CBCA 2621

DENIED: June 2, 2015 CBCA 2621 JOSEPH GRASSER t/a GRASSER LOGGING, Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. Joseph L. Luciana III of Dingess, Foster, Luciana, Davidson & Chleboski LLP, Pittsburgh, PA, counsel for Appellant. Vincent Vukelich, Office of the General Counsel, Department of Agriculture, Milwaukee, WI, counsel for Respondent. Before Board Judges DANIELS (Chairman),1 GOODMAN, and KULLBERG. DANIELS, Board Judge. Joseph Grasser t/a Grasser Logging (Grasser) entered into a timber sale contract with the United States Forest Service (FS), an entity within the Department of Agriculture. Grasser claims that it is entitled to a rate redetermination under the contract or monetary damages under common law in an amount of either $1,021,815 or $1,651,357 because of the 1 The previous presiding judge has been replaced on the panel because of her upcoming retirement. CBCA 2621 2 defective condition of some of the timber (black cherry trees) which was to be cut. A FS contracting officer denied the claim, and Grasser appealed his decision. In its complaint, Grasser pleads four separate counts as justification for relief. Each of them is based on the fact that the black cherry trees suffered from insect damage. In count I, Grasser says that this damage was an unexpected event which entitles the contractor to a rate adjustment under contract clause BT8.12. In count II, Grasser asserts that the damage was catastrophic, entitling the contractor to a rate adjustment under contract clause BT3.32. In count III, Grasser maintains that “both parties expected that the black cherry saw timber . . . would produce a reasonable percentage of high-grade logs for resale,” and that the insect damage was a “hidden condition” which entitles the contractor to a rate adjustment. In count IV, Grasser contends that the FS misrepresented the condition of the timber by failing to disclose its “institutional knowledge” of the damage, and that the misrepresentation “materially and wrongfully induced Appellant to submit his bid and enter into the contract.” (Grasser recognizes that counts III and IV are alternative bases for relief; both cannot be correct.) Earlier this year, we denied a motion for summary relief submitted by Grasser on the issue of catastrophic damage to black cherry trees. Joseph Grasser v. Department of Agriculture, CBCA 2621, 15-1 BCA ¶ 35,896. The FS now moves for summary relief in the entire case, relying on the same uncontested facts and much of the same reasoning we expressed in denying Grasser’s motion. In ruling on the FS’s motion, we incorporate by reference the “Background” section of our earlier decision and note certain portions of that section which are especially pertinent to our analysis. The FS advertisement of the sale estimated that in the designated area, 3003 hundred cubic feet (CCF) of timber would be available for cutting and that the value of that timber would be $931,743.58. Of the six species for which estimates were provided, the one with the greatest quantity and value was black cherry sawtimber (an estimated 1357 CCF, which at a rate of $654.31 per CCF, would be worth $887,898.67). The FS’s invitation for bids included a clause entitled “Disclaimer of Estimates and Bidder’s Warranty of Inspection.” This clause stated: Before submitting this bid, the Bidder is advised and cautioned to inspect the sale area, review the requirements of the sample sale contract, and take other steps as may be reasonably necessary to ascertain the location, estimated volumes, construction estimates, and operating costs of the offered timber or forest product.