MOTION TO DISMISS IN PART DENIED: April 13, 2015
CBCA 4122
LYB MECHANICAL TIMBER FALLING AND PROCESSING,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
Jon E. Cushman of Cushman Law Offices, P.S., Olympia, WA, counsel for Appellant.
Benjamin R. Hartman, Office of General Counsel, Department of Agriculture,
Portland, OR, counsel for Respondent.
Before Board Judges DANIELS (Chairman), GOODMAN, and SHERIDAN.
SHERIDAN, Board Judge.
Respondent, Department of Agriculture, Forest Service (FS or agency) moves the
Board to dismiss a portion of the claim filed by LYB Mechanical Timber Falling and
Processing (LYB or purchaser).  In its claim, LYB avers that FS caused it to fail to complete
the contract and alleges: (1) FS wrongly denied its request for a contract term extension
causing $451,928 in lost profits; (2) FS’s flawed erosion-control requirements on a .3 mile
road caused it to incur $8320 in repair costs and $180,310 in idle equipment costs; (3) FS’s
suspension of work on October 5, 2012, caused it to incur $69,350 in idle equipment and
labor costs; and (4) FS’s misrepresentation of the sale’s actual volume caused it $201,360
in lost profits.
Respondent’s motion requires the Board to determine whether the purchaser timely
submitted the portion of its claim seeking $69,350 in damages that LYB alleges arose when


CBCA 4122 2
FS suspended LYB’s operations pending correction of certain contract breaches.  We deny
FS’s motion to dismiss for the reasons set forth below.
Background
On January 31, 2005, FS awarded to LYB contract 073614 (contract), known as the
Jackson Timber Sale, for the sale of timber in the Olympic National Forest.  The sale
included an estimated 37,342 tons of timber.  That volume was distributed across a 1187 acre
sale area which was divided into seventeen subdivisions.  Under the terms of the contract,
LYB had four years to harvest the timber.  FS granted two term adjustments, which extended
the time to harvest to December 31, 2013.  Sam Bickle was identified as LYB’s
representative on the sale and Pete Sanda as the FS representative (FSR). 
LYB submitted to FS an operating schedule on August 31, 2012, indicating that the
operations in subdivision 8E would begin on September 1, 2012, and conclude on October
15, 2012.  The schedule also indicated that LYB’s operations in subdivision 8F would begin
on September 10, 2012, and conclude on October 20, 2012.  By early October, appellant had
left its logging operations in these subdivisions, taken down its equipment, moved the
equipment to subdivision 8B, and set up the equipment in that subdivision.  
On October 5, 2012, FS timber sale administrator (SA) Adrian Frank inspected
subdivisions 8E and 8F and identified several unsatisfactory conditions regarding the state
in which LYB had left those subdivisions, which he documented as contract breaches in a
timber sale inspection report (TSIR).  Prominent on the TSIR was the title “Notice of
Breach.”  After discussing those breaches with contracting officer (CO) Jana Carlson, SA
Frank verbally suspended LYB’s cutting operations on October 5, 2012. 
Contract provision B9.3, Breach, provides: 
In event Purchaser breaches any of the material provisions of this contract,
Forest Service shall give Purchaser notice of such breach and, allowing
reasonable time for remedy of such breach and of Forest Services’s election
to suspend, may give notice to suspend all or any part of Purchaser’s
Operations.  Such notice of breach and notice to suspend Purchaser’s
Operations shall be written, except oral notices may be given if such breach
constitutes an immediate threat to human life or a threat of immediate and
irreparable damage to National Forest resources.  
. . . .  

