On remand, the trial court readily found that First Commerce's later conduct — its actual use of a 25-year amortization period — constituted an unambiguous acceptance of the Government's counteroffer, and the court granted summary judgment of liability in favor of First Commerce. First Commerce Corp. v. United States, 60 Fed. Cl. 570, 581-82 (2004). Anderson v. United States, 344 F.3d 1343 (Fed. Cir. 2003), is another case in which evidence that parties had not contracted for special goodwill treatment prompted us to examine carefully the specific documents involved in the transaction. Westport, the acquiring institution, submitted an application in which it requested a 40-year amortization period for goodwill.

David A. Levitt, Trial Attorney, with whom were Stuart E. Schiffer, Deputy Assistant Attorney General, David M. Cohen, Director, and Jeanne E. Davidson, Deputy Director, Department of Justice, Civil Division, Commercial Litigation Branch, Washington, D.C. for Defendant. Summary Judgment; Winstar line of cases; Voluntary Supervisory Conversion; D N Bank v. United States, 331 F.3d. 1374 (Fed. Cir. 2003); 1st Commerce v. United States, 335 F.3d 1373 (Fed. Cir. 2003); Anderson v. United States, 344 F.3d 1343 (Fed. Cir. 2003); "Ordinary Principles of Contract;" Money-Back Restitution; Material Breach LOREN SMITH, Senior Judge

To form an agreement binding upon the Government, four elements must be met: (1) mutuality of intent to contract; (2) consideration; (3) lack of ambiguity in offer and acceptance; and (4) a government representative having actual authority to bind the United States in contract. D N Bank v. United States, 331 F.3d 1374, 1378 (Fed. Cir. 2003); see Anderson v. United States, 344 F.3d 1343, 1353 (Fed. Cir. 2003); Total Med. Mgmt., Inc. v. United States, 104 F.3d 1314, 1319 (Fed. Cir. 1997). As Senior Judge Smith observed in Cal. Fed. Bank v. United States, 39 Fed. Cl. 753, 773 (1997) ("CalFed I"), aff'd, 245 F.3d 1342 (Fed. Cir. 2001), cert. denied, 534 U.S. 1113 (2002), "[c]ontracts are not technical documents requiring forms.

When contracting with the Federal Government, those elements of contract formation are: "(1) mutuality of intent to contract; (2) lack of ambiguity in offer and acceptance; (3) consideration; and (4) a government representative having actual authority to bind the United States in contract." Anderson v. United States, 344 F.3d 1343, 1353 (Fed. Cir. 2003); Total Medical Management, Inc. v. United States, 104 F.3d 1314 (Fed. Cir. 1997). Mutuality of Intent to Contract — Lack of Ambiguity in Offerand Acceptance

La Van v. United States, 382 F.3d 1340, 1346 (Fed. Cir. 2004) (" La Van III") (citing Cal. Fed. Bank v. United States, 245 F.3d 1342, 1346 (Fed. Cir. 2001) (quoting Massie v. United States, 116 F.3d 1184, 1188 (Fed. Cir. 1999)). See also Barron Bancshares, Inc. v. United States, 366 F.3d 1360, 1375 (Fed. Cir. 2004) ("[M]utual intent to contract is required to prove an enforceable agreement. . . . [T]here must be an offer, an acceptance, consideration, and governmental authority."); Anderson v. United States, 344 F.3d 1343, 1353 (Fed. Cir. 2003). The Federal Circuit recently revisited the application of contractual requisites in the Winstar context.

To satisfy its burden to prove mutual intent to contract, a plaintiff must proffer objective evidence demonstrating the existence of an offer and a reciprocal acceptance. Anderson v. United States, 344 F.3d 1343, 1353 (Fed. Cir. 2003) (citing Estate of Bogley v. United States, 514 F.2d 1027, 1032 (1975); Restatement (Second) of Contracts § 22(1) (1981)). (a.) Offer.

II As noted above, typically “[t]o have standing to sue the sovereign on a contract claim, a plaintiff must be in privity of contract with the United States,” Anderson v. United States , 344 F.3d 1343, 1351 (Fed. Cir. 2003), and “[s]tanding is a threshold jurisdictional issue that implicates Article III of the Constitution.” S. Cal. Fed. Sav. & Loan Ass'n , 422 F.3d at 1328.

In order to establish breach of contract by the federal government, a plaintiff must first establish a "binding agreement." Anderson v. United States, 344 F.3d 1343, 1353 (Fed. Cir. 2003). The four elements required to establish a binding agreement are: 1) mutuality of intent to contract; 2) lack of ambiguity in offer and acceptance; 3) consideration; and 4) that the government representative had actual authority to bind the United States. Id.; see also California Fed. Bank, FSB v. United States, 245 F.3d 1342, 1346 (Fed. Cir. 2001); First Commerce, 335 F.3d at 1379-80; D N Bank, 331 F.3d at 1378.

The Court found that a contract existed between Lincoln and the government with respect to Lincoln's merger with Great Plains Federal Savings and Loan Association of Falls City, Nebraska ("Great Plains"), id. at 369, but that no contracts existed with respect to Lincoln's other two mergers, id. at 370. Defendant now seeks reconsideration of the Court's ruling on the Great Plains transaction. Specifically, defendant contends that the standards set out in Anderson v. United States, 344 F.3d 1343 (Fed. Cir. 2003) and DN Bank v. United States, 331 F.3d 1374 (Fed. Cir. 2003), clearly demonstrate that the FHLBB's approval of Lincoln's application to acquire Great Plains did not constitute the manifest assent necessary to form a contract. Def.'s Mot. for Reconsideration at 2.

We have repeatedly held that "mere approval of [a] merger" by the Bank Board does not amount to a contract because such approval is regulatory, not contractual, in nature. Anderson v. United States, 344 F.3d 1343, 1357 (Fed. Cir. 2003); DN Bank v. United States, 331 F.3d 1374, 1378-79 (Fed. Cir. 2003). We have, however, recognized that Bank Board resolutions and forbearance letters form contractual obligations where the Bank Board goes "beyond a mere statement of regulatory approval" and evidences "manifest assent" to accept and be bound by the terms of the thrift's offer.