DENIED: January 24, 2007 
CBCA 123 
QUALITY FORESTS, INC., 
Appellant, 
v. 
DEPARTMENT OF AGRICULTURE, 
Respondent. 
Cynthia  Malyszek of  Malyszek &  Malyszek, Los Angeles, CA, counsel for Appellant. 
Sarah  M. Birkeland, Office of  the General Counsel,  Department of Agriculture, San 
Francisco, CA, counsel for Respondent. 
Before Board Judges DANIELS  (Chairman), VERGILIO , and POLLACK . 
VERGILIO , Board Judge. 
By letter dated June 24, 2004, Quality  Fore sts, Inc., of Coeur d’Alene, Idaho 
(contractor),  filed a notice of ap peal regarding its contract, 53-91Z9-3-1-E06, with the 
Department  of Agriculture, Forest Service (Governmen t).  Th e contract required hand 
grubbing  of vegetation around conifer seedlings in the Sco tt River Ranger District of the 
Klamath  National Forest, in California.  The contractor had submit ted to the contracting 
officer  a certified claim to recov er $135,727.43, said to encompass costs based upon 
differing site conditions and work performed at the direction of the  Government  beyond that 
identified  in the contract.  Concluding that neith er a type I nor a type II differing site 
condition existed, the contracting officer denied the diff ering site condit ion claim.  Regarding 
the claim for additional work, the contracting officer  noted that the parties had agreed that 
the contractor would  remove material to outside the grubbed  radius.  The contracting officer 

2 CBCA 123 
accepted  the contractor’s proposed price of $66 per  acre for each  of the 100 acres on which 
the additional work was performed.  The contracting officer approved payment in the  amount 
of $6600 as full compensation relating to the added work c laimed by the contractor, and 
issued  a unilateral contract modification increasing the contract price by $6600 as well as 
interest on that amount.  This appeal ensued. 
Pursuan t to the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613, as amended 
(CDA),  this Board has jurisdiction over the timely-filed appeal.  The parties elected to submit 
the matter for resolution on the written record (without a hea ring on th e merits but with 
briefs), followi ng the sub mission of the appeal file, complaint, and answer; telephone 
conferences with the presiding judge; and the development of the record. 
Under  the contract, the contractor was to grub areas around trees.  T he amo unt of 
vegetation  that would  be encountered and the level of effort to be expended were not  dictated 
in the contract under which c ompe nsation was determined at fixed unit prices per acre.  A 
prepondera nce  of the evidence does not demonstrate that the encountered conditions are 
other  than what a reasonable contractor should have anticipated.   The  contractor fails in its 
attempt  to establish a differing  site condition based upon the seeds  in the soil, precipitation 
prior  to proposal submission and contract performance, and var iations in the vegetation when 
comparing what existed  at the time of a fall survey to what existed during performance the 
following  spring.  Finding no differing site condition, the Board denies this aspect o f th e 
claim. 
As originally signed, the contract permitted the contractor to  leave grubbed material 
in place around the tree.  At the request  of the  Government, for certain areas, the contractor 
mov ed the material to outside the grubbed radius.  The contracting officer amended the 
contrac t to provide for payment at the contractor-requested unit price for the contracto r-
requested  number of units.  The re cord does not demonstrate that the contractor remains 
uncompensa ted for the additional work.  Accordingly, the Board denies this aspect of the 
claim. 
Findings of Fact 
The Solicitation and Contract 
1. The Government engaged in a negotiated procurem ent  to obtain manual 
grubbing  of vegetation in three-foot circles around conifer seedli ngs in th e Scott River 
Ranger  District in the Klamath National Forest in California.  Appeal File, Exhibit 3 at 139­
40 (all exhibits are in the appeal file).  The technical requirements include the following: 

