DENIED:  June 2, 2009 
CBCA 895 
COCHRAN LUMBER COMPANY, INC., 
Appellant, 
v. 
DEPARTMENT OF AGRICULTURE, 
Respondent. 
Keith L. Baker of Barton, Baker, McMahon & Tolle LLP, McLean, VA, counsel for 
Appellant. 
Ronald Mulach, Office of the General Counsel, Department of Agriculture, 
Milwaukee, WI, counsel for Respondent. 
Before Board Judges VERGILIO , McCANN , and SHERIDAN . 
Opinion for the Board by Board Judge SHERIDAN .  Board Judge McCANN  concurs. 
SHERIDAN , Board Judge. 
This appeal arises out of a timber sale contract between the Department of 
Agriculture, Forest Service (FS) and the purchaser, Cochran Lumber Company, Inc. 
(Cochran).  Cochran purchased timber under the Silver Fox timber sale in the Allegheny 
National Forest (ANF) in Pennsylvania, paying a lump sum for all marked trees located 
within a designated area of approximately 2440 acres.   Cochran agreed to pay $1,030,307.30 
to harvest an estimated total quantity of 2959 hundred cubic feet (CCF) of timber.  Under the 
contract, the Government expressly did not guarantee the quantity and quality of timber 

 
  
         
    
 
   
     
 
  
  
 
    
        
  
  
 
  
 
    
 
     
 
2CBCA 895 
estimated in the sale, and made other disclaimers and limitations upon its liabilities.  Cochran 
contends that during performance it determined that it was recovering less timber volume 
than the estimates provided in the contract.  It stopped harvesting and did not complete 
performance. Cochran proposes alternative theories for relief, all premised upon alleged FS 
erroneous estimates: (1) a contract adjustment pursuant to the Adjustment for Quantity Error 
clause; (2) breach damages; and (3) reformation of the contract based on mutual mistake. 
In summary, the record does not contractually or factually support appellant’s claim. 
While the detailed findings of fact and legal discussion fully resolve each of the particular 
issues related to alleged faulty FS volume estimates raised by appellant, to assist the reader 
in understanding this case for future application, the rationale is concisely stated here.  Under 
the terms of the contract the purchaser assumed certain risks associated with the volume 
estimates. The purchaser expressly held the Government harmless for any error, mistake, or 
negligence relating to the volume estimates, except as otherwise provided in the contract. 
The only contractual exception to the hold harmless provision is found in the Adjustment for 
Quantity Errors clause, which provides that estimated quantities are to be revised when the 
error is caused by computer malfunction or an error in calculations, area determination, or 
computer input.  Apart from this clause, the allegations of error, breach, and mistake argued 
by appellant provide no basis for relief.  Appellant failed to demonstrate either element 
required for relief under the Adjustment for Quantity Errors clause; that is, the record does 
not show (1) an error in the total estimate for the sale, or (2) a computer malfunction or an 
error in calculations, area determination, or computer input. 
The record does not demonstrate that the estimates were erroneous or that any 
compensable error occurred when the FS formulated these estimates. Any possible shortfalls 
could be readily attributable to timber quality and defects, for which the contract expressly 
provides no adjustment will occur. Similarly, appellant has not established that the FS acted, 
or failed to act, in some way so as to breach the contract.  The FS employees who cruised the 
sale area were qualified and certified, and there is no evidence that the problems associated 
with the check cruise were material or adversely impacted the timber volume estimates.
1 
Cruise data, as well as subsequent reviews, support a finding that the timber volume 
estimates used in the contract were reasonably accurate.  Appellant assumed significant risks 
1   Cruising is the process by which the amount of merchantable timber in a given area 
is estimated. The process involves selection of sample areas or units, counting and 
measurement of trees in areas or units, estimates of defects and breakage, and extension of 
the sample results to the whole area.  Caffall Bros. Forest Products, Inc. v. United States , 678 
F.2d 1071, 1073 (Ct. Cl. 1982).  The FS uses check cruises to evaluate and verify the 
accuracy of the cruise data.  

