CBCA 4735

DISMISSED FOR LACK OF JURISDICTION: December 3, 2015 CBCA 4735 BOB L. WALKER, Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. Bob L. Walker, pro se, Hamilton, MT. Jennifer T. Newbold, Office of the General Counsel, Department of Agriculture, Missoula, MT, counsel for Respondent. Before Board Judges HYATT, WALTERS, and SULLIVAN. SULLIVAN, Board Judge. Appellant, Bob L. Walker, appeals the termination of a supplemental project agreement (SPA) to Timber Sale contract #01-03-02-023891, which he entered into with respondent, the Department of Agriculture, Forest Service (Forest Service). The Forest Service moves to dismiss the appeal for lack of jurisdiction on the ground that Mr. Walker’s appeal is untimely. For the reasons set forth below, we grant the Forest Service’s motion. CBCA 4735 2 Findings of Fact Award, Performance, and Termination of the Contract On February 1, 2006, the Forest Service awarded to Mr. Walker a contract to cut timber in the Darby Ranger District of Montana’s Bitterroot National Forest.1 Following award, the parties disagreed regarding the requirements for acceptable winter logging conditions. The record contains several requests by Mr. Walker for contract adjustments and time extensions because of poor weather conditions. While the Forest Service apparently granted several of Mr. Walker’s requests, in January 2013, the Forest Service denied Mr. Walker’s requests for a further extension of the time to perform and to delete work from the sale contract. The Forest Service terminated the timber sale contract as uncompleted on February 8, 2013, but granted Mr. Walker additional time, until July 31, 2013, to complete erosion control work required under the contract. The Forest Service re-advertised the remaining timber under the sale on September 19, 2013, but there were no bidders. On December 6, 2013, Mr. Walker was notified that the timber sale “terminated with unresolved Purchaser obligations.” Contracting Officer’s Final Decision Assessing Damages and Reprocurement Costs In a contracting officer’s final decision dated February 20, 2014, the Forest Service assessed damages arising from the termination for default of Mr. Walker’s contract. The final decision set forth the calculation of the Forest Service’s damages arising from the termination of Mr. Walker’s contract: 1. Contract Value $3,350.08 2. Other Damages a. Cost of resale or reoffering $ 24.90 b. Interest to midpoint of the contract resale period $ 76.62 3. Total Potential Damages (Sum of 1 and 2) $3,451.60 4. Appraised and Resale Value at Termination - $1,259.89 5. Total Damages $2,191.71 The contracting officer notified Mr. Walker that the amount would be deducted from his performance bond on the contract. 1 The agency filed its motion to dismiss before the appeal file was submitted. The facts are taken from the parties’ submissions. CBCA 4735 3 At the end of the decision, the contracting officer advised Mr. Walker of his appeal rights and deadlines for filing any appeal: This is the final decision of the Contracting Officer. This decision may be appealed to the Civilian Board of Contract Appeals (CBCA). . . . If you decide to make such an appeal, you must mail or otherwise furnish written notice thereof to the [Board] within 90 days from the date you receive this decision. . . . In lieu of appealing to the [Board], you may bring an action directly in the Court of Federal Claims within 12 months of the date you receive this decision. With his notice of appeal, Mr. Walker provided a United States Postal Service (USPS) certified mail receipt, for a letter postmarked February 20, 2014, sent to Mr. Walker’s address. Mr. Walker also provided a USPS tracking printout that the certified letter was delivered to Mr. Walker’s address in Hamilton, Montana, on February 21, 2014. Appellant’s Response to Contracting Officer’s Final Decision In a letter to the contracting officer dated May 9, 2014, Mr. Walker challenged the termination of the contract, arguing that it was improper due to the persistent issues related to winter logging requirements.