CBCA 2131

DENIED: December 7, 2017 CBCA 2131, 2778 BOB L. WALKER, Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. Robert C. Myers of Montana Resource & Asset Protection, Hamilton, MT, counsel for Appellant. Jennifer T. Newbold, Office of the General Counsel, Department of Agriculture, Missoula, MT, counsel for Respondent. Before Board Judges BEARDSLEY, ZISCHKAU, and CHADWICK. CHADWICK, Board Judge. Bob L. Walker timely appealed from two decisions of a United States Forest Service contracting officer, one issued in June 2010 and the other issued in February 2012, denying two certified claims seeking damages totaling about $3 million under a timber sale contract. The two appeals were consolidated and are before us for decision after a four-day hearing in June 2017. We deny both appeals. Facts Because, as we explain, we lack sufficient evidence in the record to award any damages, we organize our findings, after a brief overview of the contract, primarily around CBCA 2131, 2778 2 the grounds for relief that Mr. Walker asserted in his certified claims, and the evidence that he and the respondent, Department of Agriculture (USDA), the Forest Service’s parent agency, introduced into the record regarding those grounds for relief. I. The Contract The Forest Service awarded Mr. Walker the Kerleebert Stewardship Project Contract in January 2007. The timber sale area was within the Bitterroot National Forest in Montana. Mr. Walker agreed to pay $8.16 per ton of harvested sawlog (the most marketable timber) and less for other timber. The Forest Service estimated in the contract that the trees marked for cutting in the project area included 24,558 tons of sawlog, but the contract stated that “estimated volumes . . . are not to be construed as guarantees or limitations of the timber volumes to be designated for cutting under the terms of the contract.” The prospectus had further advised potential bidders that the designated trees were rapidly deteriorating from beetle damage, as testimony at the hearing confirmed. The standard form on which Mr. Walker submitted his bid for the contract included a three-paragraph “Disclaimer of Estimates and Bidder’s Warranty of Inspection.” It said that the bidder “warrant[ed] that this bid [wa]s submitted solely on the basis of its examination and inspection” of the sale area, and concluded, “The bidder further holds the Forest Service harmless for any error, mistake, or negligence regarding estimates, except as expressly warranted against in the sample contract.” Mr. Walker did not fully inspect the sale area before bidding, however. He testified that he visited the sale area four times, but saw only “10 or 15 percent” of the trees due to icy conditions. He added that he “trust[ed] the volume would be there, from my past, my history, with the Bitterroot National Forest. It’s always been there.” As Mr. Walker also testified, however, the project “was in a degrading process from when it was first analyzed to when it was sold and completed. It was beetle killed, it was rotting every day.” Although Mr. Walker had estimated in his bid that he would begin logging operations in February 2007, due to a delay in obtaining a performance bond and other issues attributable to him, he began work in September 2007. In September 2008, the parties signed a bilateral modification to delete from the contract nine of the sixteen marked logging areas, or units. The parties call the nine deleted units “helicopter units” because, under the contract, Mr. Walker was supposed to have harvested them on an expedited basis by the end of October 2007, by helicopter. The September 2008 modification deleting the “helicopter units” reduced the contract volume estimate to 11,268 tons of sawlog. (In the contract as awarded, the Forest Service had estimated that there were 8373 tons of sawlog in the seven “non-helicopter” units. Neither party tried to explain this discrepancy.) The September 2008 modification also increased the price of sawlog from $8.16 to $15.15 per ton. (Although there was no testimony on this point, we infer that the price went up because the units left in the sale were less costly to log than the deleted units.) The modification CBCA 2131, 2778 3 stated that “Bob Walker fully and forever releases and discharges the USDA-FOREST SERVICE . . .