3CBCA 123 
a.	 Hand grubbing  shall be required  within a  36-inch radius centered around each
 
live,  planted or natural tree at the spacing interval pres cribed on  the Unit
 
Information Sheet (refer to Part III, section J).  SEE ATTACHED UNIT
 
INFORMATION SHEET FOR STAND DESCRIPTIONS.
 b.	 All live vegetation except  conifers shall be  completely severed  below the root
 
collar  within the 36-inch radius.  All conifers on specif ied spa cing shall be
 
grubbed.   Spacing may vary up to 25 percent whenever doing so  allows for the
 
selection  of a better quality crop tree.  Variances shall not change the number
 
of trees per acre to be grubbed.  Conifers over 30 inche s in height shall not
 
require grubbing.
 c.	 Slash  may be left within the 36-inch radius of  any existing conifer as long as
 
all forbs, grasses,  brush, hardwoods, roots and vines two  inches in diameter or
 
less are pulled or grubbed at one half to one inch below the ground.
 d.	 The  area one inch i n radius from the bole of  any coni fer seedling shall no t
 
require grubbing or removal of vegetation.
 
Exhibit 2 at 84-85. 
2. As initially issued, the “unit  information  sheet” (referenced in paragraph a. in 
the above quotation) in section J was a chart identifying two  stands (each of five  acres) under 
one line item, and seventeen  stands of various acreage totaling 366 acres under a second line 
item.   For e ach stand,  the sheet indicates the acreage, the year last planted, the spacing 
interval, current tpa (trees per  acre), tpa  after interplant, and if there was or was not a need 
to interplant.  Exhibit 2 at  103.  A solicitation amendment replaced the unit  information sheet 
with  a page captioned “ten[t]ative grub 2003.”  This exp anded chart contains the same 
categories  of information as in  the original chart (with two variations  in entries, each under 
current  tpa, for two stands), as well as four additiona l catego ries of information for each 
stand: Hardwood  (with a percentage and an average  height), Brush (with a percentage and 
an average height), Grass/forbs Component (with  a percentage), and Comments (identifying, 
if applicable, the  time required to walk to the given stand).  Exhibit  2 at 77, 102.  The parties 
acknowledge  that this data reflects documented field conditions observed during a 
reforestation stand examination in  the fall of 2002.  Exhibit 1  at 3, 6; Contractor’s Brief at 
3 (¶ 9). 
3. The solicitation and contract contain the  Si te Investigation and Conditions 
Affecting the Work (APR 1984) clause, 48 CFR 52.236-3 (1984): 

  
4 CBCA 123 
(a) The Contractor  acknowledges  that it has taken steps reasonably 
necessar y to asc ertain the nature and location of the work, and that it has 
investigated and satisfied itself as to the general and lo cal condit ions which 
can affect  the work or  its cost, including but not limited to (1) conditions 
bearing upon transportation,  disposal, handling, and storage of materials;  (2) 
the availability of labor, water, electric power,  and roads; (3) uncertainties of 
weathe r, river stages, tides, or similar physical conditions at the site; (4) the 
conformation and conditions of the ground; and (5) the character  of equipment 
and facilities needed preliminary to and during work performance.  The 
Contractor  also ac knowl edges that it has satisfied itself as to the character, 
quality,  and quantity of surface and subsurface materials or obstacles  to b e 
encountered  insofa r as this information is reasonably ascertainable from an 
inspection  of the site, including all exploratory work done by the  Government, 
as well as from the drawings and specif ications made a part of this contract. 
Any failure of the Contractor to take the actions described and acknowledged 
in this paragraph will not relieve the Contractor from responsibility for 
estimating  properly the diffic ulty and cost of successfully performing the 
work,  or for proceeding to successfully perform the work without additional 
expense to the Government. 
(b) The Government assumes  no responsibility for  any conclusions 
or interpretations made by the Contractor bas ed on  the information made 
available  by the Government.  Nor does  the Government  assume responsibility 
for any understanding reached or representation made  concerning conditions 
which  can affect  the work  by any of its officers or agents before the execution 
of this contract, unless that understanding or representation  is expressly stated 
in this contract. 
Exhibit 2 at 97. 
4. The solicitation and contract contain the Differing Site Condition s (APR 1984) 
clause, 48 CFR 52.236-2.  The clause states, in pertinent part: 
(a) The Contractor shall promptly, and before the conditio ns a re 
disturbed, give a written notice to the Contracting Officer of -­
(1) Subsurface  or latent  physical conditions  at the site which 
differ materially from those indicated in this contract; or 