CBCA 4122 3
Suspension under this Section shall not entitle Purchaser to any remedies
arising under B8.33 [Contract Suspension and Modification].  
By letter dated October 15, 2012, CO Carlson provided to LYB written documentation
of the breaches identified in the TSIR, specifying that LYB breached the following contract
provisions: B2.2, Utilization and Removal of Included Timber; B6.1, Representatives; B6.3,
Control of Operations; B6.32, Protection of Reserve Trees; B6.4, Conduct of Logging; B6.7,
Slash Disposal; C2.35, Individual Tree Designation; and C6.74, Slash Treatment.  In her
letter, CO Carlson set forth the steps LYB needed to follow to remedy the breaches and
prevent similar breaches in the future.  She notified LYB that all cutting operations were
suspended until LYB had designated a field representative, as required by paragraph B6.1
of the contract, who would ensure contract compliance; submitted a written plan describing
how the issues would be corrected and safeguarded against in the future; and paid a bill of
collection for liquidated damages in the amount of $70.90 and an administrative fee of $25
for the undesignated timber that LYB had cut and removed from the sale area.  LYB was also
instructed to return to subdivision 8E to remove designated trees left uncut and to complete
required slash treatments in subdivisions 8E and 8F.
By handwritten letter dated October 15, 2012, Mr. Bickle wrote “[t]o remedy this
breach,” and identified David Soderlind and Frank House as LYB’s field representatives. 
Mr. Bickle also provided a plan describing how the breaches would be cured and how similar
breaches would be avoided in the future.  On October 16, LYB paid the bill of collection. 
CO Carlson notified LYB that she considered the issues raised in her breach letter to be
corrected and lifted her suspension of cutting operations on October 17, 2012. 
On October 24, 2012, SA Frank inspected subdivisions 8C, 8D, 8E, 8F, and 9 and
wrote a TSIR, concluding, among other things, that LYB had completed all contractual work
for subdivision 8E.  At the top of the October 24 TSIR, SA Frank checked the blocks
ACCEPTANCE and OTHER.  With regard to subdivision 8E, SA Frank wrote, “Recommend
unit be accepted.”  Some initials beside the recommendation; seem to be either Mr.
Soderlind’s or FSR Sanda’s initials.  FSR Sanda signed the TSIR on October 24, 2012, and
it appears that Mr. Soderlind signed for LYB on October 29, 2012.  On that same TSIR, SA
Frank identified certain work that remained outstanding in subdivisions 8C, 8D, 8F, and 9. 
SA Frank inspected subdivisions 8, 8B, 8D, 8F, and roads on November 14, 2012, and
concluded that LYB had completed all contractual work for subdivisions 8D and 8F.  He
wrote, “Recommend CO/FSR accept both subdivisions as all required work is now
completed.”  SA Frank checked the blocks ACCEPTANCE and OTHER on the
November 14 TSIR.  Mr. Bickle signed the November 14 TSIR on November 15, 2012.  The
signature block for the FS is blank on that TSIR.   

CBCA 4122 4
On November 16, 2012, CO Carlson sent LYB a letter to document that LYB had
fulfilled its obligations as set forth in FS’s letter of October 15, 2012, relating to the breaches
in subdivisions 8E and 8F. 
On December 12, 2013, LYB requested that FS issue an “extension of the [contract]
termination date . . . from December 31, 2013 to December 31, 2014.”  No reasons were
given for the request.  CO Carlson treated the request as a request for a contract term
extension and found that as of December 13, 2013, the conditions for a contract term
extension had not been met.  She notified LYB that pursuant to contract provision B8.2,
Period of Contract, “all obligations of Purchaser shall be discharged no later than
‘Termination Date’ stated on A15, unless it is adjusted pursuant to B8.21 or B8.212 or
extended pursuant to B8.23 or B8.32, excepting only those obligations for which Forest
Service has given permission to delay performance.”   
Pursuant to its terms, contract 073614 terminated on December 31, 2013.  CO Carlson
wrote LYB on January 6, 2014, explaining why LYB did not qualify for a contract term
extension and notifying LYB that contract 073614 was terminated.  Among other things, CO
Carlson informed LYB that FS would complete a damage appraisal to calculate what, if any,
damages were due to FS for LYB’s failure to log the entire sale area.  
LYB harvested and paid for only 24,513 of the sale’s estimated 37,342 tons of timber
and logged only twelve of the seventeen subdivisions. 
On March 6, 2014, LYB directed a certified claim to CO Carlson seeking a total of
$911,272.33 in damages.  The third portion of the claim sought $69,350 in damages “for loss
of 10 operational days” and alleged “unwarranted breach and unreasonable delay in lifting
[the] October 2012 suspension.”  LYB’s claim avers that the breach notice was verbally
issued in the field on October 5 and corrective work required to lift the suspension was
completed on October 8.  LYB alleges that written notice of the breaches was “unnecessarily
delayed” until October 15, thereby subjecting LYB to an “unreasonably long” suspension
period which was not lifted until October 17.  “This unwarranted suspension cost LYB 10
days of work where it was prevented from cutting trees per the contract.” 
CO Carlson issued a final decision on October 31, 2014, rejecting the suspension
portion of LYB’s claim and concluding that LYB was not entitled to compensation for the
time it lost due to its own breaches of the contract:
On October 5, 2012, the Forest Service suspended operations because the
Purchaser was not harvesting trees as designated.  The agency lifted that
suspension once the Purchaser had taken corrective conduct.  Both the breach

