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for fraud, and is not precedential.”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.  Like the solicitation, the contract identified a period
of performance from June 1, 2015, to May 31, 2017, with a delivery date of May 31, 2017,
but contained the same language identified above indicating a June 1, 2017, completion date,
the estimated nature of the June 1, 2015, commencement date, and the requirement to begin
work no later than ten calendar days after the USFS issued a NTP.  The contract required
WTM to “maintain progress at a rate that will ensure quality and completion within contract
time,” but did not specifically incorporate by reference the proposal that WTM had submitted
or WTM’s representations in the proposal about performance timing or level of equipment
support.  WTM was to be paid on a periodic basis for the number of acres completed during
a period of time, in response to submitted invoices.  The contract also incorporated by
reference the Commercial Items contract terms and conditions provision at Federal
Acquisition Regulation (FAR) 52.212-4, 48 CFR 52.212-4 (2015).
The same day as the contract award, the USFS contracting officer forwarded the
contract to WTM for its signature along with a letter postponing a standard pre-work meeting
because WTM did not anticipate starting work until the next season.  She also indicated as
follows:  “Please note that no work shall start prior to issuance of the Notice to Proceed
which is normally issued at the pre-work meeting.”
Knowing that WTM did not plan to commence mastication operations until April
2016, the USFS made virtually no contact with WTM until March 22, 2016, when the USFS
contracting officer’s representative (COR), Paul White, contacted WTM’s president,
Charlotte Woolery, by email to check on an operating schedule for the project.  In response,
Ms. Woolery indicated that, because bad weather had delayed WTM’s continuing work on
another project and because WTM was in negotiations for yet another contract that would
require immediate performance, WTM might not be able to begin the Cypress Plantation
project until the spring of 2017.  Mr. White expressed concern that, with such a delay, the
May 31, 2017, completion deadline for the 591.1-acre project would be at risk and pushed
for a spring 2016 start.  By email on March 28, 2016, Ms. Woolery asked for a couple of
weeks to develop a more complete picture of  how WTM would perform.  By the time that
Mr. White went on a several-month detail on May 15, 2016, WTM had not yet responded,
and the USFS had not issued an NTP.
By August 2016, WTM had still not begun work on the Cypress Plantation project. 
By email dated August 15, 2016, Ms. Woolery asked the USFS contracting officer for an
extension of the project deadline, to and including December 2017, citing as her justification
an emergency contract that WTM had entered with the State of California, but involving the
USFS, for removing dead and hazardous trees in Tuolumne County, California.  On

CBCA 6031 4
September 8, 2016, PJ Vilhauer, who had just been assigned to replace the prior contracting
officer, indicated to Ms. Woolery that she was disinclined to extend the project based, in part,
upon the lack of communication from WTM between March and August 2016.   On
September 13, 2016, Ms. Woolery again asked for an extension with a new start date in the
spring of 2017.  The contracting officer denied that request and, on October 3, 2016, issued
a cure notice, finding WTM’s failure to begin operations in the 2016 season to be a condition
endangering performance of the contract.
Ms. Woolery indicated her October 5, 2016, response to the cure notice that WTM
would begin mastication work the following week.  Subsequently, on October 11, 2016, the
contracting officer for the first time issued an NTP, indicating that “time on this contract will
start at the beginning of business on October 12, 2016.”  WTM subsequently began work
and, by November 2016, completed mastication of 42.79 acres in the project area before
stopping because of winter weather.  As is typical in the area being worked, mastication
could not proceed during the remainder of the winter because of weather conditions.
On April 5, 2017, before WTM had returned to work for the spring season, the USFS
notified WTM that, because nesting pairs of northern goshawks and California spotted owls
had settled into an area adjacent to the project, the USFS was required pursuant to the
National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq. (2012), to suspend
operations in a 74.5-acre section of the Cypress Plantation project through at least June 1,
2017, after which time there might be a limited operating period (LOP) during which
mastication work in that area might be performed.  As the contracting officer saw it, though,
the contract was supposed to end on June 1, making it impossible for Woolery to work that
area during the contract performance period.  On April 10, 2017, the USFS contracting
officer sent WTM an unsigned draft bilateral contract modification, no. 0002, that, if
executed, would eliminate those acres from the contract, with a corresponding $35,313
contract price reduction.1  At the same time, the contracting officer expressed concern about
WTM’s ability to complete the remaining portions of the project within the short time
remaining for contract performance and again sought a cure within the following ten days.