  
 
 
 
 
    
   
  
 
   
 
 
  
      
 
  
3CBCA 895 
in this contract.  Appellant has failed to demonstrate that an error in the FS estimates 
occurred for which it is entitled to relief, that the FS in some way breached the contract, that 
a mutual mistake occurred, or that any basis exists for reformation of the contract. 
The appeal was submitted for decision on the written record pursuant to Board Rule 
19 (48 CFR 6101.19 (2008)). The record considered by the Board consists of the pleadings; 
appeal file (exhibits 1 through 89); appellant’s appeal file supplement (exhibits 1 through 
24); Board Exhibit 1; Appellant’s Rule 19 Submission (with Attachments A through D); 
Respondent’s Rule 19 Submission (with Attachments A through E); Appellant’s Rule 19 
Reply (with Attachments A through C); Respondent’s Notice of Supplemental Authority; 
Appellant’s Response to Respondent’s Notice of Supplemental Authority; and the transcript 
of the oral argument held on November 4, 2008. 
Findings of Fact 
The timber and cruise 
A severe weather event struck northwestern Pennsylvania on July 21 and 22, 2003. 
Appeal File, Exhibit 1.  Randall Durner, a timber sale contracting officer in ANF’s forest 
supervisor’s office, developed a general timber sale cruise plan for cruising and marking the 
blown down timber using the appropriate FS Timber Cruising Handbook, which provided 
agency-wide guidance and methodology for conducting and evaluating FS timber sale 
cruises.  Appeal File, Exhibits 3, 16; Appeal File Supplement, Exhibit 22 (Deposition of 
Randall Durner (Feb. 28-29, 2008)) at 54; Respondent’s Rule 19 Submission, Attachment 
A (Declaration of Randall Durner (Apr. 19, 2008)) ¶ 1.
2  In November 2004, the ANF and 
the FS regional office tailored the general cruise plan into a more detailed timber cruise plan 
specifically for the sale area that became known as the Silver Fox timber sale.  Appeal File, 
Exhibits 4, 5. 
2   The FS Timber Cruising Handbook is part of the FS directive system that consists 
of the FS manuals and various handbooks.  This system contains FS policy, practice, and 
procedures; serves as the primary basis for the internal management and control of FS 
programs; and provides the primary source of administrative direction to FS employees.  Of 
pertinence to this decision are the National Forest Log Scaling Handbook, FSH 2409.11; the 
Cubic Scaling Handbook, FSH 2409.11a; the Timber Cruising Handbook, FSH 2409.12; and 
the Timber Sale Preparation Handbook, FSH 2409.18.  Handbook updates in the form of 
amendments are issued as the FS sees fit . 

  
   
  
        
   
 
  
  
   
 
 
 
  
      
        
 
      
 
 
   
   
 
 
4CBCA 895 
The cruising for the Silver Fox timber sale began in November 2004 and was 
completed in May 2005.  Appeal File, Exhibit 8.  FS employees Kit Adams, Fred 
Swartzbeck, and Robert Fish were the cruisers for the sale, and Justin Weyant assisted them 
as a cruiser-in-training.  Id .; Durner Declaration ¶ 17. Messrs. Adams, Swartzbeck, and Fish 
each had several years of forest and cruise experience, were experienced in ANF timber 
conditions, and were qualified timber cruisers.  Appeal File, Exhibits 66, 68-70, 72-74; 
Appeal File Supplement, Exhibit 13; Respondent’s Rule 19 Submission, Attachment B 
(Declaration of Kit Adams (Apr. 17, 2008)) ¶¶ 2-6.
3   The record establishes that all three 
cruisers received sufficient training preceding the cruise to meet the quality control 
objectives of the FS Timber Cruising Handbook.  Appeal File, Exhibit 16 at 276-82; Appeal 
File Supplement, Exhibit 13.  Mr. Durner declared that he was “personally aware” that the 
three men “were active, certified cruisers at the time of the Silver Fox timber sale cruise.” 
Durner Declaration ¶ 17. This declaration of cruiser certification was not successfully 
rebutted in the record.  See Adams Declaration ¶ 1; Appeal File, Exhibits 66, 68-70, 72-74; 
Appeal File Supplement, Exhibit 13.  The record supports, and the Board so finds, that at the 
time of the Silver Fox sale, Messrs. Adams, Swartzbeck, and Fish were certified cruisers. 
The sale area was cruised and the area marked into payment units.  Appeal File 
Supplement, Exhibit 13; Appeal File, Exhibit 26 at 451.  Using the sample tree methodology 
dictated by the cruise plan, the cruisers counted each tree meeting the sale’s merchantability 
requirements.  Appeal File, Exhibit 8.
4   As they were counting the trees, the cruisers marked 
each tree so it would not be double counted and recorded the count by species on dot tally 
sheets.  Id .  The cruisers, in pre-determined intervals, designated sample trees for 
measurement of diameter and height, measured the sample trees, and visually estimated the 
amount of defect.  Id. The measurements and estimated amount of defect for each sample 
tree were also recorded on the dot tally sheets.  Id .; see also  Appeal File Supplement, Exhibit 
25 (Deposition of David Cotterman (Feb. 28, 2008)) at 19, 39, 40.  The information from the 
dot tally sheets was entered into a FS computer database, called the National Timber Cruise 
3   The record reveals that Mr. Adams became a certified qualified timber cruiser in 
1996 and maintained FS certification through 2005. Adams Declaration ¶ 1.  No declarations 
were received from Messrs. Fish and Swartzbeck regarding the status of their cruiser 
certifications; however, it appears from the record that Mr. Fish became a certified qualified 
timber cruiser in 1992 and Mr. Swartzbeck became one in 1995.  Appeal File, Exhibits 66, 
68-70, 72-74; Appeal File Supplement, Exhibit 13. Both Messrs. Fish and Swartzbeck 
appear to have had sufficient training to maintain their cruiser certifications.  Id . 
4 A merchantable black cherry or red maple tree had to be at least 11 inches in 
diameter at breast height (DBH), 9.6 inches in diameter at the small end, and at least 8 feet 
in length.  Appeal File, Exhibit 26 at 431.  

