MOTION TO DISMISS DENIED: September 6, 2013
CBCA 3464
TRICON TIMBER, LLC,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
Julie A. Weis of Haglund Kelley Jones & Wilder LLP, Portland, OR, counsel for
Appellant.
Jennifer T. Newbold, Office of the General Counsel, Department of Agriculture,
Missoula, MT, counsel for Respondent.
Before Board Judges DANIELS (Chairman), HYATT, and DRUMMOND.
DANIELS, Board Judge.
The Department of Agriculture (USDA), respondent, moves the Board to dismiss this
case, or alternatively to stay proceedings pending receipt of a contractor claim.  We deny the
motion.
Background
USDA’s Forest Service (FS) entered into a contract with Tricon Timber, LLC (Tricon)
which included reconstruction of a road in the Lolo National Forest in Montana.  As part of
this work, Tricon was required to cut and remove trees along the route.  According to Tricon,


CBCA 3464 2
it was required to cut and remove many more trees than the fifty estimated by the FS.  Tricon
maintains that it is entitled to be paid $35,905 more than the FS has paid because it cut and
removed the additional trees.
In November 2012, the FS proposed a contract modification under which Tricon
would have received $1274 for what the contractor believed to have been extra, required
work.  Tricon refused to accept the proposed modification.  Later in November, a FS
contracting officer told the contractor that “[i]t appears that undesignated timber may have
been cut outside of contract specifications for brushing” on the road.  
In December, the contracting officer wrote that he had “concluded that the Contractor
did cut undesignated timber.”  Tricon objected and, with detailed explanation, “ask[ed] that
[the contracting officer] pay us for that work at the contract rate in the schedule of items for
Removal of Individual Trees.”  In February 2013, the contracting officer responded:
A Forest Service Law Enforcement investigation has concluded that the
Contractor cut undesignated timber along Road 17444, in violation of federal
regulations.  Consequently, the Contractor’s request for an equitable
adjustment to the contract price allowing payment for these actions is not being
considered further.
On May 8, 2013, the FS reported that it had “presented the facts of the investigation
to the United States Attorney’s Office for review of criminal prosecution.  The case was
declined.  The incident has been referred back to Forest Service Contract Administrators for
potential administrative remedies.”
On May 21, Tricon sent to the contracting officer a “letter . . . to submit our invoice
for payment for the actual quantity of individual trees that were removed under the terms of
the contract.”  The letter explained Tricon’s position on the matter and asked the contracting
officer to process payment in the amount of $35,905.
On May 23, the contracting officer responded.  His letter reads in full:
Invoice No. 7 Roads, dated May 22, 2013 is rejected.  The Government will
not process this invoice for payment.
The invoice is being rejected for several reasons.  Included among the reasons
is the fact that the Contractor cut undesignated timber, and no contract
modification was ever issued increasing the quantity of this item on the
contract.

CBCA 3464 3
Discussion
The Board “has jurisdiction to decide any appeal from a decision of a contracting
officer of an executive agency (other than [specified agencies, of which the FS is not one])
relative to a contract made by that agency.”  41 U.S.C. § 7105(e)(1)(B); see also Alliant
Techsystems, Inc. v. United States, 178 F.3d 1260, 1264 (Fed. Cir. 1999); Sharman Co. v.
United States, 2 F.3d 1564, 1568-69 (Fed. Cir. 1993).  Contracting officer decisions are
issued on claims.  41 U.S.C. § 7103.  A “claim” is “a written demand or written assertion by
one of the contracting parties seeking, as a matter of right, the payment of money in a sum
certain, the adjustment or interpretation of contract terms, or other relief arising under or
relating to the contract.”  Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (en
banc) (adopting definition in the Federal Acquisition Regulation).
The Court of Appeals for the Federal Circuit has held that a routine request for
payment, such as an invoice for regular payment under a contract, is not a claim.  Reflectone. 
The FS seizes on this conclusion to argue that Tricon’s May 21 communication to the
contracting officer, which used the term “invoice,” is not a claim.  Further, the FS suggests,
the contracting officer’s response was not a “decision” because it did not advise Tricon of
its appeal rights.  According to the FS, the response merely established the existence of a
dispute, entitling the contractor to submit a claim.
We find all of these arguments misguided.  A request for payment “when unforeseen
or unintended circumstances . . . cause an increase in contract performance costs” is
“anything but a ‘routine request for payment.’”  Reflectone, 60 F.3d at 1577.  Tricon’s
communication, which was based on an alleged FS requirement to cut and remove trees
vastly in excess of the number contemplated in the contract, was such a non-routine request. 
Although the communication was termed an “invoice,” it was clearly submitted to bring to
a formal close a dispute which had been established six months earlier.  The written
communication was a “clear and unequivocal statement that [gave] the contracting officer
adequate notice of the basis and amount of the claim.”  Contract Cleaning Maintenance, Inc.
v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987).  Thus, it was a claim.
The fact that the contracting officer’s response did not advise Tricon of its appeal
rights is immaterial.  A response to a claim may be a contracting officer’s decision even if
it does not include such a statement or label itself a final decision.  Alliant Techsystems, 178
F.3d at 1267 (citing Placeway Construction Corp. v. United States, 920 F.2d 903, 907 (Fed.
Cir. 1990)).  The letter the FS contracting officer sent to Tricon was a decision which brought
administrative finality to the dispute and was appealable to the Board.

CBCA 3464 4
Decision
The MOTION TO DISMISS this case, or alternatively to stay proceedings pending
receipt of a contractor claim, is DENIED.  The FS shall file its answer to Tricon’s complaint
within ten calendar days of the date of this decision.
_________________________
STEPHEN M. DANIELS
Board Judge
We concur:
_________________________ _________________________
CATHERINE B. HYATT JEROME M. DRUMMOND
Board Judge Board Judge