WTM did not sign modification no. 0002, but returned to work the project site on
April 19, 2017.  A week or so following its return, WTM was blocked from using an access
road at one edge of the project that it needed to get its service vehicles into the portion of the
project area that it was masticating.  A ribbon demarcating the section in which Woolery
could not work was slightly misplaced, Mr. Woolery testified, in a manner that affected
1 The draft modification clearly envisioned bilateral execution prior to becoming
effective, stating that the modification was to be “[b]y mutual agreement of both parties.”

CBCA 6031 5
access to a service road that tied into the 340333 spur, and, for a period of two weeks, WTM
was required to take its service vehicles through a roundabout and slow route to access the
work area.  The road access issue added approximately thirty-two hours of travel time
(twenty to forty minutes per day for each of three pieces of equipment) to WTM’s work over
the course of those two weeks, time that Mr. Woolery contemporaneously tracked on a daily
calendar that was admitted into the record.  Once WTM was able to pound a path through
another area off of the main road following additional mastication work on May 12, 2017,
its access issues ended.
By April 20, 2017, WTM had hired a consultant, Robert J. Malyszek of Malyszek
Consulting, to assist it in responding to the April 10, 2017, cure notice.  Mr. Malyszek
viewed the unsigned draft modification deleting the 74.5 LOP acres as “really a constructive
termination for convenience” that failed properly to compensate WTM for the monetary loss. 
He represented that, in preparing its offer, WTM had allocated fixed costs across the total
591.1 acres to be masticated under the original contract and that taking 74.5 acres out of the
contract impacted that fixed cost allocation.  He also asserted that, under the contract, WTM
was supposed to have two years to complete performance and that, because the USFS did not
issue the NTP until October 12, 2016, WTM should have until October 11, 2018, to complete
performance.  Nevertheless, he indicated that WTM was working hard to complete all work
by the end of May 2017.
The USFS contracting officer responded by letter dated April 25, 2017, blaming
WTM for endangering performance by having failed to undertake work activities in a timely
manner.  She indicated that “the delay in the issuance of the [NTP] is due to your failure to
begin work”; that, once she was assigned as the successor contracting officer, she issued the
NTP “to get you motivated to begin this project”; and that WTM was not entitled to a day-by-
day extension, through October 2018, because of an alleged delay in issuance of the NTP. 
She reiterated that contract completion was required by May 31, 2017, and again requested
a submission regarding the impact of the deletion of the 74.5 LOP acres from the contract.
WTM and Ms. Vilhauer, the USFS contracting officer, continued their
communications during May 2017, while WTM simultaneously was continuing its
mastication work in the Cypress Plantation area, but never came to an agreement on the 74.5
LOP acres.  Neither party ever executed modification no. 0002, either bilaterally or
unilaterally.  By the end of May, the USFS contracting officer had decided that there was no
valid basis for allowing WTM to continue its mastication work after the May 31, 2017,
contract completion deadline.
On May 30, 2017, Mr. White visited the project site and showed WTM’s on-site
representative a stop work order that Mr. White had prepared and executed.  That order

CBCA 6031 6
directed WTM to cease all operations at the site at the close of business on May 31, 2017,
and to remove all equipment by the close of business on June 5, 2017.  After WTM’s on-site
representative signed the stop work order, acknowledging receipt, Mr. White took the stop
work order back and did not have a copy to leave with WTM.  Apparently through
inadvertence, WTM management was never provided a copy of the stop work order, and
WTM’s on-site representative, although having signed the document when it was presented
to him, did not sufficiently understand what was in it to report accurately to WTM
management.
On June 6, 2017, Mr. White returned to the project site to discover Mr. Woolery
continuing to perform mastication operations.   He directed Mr. Woolery to stop, issued a
notice of noncompliance with his prior stop work order, and, by email on June 7, 2017,
informed WTM that he was measuring the number of acres masticated, a number that he
would provide WTM to allow it to submit a final invoice.  WTM ended its on-site work at
that time.  Ultimately, WTM billed for and was paid for masticating 339.8 acres of the
Cypress Plantation area.
