CBCA 6078

GRANTED: November 21, 2018 CBCA 6078 OUTBACK FIREFIGHTING, INC., Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. Jeremiah Nuttall, President of Outback Firefighting, Inc., Corvallis, MT, appearing for Appellant. Jennifer T. Newbold, Office of the General Counsel, Department of Agriculture, Missoula, MT, counsel for Respondent. Before Board Judges BEARDSLEY, SULLIVAN, and LESTER. SULLIVAN, Board Judge. Outback Firefighting, Inc. (Outback) appeals the contracting officer’s decision denying its claim for costs to repair damaged equipment rented by the Forest Service, Department of Agriculture (Forest Service). The parties seek a decision on the record, CBCA 6078 2 pursuant to Rule 19. 48 CFR 6101.19 (2017).1 Because the Forest Service bore the risk of damage to the equipment pursuant to the terms of the contract, we grant the appeal. Background The Forest Service rented from Outback several tents and other equipment for use during firefighting operations in August 2017 under an emergency equipment rental agreement (EERA). Pursuant to this agreement, Outback was to be paid for the rental of this equipment from the time it left to the time it returned to Outback’s facility. Appeal File at 6 (clause 2, Time Under Hire). The agreement assigns to the Government risk of loss, damage, or destruction of the equipment provided without an operator, unless one of three exceptions applies: Loss, Damage, or Destruction: (a) For equipment furnished under [the agreement] without operator, the Government will assume liability for any loss, damage, or destruction of such equipment, except that no reimbursement will be made for loss, damage or destruction due to (1) ordinary wear and tear, (2) mechanical failure, (3) the fault or negligence of the Contractor or the Contractor’s agents or employees or Government employee owned and operated equipment. Id. at 7 (clause 9). Outback provided the equipment without an operator. On August 30, 2017, one of Outback’s tents was damaged when a severe windstorm blew through the camp where the tents were set up. In its submission, Outback provided statements from employees explaining that Outback personnel were at the camp to remove the tents after the Forest Service had left the camp but had not begun to remove the stakes that secured the tents when the storm hit. These employees further stated that they secured the stakes as quickly as they could, but the wind continued to pull the stakes out of the 1 On September 17, 2018, the Board adopted new rules of procedure, Rule 1(a) of which provides that the presiding judge may decide whether to apply the new rules to any case pending before the Board on that date. See 83 Fed. Reg. 41,009, 41,010 (Aug. 17, 2018). Because the parties elected to submit this appeal for a decision on the record and there will be no further proceedings in this appeal, the Board applies the Board’s old rules to this appeal. CBCA 6078 3 ground.2 The Forest Service acknowledges that there were no government personnel at the camp site when the storm arose. Outback submitted a claim to the contracting officer on September 9, 2017, seeking $5947.57, the cost to repair the damage to the tent frame. Outback provided supporting invoices and pictures documenting the damage with its claim. The Forest Service does not dispute that the tent was damaged in the windstorm or that Outback incurred the costs claimed. In October 2017, the contracting officer issued a document titled “determination and findings” in response to Outback’s claim. Appeal File at 1–2. In February 2018, the contracting officer issued a decision in which he added language notifying Outback of its appeal rights to the prior determination regarding Outback’s claim. Id. at 27, 31. In March 2018, Outback timely appealed the contracting officer’s decision. Analysis The Board possesses jurisdiction to decide this appeal from the contracting officer’s February 2018 decision. 41 U.S.C. § 7104(a) (2012). The clock for the ninety-day appeal deadline began to run when the contracting officer issued a final decision containing the appeal notice information that the Contract Disputes Act requires. See Pathman Construction Co. v. United States, 817 F.2d 1573, 1578 (Fed. Cir.