   
 
 
 
5 CBCA 123 
(2) Unknown  physical c onditions at the site, of an unusual 
nature, which differ materially from those ordinarily encounte red and generall y 
recognized as inhering in work of the character provided for in the contract. 
(b) The Contracting Officer shall  in vestigate the site conditions 
promptly  after receiv ing the notice.  If the conditions do materially so differ 
and caus e an increase or decrease in the Contractor’s cost of, or the time 
required for, performing  any part of the work  under this contract, whether or 
not cha nged as a result of the conditions, an equitable adjustment shall be 
made under this clause and the contract modified in writing accordingly. 
Exhibit 2 at 97. 
5. The solicitation and contract address  crew organization and a daily production 
rate:  “Contractor shall provide one non-workin g foreman and an adequate workforce to 
ensure  a daily production rate of 7.5 acres per day.”  Exhibit 2 at 90.  The solicitation and 
contract do not address the amount of vegetation that  will exist to be grubbed  at the time of 
performanc e or project a rate of performance for any individuals who may perform the 
grubbing.  Upon inquiry prior to the submission of its offer, the contractor’s  president  was 
told by the contracting officer’s representative that the past progress rate had been .75 acres 
per person per day.   Beyond being an oral statement not  incorporated into the solicitation, the 
record  does not indicate the vegetation existing when that progress rate was achie ved or 
during what season or year, or under what requirements.  Exhibit 1 at 2. 
6. The contractor did not utilize the tentative  grub schedule in  section J, Finding 
2, in formulating its offer and prices.  The contractor relied upo n the ob servations and 
estimates  its foreman made after a site visit  in mid-March 2003.  The contractor anticipated 
very little grass to be grubbed,  projecting a rate of performance  of 1.25 acres per person per 
day.  Exhibits 1 at 28, 3 at 216 (In r eservin g its claim on a contract release, the contractor 
states,  “In bidding the job, I went by visual inspectio n of the jo b site.”), 4 at 283.  The 
contractor offered the lowest prices per acre.  Exhibit 3 at 188. 
7. Consistent  with the solicitation, the Government awarded  a contract with firm, 
fixed  pricing, under which it would place task orders to obtain services.  Exhibit 2 at 91 
(¶ G.1),  125 (¶  L.2).  That is, on April 2, 2003, the Government awarded a contract based 
upon the contractor’s offer dated March 25, 2003.  With an  effective date of April 4, 2003, 
the Government  placed the underlying order for a total of 408 acres to be grubbed,  at a total 
cost  of $67,470, with 54.4 days  to perform.  The contractor attended  a pre-work meeting on 
April  7, 2003.  Substantive work began on A pril 8, 2003.  E xhibit 2 at 78, 129-30, 184; 
Exhibit 4 at 251-52. 

6 CBCA 123 
Performance 
8. By letter dated April 15, 2003, the contractor informed the Government: 
It is our intention to cover 12 to 15 acres per day, f or 5 days a  week. 
We know that we have fallen behind on schedule, and we are trying to do 
everything  possible to get back  on track.   We know that we will.  Our goal is 
to finish 60 to 75 acres per wee k.  Unfortunately, unexpected things have 
happ ened  since w e bid the contract, such as the grass coming up so quickly. 
We apologize for any inconvenience this has caused, but know that we are 
trying our best to remedy the situation. 
Exhibit 3 at 206. 
9. During April and  May 2003, the contractor and the Government discussed the 
slow  rate of performance and possible  causes. The contractor was encountering more grass 
than it had  anticipated.  In part, the contractor  was clearing larger than required areas around 
the trees (scalp s o f greater than 3-foot diameters) and more trees per unit than required, 
thereby  exceeding the contract requirements.  Other  potential factors in reducing the average 
rate of performance were the individuals (tree planters) utilized to perform  grubbing and the 
tools  that they were using, as well as periodic rework.  Exhibit  3 at 206-07, 210, 222; Exhibit 
4 at 252-53, 256, 264-65, 267, 270, 274-75. 
10. On April 30, 2003, the Government and th e contractor discussed a potential 
contract  modification under the changes clause “due to the increased grass component of 
around  20% and what [the contrac tor] would want if [the Government] required [the 
contractor]  to flip the severed grass clumps over within the scalps.”  Exhibit 4 at 268 
(contracting officer’s representative’s contract daily diary). 
11. On June  9, 2003, the contracting officer’s representative and the contract or 
reviewed  how each came up with the percentage of vegetation coverage in the handgrubbing 
stands.   The cont racting officer’s representative was left with the impression that the 
contractor  determined that if there was vegetation within an area and the ground had to be 
scraped,  the area was 100% vegetation covered.  Also, during that meeting, according to the 
contracting  officer’s representative, the contractor “agreed that it would take more t ime  to 
remove  thick vegetation verses a  lighter  cover but that double the vegetation would not take 
double  the time to  grub.”  Exhi bit 4 at 281.  The contractor has placed into the record no 
evidence  to contradict  these statements, or regarding its basis for calculating percentages of 
vegetation coverage or associating the amount of work to the vegetation coverage. 

