CBCA 5299

DENIED: September 29, 2017 CBCA 5299 SYLVAN B. ORR, Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. Sylvan B. Orr, pro se, Salmon, ID. Daniel B. Rosenbluth, Office of the General Counsel, Department of Agriculture, Golden, CO, counsel for Respondent. Before Board Judges GOODMAN, SULLIVAN,1 and LESTER. LESTER, Board Judge. In this appeal of a contracting officer’s decision under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2012), appellant, Sylvan B. Orr, seeks monetary compensation under an incident blanket purchase agreement (I-BPA) with the United States 1 Judge Richard C. Walters, who was a part of the panel that issued an earlier decision in this appeal, retired from federal service in January 2017. Judge Marian E. Sullivan was selected by random assignment to replace him as a panel member. CBCA 5299 2 Forest Service (USFS) (an entity within the Department of Agriculture, the respondent in this appeal) and a task order issued pursuant to the I-BPA for weed washing units for use in the E-60 Bobcat fire. By decision dated October 18, 2016, the Board dismissed most of Mr. Orr’s appeal, but found that Mr. Orr could pursue that portion of his claim seeking compensation for delays in solid waste disposal allegedly arising from actions under the Bobcat fire resource order that post-dated an executed release of claims. Sylvan B. Orr v. Department of Agriculture, CBCA 5299, 16-1 BCA ¶ 36,522, at 177,931. In allowing Mr. Orr to preserve that portion of his damages claim, we held that, “[t]o the extent that Mr. Orr’s solid waste disposal claim is based upon a Forest Service employee’s alleged actions, or inactions, after execution of the release, the release, at least based upon the information currently in the record, does not bar that claim.” Id. at 177,928 (emphasis in original). The parties have now supplemented the record, providing additional factual information to the Board, and submitted the remaining portion of Mr. Orr’s claim for a decision on the record pursuant to Rule 19 of the Board’s rules. 48 CFR 6101.19 (2016). The Board has thoroughly reviewed the parties’ submissions, including the USFS’s motion for judgment on the administrative record, Mr. Orr’s cross-motion and various responses to the Government’s motion, the USFS’s reply, several declarations, and the exhibits in the appeal file. Those submissions establish that the allegedly defective direction, or absence of direction, that the USFS gave Mr. Orr regarding disposal of his solid waste occurred before Mr. Orr signed a full release of claims under the resource order and that Mr. Orr should have been aware of the defect before signing the release. As we explain below, because Mr. Orr signed a full release of claims without mentioning that the USFS had not given him valid instructions for disposing of the solid waste captured during resource order performance, we deny the portion of Mr. Orr’s claim that is still pending before us. Findings of Fact I. The I-BPA On April 9, 2013, the USFS awarded Mr. Orr an I-BPA for the supply of weed washing equipment and associated services for use in Regions 2 and 4 (Rocky Mountain and Intermountain Regions) during fire suppression and all-hazard incidents. Appeal File, Exhibit A at 1.2 Weed washing involves the use of portable commercial high-pressure/low- volume power washers in washing fire engines, heavy equipment, logging equipment, and other vehicles to remove soil, plant parts, and seeds from them. Id. at 28-30. The I-BPA, 2 All exhibits referenced in this decision are found in the appeal file, unless otherwise noted. CBCA 5299 3 which identified the contractor’s place of business as being located in Salmon, Idaho, was to be effective for three years from the date of award. Id. at 1, 25. Pursuant to the terms of the I-BPA, the USFS would issue an unspecified number of orders to Mr. Orr, called “resource orders,” and Mr. Orr, in response, would choose which, if any, of the orders to accept. Id. at 28-29. Once Mr. Orr accepted an order, he would be “responsible for [providing] all equipment, transportation to/from incident, and setup/takedown necessary to meet or exceed the Agreement specifications.” Exhibit A at 28.