CBCA 6031

GRANTED IN PART: January 31, 2019 CBCA 6031 WOOLERY TIMBER MANAGEMENT INC., Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. Charlotte Woolery, President of Woolery Timber Management Inc., Tuolumne, CA, appearing for Appellant. Elisabeth L. Esposito, Office of the General Counsel, Department of Agriculture, San Francisco, CA, counsel for Respondent. LESTER, Board Judge. Appellant, Woolery Timber Management Inc. (WTM), elected to proceed in this appeal under the small claims procedure set forth in Board Rule 52 (48 CFR 6101.52 (2018)), which is authorized by section 7106(b) of the Contract Disputes Act (CDA), 41 U.S.C. § 7106(b) (2012). The Board’s decision in this appeal is based upon a thorough review of the documents in the appeal file, extensive briefing that the parties filed, and the testimony presented during a two-day hearing in San Francisco, California. Under the small claims procedure, the Board’s decision here “is final and conclusive, shall not be set aside except for fraud, and is not precedential.” Rule 52(c). For the reasons set forth below, we grant WTM’s appeal in part. CBCA 6031 2 Findings of Fact On February 9, 2015, the United States Forest Service (USFS) issued a solicitation under the auspices of the Historically Underutilized Business Zone program, seeking offers for a contract for the mastication – that is, chipping, shredding, and/or mulching of woody material – of brush and small trees across 591.1 acres within the Cypress Plantation area of Northern California’s Lassen National Forest. Paragraph 2 of the solicitation indicated that the contract’s period of performance would be from June 1, 2015, to May 31, 2017, although, at paragraph 21 of the solicitation, the USFS stated that “[a]ll work shall be completed by June 1, 2017”; that the June 1, 2015, commencement date was an estimate, dependent upon weather conditions; and that work would have to begin within ten calendar days after the USFS issued a notice to proceed (NTP): All work shall be completed by June 1, 2017. Estimated start work date is June 1, 2015; however the actual date to begin is dependent upon weather conditions. Work shall begin no later than 10 calendar days after the effective date of the Notice to Proceed. Exhibit 1 at 17. At paragraph 29 of the solicitation, the USFS urged offerors to visit the site to identify conditions that they believed might affect contract performance and represented that a failure to inspect the site would not constitute grounds for a post-award claim. On February 23, 2015, WTM submitted a written proposal for the project indicating that, following a site visit by its vice president and project manager, Ed Woolery, it had determined that, although the rocky conditions, previously built windrows, and tight tree spacing created difficulties, WTM could work around them. WTM represented that it would use two or three Feller Bunchers, a type of motorized vehicle harvester, with a Fecon Bullhog BH80 moving head attached to them to perform the mastication work, adding an ASV Skid Steer with a blade or brushing head as needed for tighter areas and fire protection. WTM indicated in its proposal that, because of other commitments for the 2015 season, its estimated start date would be April 2016, although, if weather conditions permitted, an earlier start date could be feasible. WTM represented that, despite the delayed anticipated start, it could still complete the project by June 1, 2017. It anticipated working 374 acres over forty-four working days, using three Feller Bunchers, from April 1 to May 31, 2016, and another 217.1 acres over forty working days, using two Feller Bunchers, from June 1 to July 31, 2016. It stated that, if fire restrictions precluded work in June and July, it could be feasible for it to stop work at the end of May 2016 and return in the fall of 2016 or the spring of 2017 to complete the work prior to the June 1, 2017, completion deadline. CBCA 6031 3 On March 5, 2015, the USFS awarded contract no. AG-9AC7-C-15-0035 to WTM for the 591.1-acre Cypress Plantation mastication, with WTM to be paid at a rate of $474 per acre, for a total award of $280,181.40.