CBCA 4939

DENIED: June 15, 2016 CBCA 4939 BMC CONTRACTING, LLC, Appellant, v. DEPARTMENT OF AGRICULTURE Respondent. Robert S. Moberly, Executive Vice President of BMC Contracting, LLC, Mt. Sterling, KY, appearing for Appellant. Steven J. Youngpeter, Office of the General Counsel, Department of Agriculture, Atlanta, GA, counsel for Respondent. Before Board Judges HYATT, DRUMMOND, and WALTERS. DRUMMOND, Board Judge. BMC Contracting, LLC (BMC) entered into a timber sale contract with the United States Forest Service (FS), an entity within the Department of Agriculture. BMC appeals a contracting officer’s (CO’s) decision denying its claim for a 35% reduction, or the amount of $91,879.35, to the total contract purchase price. BMC alleges that the FS’s methods for estimating the quantity and the value of the timber provided inaccurate results as to the timber volumes available for sale. BMC also alleges that defects in the timber (fire scars and decay) contributed to the lower harvest volumes. BMC pursues relief under six theories. The FS has moved for summary relief. BMC opposes the FS’s motion. CBCA 4939 2 Findings of Fact1 In July of 2014, the FS advertised for bids for the sale of timber in a portion of the Daniel Boone National Forest in Kentucky. The total estimated volume of timber was 4537 hundred cubic feet (CCF), derived from an estimated volume of 2714 CCF sawtimber and 1823 CCF of pulpwood. The prospectus urged bidders to examine the timber units to make their own estimates, emphasizing that the volume quantities listed were merely estimates and were not guaranteed. The estimated total value of all the timber was $200,344.50. The bid form included a “Disclaimer of Estimates and Bidder’s Warranty of Inspection” clause. This clause states: Before submitting this bid, the Bidder is advised and cautioned to inspect the sale area, review the requirements of the sample 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 products. Failure to do so will not relieve the Bidder from responsibility for completing the contract. The Bidder warrants that its bid/offer is submitted solely on the basis of its examination and inspection of the quality and quantity of the timber or forest product offered for sale and is based solely on its opinion of the value thereof and its costs of recovery. Bidder further acknowledges that the Forest Service: (i) expressly disclaims any warranty of fitness of timber or forest product for any purpose; (ii) offers this timber or forest product as is without any warranty of quality (merchantability) or quantity; and (iii) expressly disclaims any warranty as to the quantity or quality of timber or forest product sold except as may be expressly warranted in the sample contract. The Bidder further holds the FS harmless for any error, mistake, or negligence regarding estimates except as expressly warranted against in the sample contract.2 1 The relevant facts are not in dispute. 2 Neither party submitted the sample contract for review. Appellant has not argued that any exception in this document would apply. CBCA 4939 3 Prior to bidding, BMC made four trips to the timber site – two of the four with different loggers who, according to BMC, have a combined 120 years’ experience in the logging industry. BMC submitted a bid in the amount of $262,512.45. BMC, by signing the bid form, warranted that it was submitting its bid “solely on the basis of its examination and inspection of the quality and quantity of the timber” and that the bid was “based solely on its opinion of the value thereof and its costs of recovery, without any reliance on Forest Service estimates of timber or forest product quality, quantity or costs of recovery.” The parties entered into the Freeman Fork timber sale contract on September 18, 2014.