CBCA 4122 5
and the duration of the suspension were warranted.  Regardless the Purchaser
waived any claim in connection with the October 2012 notice of breach by
failing to submit a claim within the established time limits in the contract.  
The contract contains several provisions which, in pertinent part, are set forth below. 
Contract provision B6.36, Acceptance of Work, states that “[w]hen all contractual work of
Purchaser has been accepted for any subdivision of Sale Area or cutting unit identified on
Sale Area Map, subdivision or cutting unit shall be eliminated from Sale Area on written
notice of either party to this contract.”  Contract paragraph B9.2, Disputes, provides that “this
contract is subject to the Contract Disputes Act of 1978” and defines a claim for purposes
of this contract as “a written demand or assertion by one of the parties seeking, as a legal
right, the payment of money, adjustment or interpretation of contract terms, or other relief,
arising under or relating to this contract.”  Paragraph B9.2 further dictates that a claim by the
purchaser shall be made in writing and submitted to the CO for decision.  The contract also
includes paragraph B9.21, which further limits the time periods in which a purchaser may
file a claim:
Time Limits for Submission of Claim.  Failure by Purchaser to submit
a Claim within established time limits shall relinquish the United States from
any and all obligations whatsoever arising under the contract or portions
thereof.  Purchaser shall file such Claim within the following time limits:
(a)  When Purchaser constructs Specified Road, Purchaser must file any
Claim not later than 60 days after receipt of Forest Service written notification
of acceptance;
(b)  When Forest Service constructs Specified Road, Purchaser must
file any Claim not later than 60 days after receipt of Forest Service written
notification authorizing use of road;
(c)  For subdivisions or cutting units, purchaser must file any claim not
later than 60 days after receipt of Forest Service written notification that
subdivision or cutting unit has been accepted; and
 (d) In all other cases, purchaser must file any Claim not later than 60
days after receipt of Contracting Officer written notification that timber sale
is closed.  
Discussion

CBCA 4122 6
Relying upon provisions found at paragraph B9.21 in the contract, the FS moves to
dismiss a portion of this appeal, asserting that LYB failed to submit a legally sufficient and
timely claim for the $69,350 in idle equipment and labor costs it seeks related to FS’s
October 5, 2012, suspension of work.  FS timber sales contracts contain unique contract
provisions that address the submission of certain claims.  The contract in issue provides that
“[f]ailure by Purchaser to submit a Claim within established time limits shall relinquish the
United States from any and all obligations whatsoever arising under the contract or portions
thereof. . . .  For subdivisions or cutting units, Purchaser must file any claim not later than
60 days after receipt of Forest Service written notification that subdivision or cutting unit has
been accepted.”  FS posits that: 
[LYB] submitted its March 6, 2014, claim regarding the October 5, 2012,
suspension more than 470 days after the subdivisions at issue [subdivisions 8E
and 8F] had been accepted.  Appellant’s third claim is, therefore, time-barred
and must be dismissed.  That claim undeniably concerns the oral suspension
order that was documented in the October 5, 2013, timber inspection report. 
. . . .
On October 29, 2012, appellant acknowledged receiving written notification
that the Forest Service accepted subdivision 8E when the company’s
representative signed the October 24, 2012 [TSIR].  On November 15, 2012,
appellant acknowledged receiving written notification that the Forest Service
accepted subdivision 8E when the company’s representative signed the
November 14, 2012 [TSIR].  Further, if there were any doubts that work had
been completed in those subdivisions, [CO] Carlson followed up with a letter
dated November 16, 2012, which stated that appellant had completed all the
actions she had required to be done in those subdivisions.  Under the most
generous interpretation of these facts, 60 days from the time appellant received
notice of the Forest Service’s acceptance of the subdivision elapsed on
January 15, 2013.  Appellant asserted no claim involving subdivisions 8E and
8F until March 6, 2014.
Respondent’s Memorandum of Law (citations omitted).
LYB opposes the motion and argues that the portion of the claim relating to the
$69,350 in suspension costs should not be dismissed.  Appellant argues, in pertinent part, that
LYB was not given written notice that subdivisions 8E and 8F were accepted; the contract