  
        
  
    
   
   
    
 
          
 
 
       
  
           
   
 
    
 
5CBCA 895 
Program (NATCRS), where a computer printout was generated that included, among other 
things, the UC5 report.  The UC5 report showed the overall total number of trees, estimated 
gross volume of timber species by CUFT (cubic feet) and BDFT (board feet) using the 
International 1/4-inch log rule (hereinafter referred to as the International scale), and the 
estimated net volume of timber species by CUFT and BDFT.  Appeal File, Exhibit 10 at 144. 
The UC5 report also provided this information by payment unit.  Id. at 135-43.  Sometime 
after the cruise, the sale area was divided into two smaller sales, referred to as the Silver Fox 
timber sale and the FR 580 timber sale.  Id ., Exhibit 7. 
After the NATCRS run was completed, and prior to the FS offering the timber for 
sale, David Cotterman, a forest technician and timber sale administrator at the ANF, did a 
line-by-line review of the tree measurement data that had been input into the computer. 
Cotterman Deposition at 10-13. Comparing the computer data against the cruise dot tally 
sheets, he found no errors in the data input.  Id.  Mr. Cotterman also reviewed the tree count 
data and made three corrections; two corrections were made due to omissions in unit 7 for 
pulpwood sample measurement trees, and one correction was made due to over-counting one 
beech tree in unit 16. Appeal File, Exhibit 9 at 83, 92, 106. The FS handled the potential for 
unseen defect during the appraisal process by reducing the advertised price for the sale. 
Durner Deposition at 72-73; Appeal File, Exhibit 60.  Mr. Durner applied a factor of 7.5% 
for defect in black cherry sawtimber as his review of past sales indicated that the average 
deduction for defect in black cherry sawtimber was 6.4%.  Durner Deposition at 72-74. 
Since the total estimated sale volume exceeded 2000 CCF, a check cruise was called 
for. Appeal File, Exhibits 10, 15, 16 at 287; Appeal File Supplement, Exhibit 23 (Deposition 
of Michael Van Dyck (Feb. 29, 2008)) at 16, 36.  Regarding check cruises, the FS Timber 
Cruising Handbook provides the following guidance: “Measurement checks should be 
designed to obtain a representative sample of the original number of sample units . . . .  The 
sample should be dispersed throughout the cutting units in the sale area to determine if all 
significant variables . . . have been identified.”  Appeal File, Exhibit 16 at 287.
5   In June 
5   Cochran mentions that several years earlier some FS staff had met to discuss 
tolerances as a possible way of evaluating cruiser performance and check cruises, but no 
action was taken to implement any staff recommendations or amend FS Timber Cruising 
Handbook. Appeal File, Exhibit 1003; Durner Deposition at 57-58, 69; Van Dyck 
Deposition at 37. The FS generally evaluates timber cruises using a volume comparison; FS 
personnel compare cruise volume estimates with the estimated volume of a subsequent check 
cruise to ensure that the cruise estimate of volume is within +/- 10% of the check cruise 
estimate.  Cotterman Deposition at 31-33. Cochran has not established the materiality of 
these facts. 

