inc. v. United States, 748 F.3d 1341,

1349 (Fed. Cir. 2014); Metcalf Construction Co. v. United States, 742 F.3d 984, 990 (Fed.

Cir. 2014). “The covenant of good faith and fair dealing is an implied duty that each party

to [the] contract owes to its contracting partner. The covenant imposes obligations on both

contracting parties that include the duty not to interfere with the other party’s performance

and not to act so as to destroy the reasonable expectations of the other party regarding the

fruits of the contract.” In-Finn-Ity Geotech Service v. Department of the Interior, CBCA

975, 11-1 BCA ¶ 34,732 (citing Centex Corp. v. United States, 395 F.3d 1283, 1304 (Fed.

Cir. 2005)). A part of the duty of good faith and fair dealing is the requirement to “not only

. . . avoid actions that unreasonably cause delay or hindrance to contract performance, but

also to do whatever is necessary to enable the other party to perform.” First Kuwaiti Trading

& Contracting, W.L.L. v. Department of State, CBCA 3506, et al., 19-1 BCA ¶ 37,214 (2018)

(citing Kiewit-Turner v. Department of Veteran Affairs, CBCA 3450, 15-1 BCA ¶ 35,820

(2014)).

The record does not support appellant’s contention that the Government violated the

implied covenants of good faith and fair dealing. Rather, the suspension of Griz One’s

contracts was, in no small part, due to the conduct of the contractor. We find that appellant

has proved neither liability nor causation. By failing to provide proof of liability, damages

are not payable. Appellant’s claim is denied.

4.

Wrongful Demobilization – Lolo Peak Fire

Appellant argues that it is entitled to $20,767.50 resulting from the alleged wrongful

demobilization of its equipment and operators under its dispatch order for the Lolo Peak Fire.

Appellant’s two Type-6 engines were demobilized from August 1 through August 8, 2017.

Appellant argues that the Forest Service suspended its work because it lacked a

particular piece of equipment known as a “McCloud.” We find that this argument is not

persuasive. Numerous witness statements corroborate the suspension was caused due to poor

performance by appellant’s crew, including sleeping on the fire line next to an operating

CBCA 6358, 6567

11

chipper, lack of an appropriate number of personnel, and other safety concerns. The release

of crews who are “incompetent, careless, or otherwise objectionable” is within the remedies

allowed by the agreement.

Next, appellant argues that section D.6.7 of the agreement creates a fourteen-day

obligation on the part of the Forest Service when utilizing Griz One resources. Appellant

claims the Forest Service is liable for damages due to wrongful demobilization of its

personnel and equipment from the Lolo Peak Fire, prior to the conclusion of the fourteen-day

term.

The agreement does not support appellant’s argument. Appellant has not identified

any language in the agreement guaranteeing a fourteen-day work period. Rather, the

agreement unambiguously states that the fourteen-day work requirement is meant to be a

maximum amount of time that resources may be utilized under contract rest/work

requirements. It does not indicate a minimum term requirement for use of contractor

resources nor does it create an obligation on the part of the Government to retain contractor

resources for any longer than is necessary. Thus, a plain reading of the contract fails to

provide support for Griz One’s argument.

Alternatively, Griz One argues that the prior course of dealing between the parties

creates a fourteen-day obligation on the part of the Forest Service when utilizing Griz One’s

resources. Again, this claim is not supported by the record. The Board defines a prior course

of dealing as “‘a sequence of previous conduct between the parties to an agreement which

is fairly to be regarded as establishing a common basis of understanding for interpreting their

expressions and other conduct.’ The emphasis is on a sequence of events; a single

transaction cannot constitute a course of dealing.” CFP FBI-Knoxville, LLC v. General

Services Administration, CBCA 5210, 17-1 BCA ¶ 36,648 (citing IAP World Services, Inc.

v. Department of the Treasury, CBCA 2633, 12-2 BCA ¶ 35,119 (quoting DeLeon Industries,

LLC v. Department of Veterans Affairs, CBCA 986, 12-1 BCA ¶ 34,904)). In order to

recover under prior course of dealing, appellant must show reliance on the course of dealing

to its own detriment. CFP FBI-Knoxville; IAP World Services.

Here, appellant has failed to establish a sequence of previous conduct between the

parties that would otherwise establish a common understanding regarding the length of time

the Government must utilize Griz One resources. Invoices introduced by the Forest Service

indicate that there have been multiple occasions in which the Forest Service requested and

demobilized Griz One’s resources prior to the conclusion of a fourteen-day period. Contrary

to appellant’s argument, the record demonstrates that, more often than not, Griz One

resources are demobilized prior to the conclusion of a two-week term. As a result, the record

does not provide support for the claim that a prior course of dealing existed between the

CBCA 6358, 6567

12

parties. Without more from appellant, its claim of wrongful demobilization in CBCA 6567

is denied.

Decision

For the foregoing reasons, these appeals are DENIED.

Jerome M. Drummond

JEROME M. DRUMMOND

Board Judge

We concur:

Beverly M. Russell

BEVERLY M. RUSSELL

Board Judge

Allan H. Goodman

ALLAN H. GOODMAN

Board Judge