7 CBCA 123 
12. On June 10, 2003, the contracting offic er’s representative met with the 
contractor.   As of that date, grubbing had been completed on 382 acres of the 408 acres. 
During  that meeting, the  contracting  officer’s representative agreed with the contractor that 
the “[o]ver all total deviation including stands that remained the same is plus 28% cover.” 
That  is, the stated percentage of deviation is sai d t o represent the combination of 
grass/forbs/brush/hardwoods  above the sum of percentages as observed in the fall 
examination and  noted in section J of the solicitation and contract  (Finding 2).  Exhibit 4 at 
282-84  (contracting officer’s representative’s contract daily diary).  With the contra ctor 
aware  that the Board makes de novo  factual determinations based upon the developed record, 
and taking as a given that the actual percentages of total vegetation increased by 28% 
between  the fall  forest examination and at some time(s) during performance,  the contractor 
does  not attempt to explain in the record how the increase either represents  a deviation from 
what  a reasonable contractor would expect or translates to additional effort by  the contractor. 
13. On June 13, 2003, the contractor completed performance.  Exhibit 3 at 215. 
The Disputes 
14. The contractor provided the contra cting of ficer with a certified claim dated 
September  10, 2003, which was received on September 15, 2003.  The contractor seeks to 
recover  $135,727.43, said to encompass costs based upon differing  site conditions  and work 
performed  at the direction of  the Government beyond that identified in the contract.  Exhibit 
1 at 9-75.  The contra ctor asserts that the quantity of vegetation encountered constitutes a 
differing site condition.  Exhibit  1 at 16.  The contractor also  maintains that directions from 
the contracting officer’s representative to completely clean scalps added work under the 
contract,  which permitted severed vegetation to re main with in the scalp.  Exhibit 1 at 17. 
The contractor seeks to recover all of its alleged costs incurred in  performing the  contract and 
pursuing  the claim.  With this cost- reimbursement/total cost approach, the contractor does 
not  dif ferentiate between costs incurred relating to the alleged differing site condition an d 
those  related to the added work; it treats as compensable all  costs  said to be incurred related 
to the contract with no recognition  of the fixed-price aspect of the contract.  Exhibit 1  at 18­
19. 
15. The contracting  officer issued a decision dated March  23, 2004.  Concluding 
that neither a type I n or a type II differing site condition existed, the contracting officer 
denied  the differing site conditio n claim.  Regarding the claim for additional work, the 
contracting officer concluded that the parties had  agreed that the contractor would  remove 
material  to outside the grubbed radius.  The contracting officer  accepted the contractor’s 
proposed  price of $66 per acre for each of the 100  acres.  The contracting  officer approved 