   
  
       
    
   
    
   
 
  
  
      
  
   
 
  
          
   
 
     
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2005, the FS contracted with an independent check cruise contractor, Joseph Hepinger, to 
perform the check cruise.  Id. at 231, 287; see also id., Exhibits 12, 16; Appeal File 
Supplement, Exhibit 24 (Deposition of Joseph Hepinger (Feb. 29, 2008)) at 10.  The FS 
purchase order for the check cruise provided that the check cruiser was to check measure 
fifty sample measurement trees throughout the timber sale area. Appeal File, Exhibit 12 at 
147.   The check cruiser should: “perform check measurements on sample measurement trees 
dispersed over at least 40% or twelve (12) of the cutting units across the sale, to account for 
all significant variables.  A representative sample of various species and products is desired.” 
Id. at 151.  The purchase order did not require that the tree count be reviewed or that the trees 
be recounted.  Id . 
Mr. Hepinger independently determined the units to check cruise based on a random 
selection among the measurement trees.  Appeal File, Exhibit 12; Hepinger Deposition at 14­
15, 30; Cotterman Deposition at 24-25. He checked the required total of fifty trees.  Appeal 
File, Exhibit 14; Hepinger Deposition at 24.  Despite the terms of the purchase order, 
however, Mr. Hepinger checked trees in only four payment units, asserting that, based on his 
knowledge of timber conditions and his field experience in the sale area, he knew that the 
timber was uniform and did not require him to examine additional units.  Hepinger 
Deposition at 22-24, 32-33.  The check cruise was completed in July 2005.  Appeal File, 
Exhibit 14; Hepinger Deposition at 30-31. Sometime after the FS realized that Mr. Hepinger 
had check cruised only four units, Mr. Cotterman evaluated the check cruise data again and 
concluded that the trees that were checked were properly dispersed and representative of the 
characteristics of the sale.  Cotterman Deposition at 27-29.  Even if the check cruiser did not 
fulfill his contractual requirements, the record supports the conclusion that the check cruise 
satisfied the guidance of the FS Timber Cruising Handbook.  The appellant has identified no 
data discrepancies that were not identified by the check cruise. 
The check cruise data were input into NATCRS and then compared with the data from 
the original cruise. Appeal File, Exhibit 15. Mr. Cotterman determined that the check cruise 
validated the cruise data, and was within the reasonably acceptable error rate of +/- 10% of 
sawtimber volume, because the tree species matched and there was only a 1% difference 
between the sawtimber volume between the original cruise and the check cruise.  Appeal 
File, Exhibits 10, 15; Cotterman Deposition at 31, 32-33, 36-37.  The results from the count 
and sample measurement trees were extrapolated to all the trees in the population to arrive 
at a total estimated volume of timber by species.  Appeal File, Exhibit 16 at 231. 
Based on the record, the Board finds that the cruise and check cruise were adequately 
conducted and that the estimates generated were reasonably accurate.  
The solicitation and contract 

 
   
       
  
   
 
 
 
    
 
          
       
 
  
 
 
  
  
   
7 CBCA 895 
Using volume estimates, the FS issued a bid advertisement for the Silver Fox timber 
sale on September 1, 2005, noting that prospective bidders could request a copy of the sale 
prospectus.  Appeal File, Exhibit 21 at 400.  The notice stated that the estimates were not 
guaranteed and the prospectus was informational only.  A purchaser would buy all designated 
timber at a total purchase price without regard to the actual or measured quantity removed. 
The bid advertisement showed that there was an estimated volume of 1058 CCF of black 
cherry sawtimber, 16 CCF of beech sawtimber, 676 CCF of red maple sawtimber, and 1209 
CCF of pulpwood.  Id . at 377. Bidders were instructed that “[a]ward of the contract will be 
made to that responsible bidder whose bid, conforming to the invitation for bids, is most 
advantageous to the United States on the basis of total value at rates bid for the estimated 
quantities.”  Id. at 400.  The sale advertisement also contained several disclaimers that are 
standard to FS timber sales, and bidders were warned that they would be required to execute 
the disclaimers when bidding.  Id . at 395-98. 
The sale prospectus that was made available to all prospective bidders warned that it 
was not a legally binding document.  Appeal File, Exhibit 20 at 378.  Prospective bidders 
were informed that the “[t]otal sale value on advertised rates is $1,030,307.30,” thus 
establishing a minium bid total.  Id. at 384. 
The quality, size, cut per acre and product suitability of the timber are 
estimates based on detailed cruise information on file and available for 
inspection at the Forest Service offices listed above and in the advertisement. 
VOLUME QUANTITIES LISTED HERE ARE MADE AVAILABLE WITH 
THE UNDERSTANDING THAT VALUES SHOWN ARE FOREST 
SERVICE ESTIMATES AND ARE NOT GUARANTEED.  For these 
reasons, bidders are urged to examine the timber sale area and make their own 
estimates. 
Id.  Attached to the sale prospectus was the NATCRS computer printout, including the UC5 
report.  Id . at 394; Cotterman Deposition at 38. 
Prior to bidding, Wade Cochran, who was Cochran’s president, spent approximately 
fifteen hours examining the timber in units 1, 2, 5 through 7, 9, 12, 13, 15 through 19, 21 
through 23, and 30 of the sale area.  Appellant’s Rule 19 Submission, Attachment 1 
(Affidavit of Wade Cochran (undated)) ¶¶ 1, 5-6; Board Exhibit 1 (Deposition of Wade 
Cochran (Feb. 29, 2008)) at 30.  He elected to not visit the remaining thirteen units because 
he “assumed that the whole area was pretty much the same quality of timber and size.” 
Cochran Deposition at 32.  During his inspection, Mr. Cochran did not measure any tree 
heights or diameters to verify the FS measurements; instead, he “used pretty much the [FS] 
prospectus and [his] experience” to develop the offer.  Id. at 22-23, 32-33.  He estimated 