On or about August 29, 2017, Ms. Vilhauer sent a new draft contract modification to
Ms. Woolery, containing the words “[b]y mutual agreement of both parties,” that would have
eliminated the remaining 251.3 acres from the contract and reduced the contract price from
$280,181.40 to $161,065.40.  After receiving no response from WTM, she executed and
issued the modification unilaterally on September 7, 2017, terminating the unperformed
portions of the contract for convenience and making the termination retroactive to June 1,
2017.  In doing so, she reduced the number of acres covered by the contract from 591.1 to
339.8 acres, decreased the contract price to $161,065.40, and stated in the modification that
“[t]his termination is at no cost to either party.”
On October 27, 2017, WTM submitted a certified claim to the USFS contracting
officer, which had been prepared by Malyszek Consulting, seeking an additional payment of
$81,324.04, later amended to $86,674.04.  In that claim, WTM did not seek to recover
termination settlement costs arising from the September 7, 2017, convenience termination. 
Instead, it focused exclusively on the draft modification (no. 0002) that Ms. Vilhauer sent
WTM in April 2017, through which she had sought to deduct the 74.5 LOP acres from the
contract, and it also claimed that another 34.55 acres of the Cypress Plantation area were
unworkable because of tree size and slope grade.  WTM, misdescribing the April 2017 draft
modification as one that the USFS had unilaterally executed, alleged that the USFS had
changed the contract as a result of differing site conditions by partially terminating the
contract for convenience, but without accounting for the need to reallocate WTM’s fixed
costs (originally allocated based upon the contract award of 591.1 acres) across the reduced
total of 482.05 acres.  It also sought an equitable adjustment to account for delays caused by

CBCA 6031 7
the road access issue that occurred in late April 2017, as well as overhead and administrative
costs, a profit mark-up, consulting fees, and what it called in-house administrative change
order costs.
The USFS contracting officer denied WTM’s claim in its entirety by decision dated
November 9, 2017, which WTM received by certified mail on November 14, 2017.  On
February 12, 2018, WTM timely appealed the contracting officer’s decision to the Board. 
WTM subsequently elected to proceed under the Board’s small claims procedure.  After that
election was made, the parties filed cross-motions for summary judgment, but the Board
deferred consideration of them pending resolution of factual disputes at a hearing, which the
Board conducted in San Francisco, California, in November 2018.
Discussion
WTM’s Claim
I. Issues Not Properly Before The Board
Although everyone associated with this contract seems to have been acting with the
best of intentions, both parties share blame for the fact that the project was never completed. 
As for WTM, it unilaterally decided to defer its contract work to a much later date than
originally planned so that it could take on other contracts, without first asking the USFS
contracting officer whether a delay here would be acceptable.  WTM waited so long to begin
performance on this contract that its completion by the original deadline became virtually
impossible.  Although WTM believes that it was acting for the USFS’s benefit by taking on
other USFS-related contracts involving emergency circumstances, WTM never contacted Ms.
Vilhauer, her predecessor contracting officer, or Mr. White to work out an action plan in
advance.  Instead, WTM simply assumed that it would be allowed to delay the Cypress
Plantation project, without regard to the specific deadlines written into the contract. 
Ultimately, WTM overextended itself and was unable to meet this contract’s deadlines.
For its part, the USFS office responsible for administering this contract was able to
provide only periodic oversight until the last two months of the contract period, allowing
long periods of time to pass without contact with WTM.  The USFS originally told WTM
that contract performance could not begin until the contracting officer had issued the NTP,
but then over a year later complained that WTM was not working, even though it had never
issued the NTP.  As other fire emergencies and situations necessitated that the USFS
employees assigned to oversee this contract be detailed to assist in other areas, USFS
management’s absences allowed WTM to defer performance and to believe that time was not
of the essence.  Further, in deciding to enforce a hard deadline of May 31, 2017, the USFS

CBCA 6031 8
created an unfortunate situation for itself:  by refusing to allow WTM to continue working
past that date, more than 250 of the original 591.1 acres that needed to be masticated remain
untouched to this day.  The USFS terminated WTM’s work even though it recognizes that
the mastication work that WTM was performing, once it got started, was very good. 