 
8 CBCA 123 
payment  in the amount of $6600 as full compensation relating to  the added work claimed by 
the contractor.  Exhibit 1 at 1, 6-7. 
16. Unilateral  contract modification one, with an effective date  of March 23, 2004, 
specifies:  “In accordance with FAR 33.211(h), $6,600.00 has been determined payable under 
the Contracting Officer’s Final Decision date d March 23, 2004.  Such payment shall be 
without  prejudice to th e right s of either party.  Interest on this payment will be computed 
from  September 15, 2003.”  Exhibit 2 at 131.  The evidentiary  record  does not demonstrate 
that this amount remains unpaid. 
17. Within  ninety days after receipt of the contracting officer’s decision, the 
contractor  filed a notice of appeal.  After  the submission of the appeal file,  complaint, and 
answer,  the parties developed the record, opting to make a submission on the  record without 
a hearing.  The evidentiary record closed.  Briefs were  submitted.   Each party was given the 
opportunity  to submit a supplemental  brief, given the creation of this Board,  to be received 
no later than January 16, 2007.  Neither party filed such a brief. 
Discussion 
Given  the shifting nature of the facts proposed and the legal arguments raised by  the 
contractor,  the Board first addresses the contract and relief  available thereunder, in light of 
the above factual findings, and then the remaining allegations of the contractor. 
Type I Differing Site Condition 
Case  law dictates that in order to establish entitlement to an equitable  adjustment by 
reason  of a type I differing site condition, “the contractor must prove, by a preponderance of 
the evidence, that the conditions indicated in the contract differ mater ially from those it 
encounters  during performance”  and that “[a] contractor cannot be eligible for  an equitable 
adjustment  for a Type I differing site condition u nless th e contract indicated what that 
condition would be.”  H.B. Mac, Inc.  v. United States , 153 F.3d 1338, 1345 (Fed. Cir. 1998). 
The contract required the contractor t o grub  vegetation within a given radius around 
particular  tre es.  The contract does not indicate the vegetation that will be encountered or 
express  a level of effort required by the workers.  The “tentative grub chart” reflects 
conditions  recorded in  the fall preceding proposal submission and performance.  The  record 
does  not support t he conclusion that the fall conditions would prevail in the months of 
performance  (April  thr ough June).  Although the solicitation and contract establish a 
minimum daily production rate,  Finding 5, that rate is  independent of the number of people 
employed,  and, therefore, does not indicate th e amoun t of vegetation that may be encountered 
or provide assurances that any level of effort will be sufficient for performance.   T he past 

  
    
9 CBCA 123 
production r ate revealed by the Government was not part of the contract.  Neither the 
produ ction  ra te nor the past performance rate indicate the site conditions that will be 
encountered. 
Because  the contract  does not indicate the grubbing conditions or  degree of vegetative 
growth  that will exist at the time of performance, the contractor has not established the basis 
for a type I differing site condition. 
Type II Differing Site Condition 
The contractor bears  the burden of establishing by a preponderance  of the evidence 
that “the unknown physical condition must be one that  could not be reasonably anticipated 
by the contractor from his study  of the contract documents, his  inspection of the site, and his 
general  experience[,] if any, as a contractor in the area.” Randa/Madison Joint Venture III 
v. Dahlberg , 239 F.3d 1264,  1276 (Fed. Cir. 2001) (quoting Perini Corp. v. United  States , 
381 F.2d 403, 410 (Ct. Cl. 1967)). 
Factually,  the record does not support relief for the contractor.  Because the  contractor 
introduced  no pertinent evidence, the record does  not demonstrate  that the actual vegetation 
and conditions differed  from those ordinarily encountered in the spring in the local area.  The 
variations  from the contractor’s expectations and conditions in the fall do not demonstrate 
the unusual nature of the actual conditions.   The contractor’s references to  precipitation (dry 
then  wet conditions)  preceding performance  as causes of the vegetative growth do not assist 
the contractor’s cause, as that information (general clima ctic information available to offerors 
prior  to proposal submission) suggests that the  contractor should have anticipated the  growth 
of vegetation that occurred.  Because the record does not demonstrate  that  the encountered 
conditions  were of an unusual  nature or should not have been anticipated, the contractor does 
not prevail. 
In an initial brief (May 3,  2005), the contractor states that  the first ten months of 2002 
were  very dry months, such that the reforestation stand examination was made during a time 
of severe  drought.  Further, the contractor states that significant rain  occurred in the months 
of November 2002 through March 2003, inclusive.  It contends that  the unusual  amount of 
rainfall  after two years of drought constituted changed conditions  that could not be foreseen 
and affected the  vegetative growth and work  under the contract.  Contractor’s Initial Brief 
at 3-4.  The supporting information demonstrates several months of below average rainfall, 
but does not demonstrate that yearly or particul ar de viations were out of the ordinary. 
Exhibit  6 at 293-95.  Moreover, one need not “foresee” the rainfall that has preceded 
proposal  submission.  Th e contractor does not assert (or offer support for the proposition) 
that it was unaware of these local conditions that occurred prior to  its proposal submission, 