CBCA 4122 7
requires specific action on the part of FS to convey final acceptance of the work1; the
$69,350 claim did not become ripe until after the contract terminated; and appellant properly
brought its claims under paragraph B9.21(d), which provides in cases not involving specified
roads, subdivisions, or cutting units, that the purchaser must file any claim not later than sixty
days after receipt of contracting officer written notification that the timber sale is closed.2  
Decisions by this Board and its predecessor board for timber sales contracts, the
Department of Agriculture Board of Contract Appeals, have upheld the time limits set by the
clause found at paragraph B9.21 of the contract.  Duffy Inc. v. Department of Agriculture,
CBCA 1369, 09-2 BCA ¶ 34,250 (claim time barred because it was submitted after the sixty
day limit set by paragraph B9.21(d)); Thomas Creek Lumber & Log Co., AGBCA 2005-132-
1, 06-1 BCA ¶ 33,283, aff’d sub nom. Thomas Creek Lumber & Log Co. v. Johanns, 227 F.
App’x 890 (Fed. Cir. 2007) (per curiam) (claim time barred because it was submitted after
the sixty day limit set by paragraph B9.21(a)).3
FS has not explained what constitutes acceptance of a subdivision or the scope of
authority the various FS personnel assigned to this contract possessed to accept subdivision
work.  Based on the evidence before us, and depending on whose initials are beside the
recommendation as to subdivision 8E, subdivision 8E appears to have been accepted either
on October 24, 2012, when FSR Sanda signed the TSIR, or on October 29, 2012, when Mr.
Soderlind signed the TSIR.  It is unclear when the work on subdivision 8F was accepted
because it does not appear that a FSR representative ever signed the TSIR.  However, this
analysis is not relevant to our denial of FS’s motion.  
We deny the motion because it does not appear that LYB’s claim, which purportedly
arises out of FS’s suspension of its work, is a claim for a subdivision or cutting unit as
referenced by paragraph B9.21(c).  When FS verbally suspended LYB’s cutting operations,
it suspended all of LYB’s cutting operations, not just those on subdivisions 8E and 8F. 
Whether or not the suspension was warranted, it purportedly impacted the entire contract. 
1 LYB posits that a recommendation from the SA on a TSIR does not constitute
acceptance.
2 Respondent refers to the provision at paragraph B9.21(d) as the “catch-all” provision
for all other cases that would not otherwise be time-barred under subsections (a) through (c)
of ¶ B9.21.
3 In Thomas Creek, the Board rejected appellant’s argument that a claim related to the
issuance of a unilateral change order for particular road that had been accepted could be
deferred until contract closure and considered timely under paragraph B9.21(d).

CBCA 4122 8
While the FS’s decision to suspend LYB’s cutting operations was taken as a result of
breaches that occurred in logging of subdivisions 8E and 8F, the suspension did not
substantially impact those subdivisions because, as indicated by the FS, LYB had completed
cutting those subdivisions and had moved to and begun cutting other subdivisions when the
suspension was ordered.  The suspension, which appears to have been in place eight working
days, from October 5 to 17 (October 6 and 7 were a Saturday and Sunday, as were October
13 and 14), potentially affected subdivisions 8C, 8D, 8F and 9, which appear from the
October 10 TSIR to have been the subdivisions that LYB was working on when the
suspension was issued.  Whether or not the length of the suspension was reasonable, given
the breaches and remedial actions, and whether or not LYB incurred $69,350 in idle
equipment and labor costs, are issues that are likely related to several subdivisions and not
limited to subdivisions 8E and 8F.  Application of the time limits set forth in paragraph
B9.21(c) of the contract are not appropriate for this portion of the claim.
Decision
Respondent’s motion to dismiss in part is denied.
                                                             
PATRICIA J. SHERIDAN
Board Judge
We concur:
                                                                                                                                  
STEPHEN M. DANIELS ALLAN H. GOODMAN
Board Judge Board Judge