Although the USFS contracting officer’s decision not to permit an extension was based upon
an honest belief that WTM did not deserve one, the USFS is now left with a need for
mastication services, but without any appropriation to fund them.
All that being said, the only thing for us to decide here is the extent to which WTM
is entitled to the money that it is requesting.  Nevertheless, we start by addressing things that
WTM is not requesting, that we need not decide, or that are not properly before us:
First, WTM focuses much of its appeal on the length of time that it should have been
allowed to perform this contract.  Although the contract provided for a two-year performance
period beginning on or about June 1, 2015, and ending May 31 or June 1, 2017, it also
indicated that the USFS would issue an NTP, and the USFS contracting officer, immediately
after contract award, notified WTM not to begin performance until the NTP was issued,
something that did not occur until October 11, 2016.  Yet, prior to the NTP’s issuance, the
USFS periodically pushed WTM to perform.  Despite all of the emphasis placed on this issue
during briefing and the hearing, whether the two-year contract performance should have run
from June 1, 2015, or from October 11, 2016, is ultimately irrelevant to WTM’s monetary
claim.  Although the USFS was insisting throughout the spring of 2017 that WTM complete
performance by May 31, 2017, WTM has not asserted any kind of constructive acceleration
claim that would entitle it to money for having to start late and meet an early deadline. 
Further, the USFS contracting officer has not issued a decision demanding the payment of
any liquidated damages for delayed performance, but instead terminated this contract for
convenience after the COR on May 31, 2017, issued a stop work order.  In these
circumstances, we need not resolve when contract performance actually should have begun.
Second, as detailed above, the USFS contracting officer unilaterally terminated
WTM’s contract for convenience on September 7, 2017, purportedly retroactive to June 1,
2017.  In its October 2017 claim, WTM does not mention that convenience termination, and
it seeks no compensation or termination settlement costs relating to it.  As we will discuss
below, its claim refers only to a purported partial contract termination in April 2017. 
Without a claim for settlement costs or damages arising from the September 7, 2017,
termination, we have no jurisdiction to provide any relief to which WTM might be entitled
as a result of it.  See Aurora, LLC v. Department of State, CBCA 2872, 16-1 BCA ¶ 36,198,
at 176,649 n.2 (2015) (to seek convenience termination settlement costs, the contractor must
submit a termination settlement proposal to the agency that then ripens into a claim).

CBCA 6031 9
II. Damages for the Alleged April 2017 Partial Termination
WTM’s main focus in its certified claim is the USFS’s actions in April and May 2017,
with the monies that it seeks purportedly tied to those spring 2017 actions.  It asserts that the
USFS’s action in terminating the 74.5 LOP acres in April 2017 effectively constituted a
termination for convenience of that portion of its contract.  Had the USFS terminated the
LOP area from its contract in April 2017, the convenience termination provisions within
FAR 52.212-4, the commercial items contract clause incorporated into this contract, would
likely permit WTM to claim as “reasonable charges” resulting from the termination the
increased costs to the acres not terminated necessitated by having to reallocate across a
smaller number of acres the fixed equipment, overhead, and other costs that WTM in
preparing its proposal had spread across the 591.1 acres originally awarded.  See, e.g., H.L.
Yoh Co. v. United States, 288 F.2d 493, 494-95 (Ct. Cl. 1961); Deval Corp., ASBCA 47132,
et al., 95-1 BCA ¶ 27,537, at 137,223-24; Steelcare, Inc., GSBCA 5491, 81-1 BCA ¶ 15,143,
at 74,902.  Here, though, there was no termination of the LOP acres in April 2017.  The
USFS contracting officer sent WTM a draft bilateral modification that WTM declined to
execute, and she never issued the modification unilaterally.  The premise underlying WTM’s
claim is flawed.  We cannot reallocate WTM’s fixed costs and overhead based upon a
termination that never happened.