 
10 CBCA 123 
or demonstrate th at for it not  to consider such conditions that would directly affect the 
vegetative  growth was re asonable .  The Site Investigation and Conditions Affecting the 
Work  clause (Finding 3) places the risks upon the  contractor that the contractor  now attempts 
to shift to the Government.  Although the contractor makes reference  to a Federal Register 
notice  of October 3, 2002, in the record, Exhibit 6 at 300, 300A , and a Fo rest Service 
issuance,  Exhibit 6 at 301, 301A, regarding the invasion of  noxious  weeds in the given forest, 
the record does not demonstrate  either that the referenced weeds were  other than reasonably 
anticipated vegetative growth to be removed or that the contractor was unawar e of these 
issuances at the time it submitted its proposal. 
In its subsequent brief (Feb. 28, 2006 ), th e contractor identifies the nature of the 
differing site condition it claims existed: 
Generally,  the differing physical condition QF  [the contractor] 
complains  of consists of the number and/or nature of  the seeds in the ground. 
This  changed condition manifested  itself as an unusual and unexpected growth 
of vegetation.  QF does not purport to know how or why the  number of seeds 
or the rate of germination caus ed s o much vegetation to grow.  Speculations 
as to previous w et a nd dry seasons may help answer the question of why, 
however,  the analysis does not require an answer as to why so  much vegetation 
grew  no more than a contractor would have to explain  what  geologic process 
caused  a layer of clay to exist unexpectedly at a co nstruction site.  QF will 
show  through evidence o f incre ased efforts, increased costs, previous 
experiences,  and other eviden ce, that an unusual and unexpected amount of 
vegetation covered the work sites. 
Contractor’s  Brief at 7.  In this s tatement of the differing site condition, the contractor 
focuses  upon the number and nature of the seeds in the ground.  However, nothing in the 
record  addresses either the number or nature of the  seeds in the ground or any  expectations 
relating  thereto.  The  true concer n to the contractor was the vegetation that needed to be 
grubbed  at the time of performance.  As determined  above, the  record does not demonstrate 
that the contract or was faced with unusual conditions.  One cannot extrapolate from the 
existing  record that the contractor’s costs an d efforts  were increased by a condition that it 
should not have anticipated. 
Finally,  p erh aps because the contractor seeks reimbursement for all of its costs 
incurred, the record  does not show that  the claimed “excess costs” were solely attributable 
to the allegedly materially different conditions.  The contractor seeks to recover more than 
the original contract price for its alleged differing site condition.   Even  assuming additional 
vegetation,  the record fails to demonstrate that  the contractor’s reasonable  costs would grow 

______________________________ 
____________________________ ____________________________ 
11 CBCA 123 
by such a factor.   Without support, there is no basis to allocate or attribute costs to the alleged 
differing site condition.  Thus, apart from  its failure on entitlement, the contractor has failed 
to meet its burden of proof on the quantum aspect of its claim. 
Added Work 
The contracto r pursues relief for the removal of grubbed material from the scalped 
radius  around each tree.  The contracting officer  granted this aspect of the contractor’s claim 
and issued a  contract modification.  The  record does not demonstrate that the contractor is 
entitled  to any additional money for the added work or that it remains u npaid under t he 
contract modification.  Finding 16.  The Board denies this aspect of the claim. 
Decision 
The Board DENIES  the appeal. 
JOSEPH A. VERGILIO 
Board Judge 
We concur: 
STEPHEN M. DANIELS HOWARD A. POLLACK 
Board Judge Board Judge