CBCA 6304

DENIED: March 19, 2021 CBCA 6304, 6786 DAWSON & DOUGLAS INC., Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. Casey G. Hull, Owner of Dawson & Douglas Inc., Monroe, OR, appearing for Appellant. Zoey L. Kohn, Office of the General Counsel, Department of Agriculture, Portland, OR, counsel for Respondent. Before Board Judges BEARDSLEY, VERGILIO, and DRUMMOND. BEARDLSEY, Board Judge. These consolidated appeals arise from a dispute involving a timber sales contract known as the Parker Wyatt Timber Sale contract (contract or sale). Dawson & Douglas Inc. (D&D) appealed decisions by the United States Department of Agriculture, Forest Service (Forest Service) contracting officer to not extend the timber sales contract and to assess damages against D&D in the amount of $100,513.97. For the reasons set forth below, we deny the appeals. CBCA 6304, 6786 2 Findings of Fact Under the contract, D&D purchased timber from the Government on land managed by the Forest Service, agreeing to pay $11.39 per ton for an estimated 49,241 tons of saw timber, or an estimated sale cost of $560,854.99. Appeal File, Exhibits 7, 10.1 The appraised value of the timber was $2,165,908.50. Exhibit 2. The contract required D&D to cut timber and provide slash treatment2 within various units in the Oregon Umpqua National Forest. Exhibit 10. The contract also required that D&D construct certain specified roads and perform road maintenance work. Id. The contract had an original termination date of March 31, 2016, and a specified road completion date of October 31, 2014. Id. Due to government delay in awarding the contract to D&D, the contract termination date was extended to March 31, 2017, and the specified road construction completion date was extended to October 31, 2015. Exhibits 12, 13, 18, 22. Throughout the term of the contract, D&D failed to timely complete the specified road construction, post-haul road maintenance, and slash treatment (collectively known as “compliance work”). The proper treatment of slash is essential to reducing the risk of wildfire, while the timely construction of roads and completion of post-haul road maintenance is critical to both protect natural resources and to limit and repair damage caused by logging operations. D&D had only completed $38,947.41 of the $154,187.15 worth of specified road construction by October 31, 2015. Transcript at 21, 23-24; Exhibit 82. D&D repeatedly failed to complete slash treatment “within 30 days of removal of approximately three-quarters of the volume in the unit” or “within thirty days of the beginning of the next Normal Operating Season,” depending on when the Included Timber was removed as required by the contract. Transcript at 50-54; Exhibit 10 at 106. As of February 2017, D&D had completed slash work in only six of the twenty-six sale units. D&D admitted to the contracting officer that it could not “afford to do compliance work without income.” 1 All exhibits are found in the appeal file, unless otherwise noted. 2 Slash is defined in the contract as “vegetative debris including, but not limited to, cull logs, blasted or pushed-out stumps, chunks, broken tops, limbs, branches, rotten wood, damaged brush, damaged or destroyed reproduction, saplings or poles, resulting from Purchaser’s Operations.” Slash treatment required D&D to “pile, burn, yard, construct fire lines or otherwise treat slash” within designated areas. 2 CBCA 6304, 6786 3 On repeated occasions, D&D’s actions violated the terms of the contract, and the Forest Service worked with D&D instead of suspending the contractor. In June 2016, D&D used unapproved logging methods and an unapproved temporary road to log unit 12. Rather than suspending operations, the Forest Service instructed D&D on appropriate methods. D&D was also warned repeatedly, but not suspended, about the need for accurate removal permits. In addition, D&D failed to complete required slash work on logged units.