We questioned at the hearing, and still do not understand, why WTM, in its October
2017 claim, focused on an April 2017 termination that did not happen instead of the
September 7, 2017, termination for convenience that the USFS contracting officer actually
issued.  Because WTM’s October 2017 claim does not encompass the September 2017
unilateral termination for convenience, we cannot entertain it here.  During the hearing of this
appeal, the USFS suggested that it is now too late for WTM to submit a settlement proposal
or claim seeking such damages because more than a year has passed since the September
2017 convenience termination.2  For the benefit of the parties, we note that, although the
FAR’s standard termination for convenience clause requires the contractor to submit its
2 The USFS has also suggested that the termination for convenience is of no realistic
effect because the contract, by its written terms, ended on May 31, 2017, leaving nothing for
the contracting officer to terminate.  Yet, the mastication work that the contract envisioned
was far from complete by that date.  We disagree with the USFS’s view that, in the type of
circumstances here, a contract simply “ends” if the contractor has not completed its work by
the contract completion date, without any need for the Government to terminate the
unperformed part of the contract.  See, e.g., Environmental Data Consultants, Inc. v. General
Services Administration, GSBCA 12951, et al., 97-2 BCA ¶ 29,208, at 145,372; M.H. Colvin
& Co., GSBCA 5209, 79-2 BCA ¶ 13,981, at 68,614.

CBCA 6031 10
settlement proposal “no later than 1 year from the effective date of termination, unless
extended in writing by the Contracting Officer,” 48 CFR 52.249-2(e), WTM’s contract
contains the commercial items termination for convenience clause at FAR 52.212-4(l), not
the standard clause.  The termination for convenience provision in the commercial items
clause contains no one-year time limit.  See Paul J. Seidman & David J. Seidman,
Maximizing Termination for Convenience Settlements/Edition II–Part I, 08-3 Briefing Papers
10 (Feb. 2008) (commercial items clause “does not set a time limit on the submission of a
termination settlement proposal after a termination for convenience”).  Accordingly, it
appears that WTM can still pursue a remedy for any increased costs resulting from the
September 2017 convenience termination.  It simply cannot do it here and now.
III. Other Cost Claims
In addition to its concern about the “termination” of the 74.5 LOP acres, WTM also
complained in its certified claim about another 34.55 acres within the 591.1-acre Cypress
Plantation area that it asserts were unworkable because of tree size and slope grade.  It had
included those 34.55 acres in its allocation of fixed costs and overhead in preparing its
proposal, and it believes that, because they could not actually be worked, there was a
constructive change to the contract or a differing site condition.  Yet, paragraph 29 of the
solicitation required WTM to conduct a site visit prior to submitting its bid to identify
conditions that might affect its work.  “It is well-settled that a contractor is charged with
knowledge of the conditions that a pre-bid site visit would have revealed.”  H.B. Mac, Inc.
v. United States, 153 F.3d 1338, 1346 (Fed. Cir. 1998).  The defects that WTM alleges
should have been recognizable during its site visit.  WTM cannot recover for those lost acres.
WTM has questioned the accuracy of Mr. White’s measurements of the acreage that
it actually masticated, suggesting that it masticated more acreage than his actual
measurements show and that WTM would be entitled to an additional payment of $474 for
each acre not accounted for.  WTM, however, acknowledges that it conducted no
independent measurements of the number of completed acres.  We have no evidentiary basis
for questioning the accuracy of Mr. White’s measurements or for awarding WTM any
additional payments for acres masticated beyond what the USFS has already paid.
To the extent that WTM alleges that abnormally bad winter weather delayed its work,
the evidence in the record is insufficient to establish that winter conditions at the Cypress
Plantation project area were abnormal during the winter of 2016.
WTM seeks to recover more than $33,000 in consulting fees for Malyszek Consulting. 
Most of those fees relate to that firm’s preparation of the certified claim that WTM submitted
in October 2017 and for services rendered since that time in prosecuting the claim before the

CBCA 6031 11
USFS and the Board.  Claim prosecution costs are not recoverable against the Government. 
Bill Strong Enterprises, Inc. v. Shannon, 49 F.3d 1541, 1550 (Fed. Cir. 1995) (citing FAR
31.205-33), overruled in part on other grounds by Reflectone, Inc. v. Dalton, 60 F.3d 1572,
1579 & n.10 (Fed. Cir. 1995) (en banc).  To the extent that the firm was providing consulting
services prior to or outside the context of claim prosecution, the USFS did not cause any type
of change to the contract that necessitated such costs.  Accordingly, WTM cannot recover
them as something beyond or in addition to its regular contract price.
WTM also challenges the accuracy of the interim report about WTM that the USFS
contracting officer placed in the Contractor Performance Assessment Reporting System
(CPARS).  That issue was not a part of WTM’s October 27, 2017, claim, and we therefore
have no jurisdiction to entertain it.
The only part of WTM’s claim upon which we grant relief relates to its complaint
about blocked access to a road in late April and early May 2017.  We find it more likely than
not, based upon a preponderance of the evidence, that WTM had been relying on a service
road for access to the portion of the project area that it was working, that the area was
accidentally blocked, and that WTM lost thirty-two hours of work time having to take an
alternative route to that project area.  Although the USFS disputes that there was even a
service road where WTM says there was one, the record contains significant evidence
showing that Mr. Woolery was complaining about blocked access during this period of time,
and the COR testified that he never actually went to the disputed area to check.  WTM seeks
to recover hourly salary costs that it paid for those thirty-two hours and the value of its idle
equipment.  Although it owned the equipment on site, WTM has submitted invoices from
other companies to create a rental value of $250.52 for each hour of its idle on-site
equipment.  Boards have permitted this type of evidence to establish idle equipment
damages, but typically cut the rental rate in half (to account for lack of wear and tear during
the idle period) in a form of jury verdict award.  See Cyrus Contracting, Inc., IBCA 3233,
98-2 BCA ¶ 30,036, at 148,620-22 (discussing cases).  Here, half of WTM’s thirty-two hours
of equipment idleness results in an award of $4008.32.
The Government’s Request for Reprocurement Costs
In its answer to WTM’s complaint, the USFS requested that it be allowed to set off
any damages owed to WTM by damages that the USFS suffered as a result of WTM’s failure
to complete all of the required contract work, other than the 74.5 acres subject to the seasonal
LOP, by May 31, 2017.  The requested costs include administrative costs in terminating the
contract, deobligating and reobligating funds, administering a new procurement process for
substitute performance (work that has not yet happened), administering substitute
performance, and covering higher costs that may result from having to hire substitute

CBCA 6031 12
performance.  Essentially, the USFS is asking us to allow it to recover reprocurement costs
or, at the very least, to offset any damages awarded to WTM.
We reject the USFS’s request for two reasons.  First, we lack jurisdiction to entertain
any such request because the contracting officer has never issued a final decision seeking
such monies, as required by the CDA.  Sharman Co. v. United States, 2 F.3d 1564, 1568
(Fed. Cir. 1993); 41 U.S.C. § 7103(a)(4) (2012).  That the USFS is seeking recovery through
setoff from WTM’s award rather than through an affirmative outlay of cash does not alter
the nature of the request:  it remains a demand for money.  Union Chemical Co., GSBCA
7392, 85-3 BCA ¶ 18,489, at 92,860; see Volmar Construction, Inc. v. United States, 32 Fed.
Cl. 746, 752 (1995) (government request for setoff is a government claim (citing Placeway
Construction Corp. v. United States, 929 F.2d 903, 906 (Fed. Cir. 1990))).  Second, even if
we possessed jurisdiction to entertain the request, it would fail because the USFS terminated
this contract for convenience.  In appropriate circumstances, the Government may recover
excess reprocurement or replacement costs, a form of expectation damages, from a contractor
following a termination for default.  MLJ Brookside, LLC v. General Services
Administration, CBCA 3041, 15-1 BCA ¶ 35,935, at 175,626.  Here, though, although the
USFS contracting officer complained about WTM’s performance, she elected to terminate
the contract for convenience.  Excess reprocurement costs are not recoverable following a
convenience termination.  Gary Aircraft Corp., ASBCA 21055, 86-2 BCA ¶ 18,750, at
94,423.
Decision
For the foregoing reasons, WTM’s appeal is GRANTED IN PART.  WTM may
recover $4008.32, plus interest under the CDA running from October 27, 2017, the date that
the USFS contracting officer received WTM’s certified claim.  WTM’s claim is otherwise 
denied.  The USFS’s request for an excess reprocurement costs offset is dismissed for lack
of jurisdiction.
    Harold D. Lester, Jr.      
HAROLD D. LESTER, JR. 
Board Judge