 
 
 
  
 
  
  
  
    
 
 
 
   
  
 
 
 
 
     
8 CBCA 895 
wood defect based upon “what [he] could see and [his] experience from previous sales.”  Id. 
at 23.  Mr. Cochran understood that the timber quantity set forth in the documents he was 
using was not guaranteed.  Id . at 57. 
On or about October 31, 2005, Cochran made a bid on the sale.  Appeal File, Exhibit 
23.  The bid, which had been formulated by Mr. Cochran, shows Cochran offering to pay 
$932.16 per CCF for an estimated 1058 CCF of black cherry sawtimber, $6.00 per CCF for 
an estimated 16 CCF of beech sawtimber, $61.67 per CCF for an estimated 676 CCF of red 
maple sawtimber, and $1.90 per CCF for an estimated 1209 CCF of pulpwood.  Id . 
Multiplied, the offer amounted to a total of $1,030,307.30, but the bid form did not contain 
the total value figure.  Id . 
Having inspected the sale area to his satisfaction to be able to formulate a bid, Mr. 
Cochran, on behalf of Cochran, executed the several disclaimers associated with the volume 
estimates: 
DISCLAIMER OF ESTIMATES AND BIDDER’S WARRANTY OF 
INSPECTION:  Before submitting this bid, the Bidder is advised and 
cautioned to inspect the sale area, review the requirements of the sample sale 
contract, and take other steps as may be reasonably necessary to ascertain the 
location, estimated volume, construction estimates, and operating costs of the 
offered timber or forest products.  Failure to do so will not relieve the Bidder 
from responsibility for completing the contract. 
The Bidder warrants that this bid/offer is submitted solely on the basis of its 
examination and inspection of the quality and quantity of the timber or forest 
product offered for sale and is based solely on its opinion of the value thereof 
and its costs of recovery, without any reliance on Forest Service estimates of 
timber or forest product quality, quantity or costs of recovery.  Bidder further 
acknowledges that the Forest Service (i) expressly disclaims any warranty of 
fitness of timber or forest product for any purpose; (ii) offers this timber or 
forest product as is without any warranty of quality (merchantability) or 
quantity and (iii) expressly disclaims any warranty as to the quantity or quality 
of timber or forest product sold except as may be expressly warranted in the 
sample contract. 
The Bidder further holds the Forest Service harmless for any error, mistake, 
or negligence regarding estimates except as expressly warranted against in the 
sample contract. 

 
     
  
  
  
 
 
 
  
 
   
  
       
     
    
  
   
 
            
 
9 CBCA 895 
Appeal File, Exhibit 23 at 409.  The sample contract set forth the Adjustment for Quantity 
Errors clause as the sole express warranty here relevant. 
On January 3, 2006, based on Cochran’s bid in the amount of $1,030,307.30, the FS 
awarded the Silver Fox timber sale, contract 02-153346, to Cochran.  Appeal File, Exhibit 
25 at 419. 
Consistent with the solicitation, the contract contained a variety of clauses common 
to timber sales contracts, including several clauses dealing with the timber volumes in the 
sale.  Clause AT2, Volume Estimation and Utilization Standards, set forth the FS’ estimated 
volume of timber by total quantity and by species.  Appeal File, Exhibit 26 at 431.  The total 
estimated volume of timber was 2959 CCF, derived from an estimated volume of 1058 CCF 
of black cherry sawtimber, 16 CCF of beech sawtimber, 676 CCF of red maple sawtimber, 
and 1209 CCF of pulpwood.  The contract provided that “the estimated quantities stated in 
AT2 are not to be construed as guarantees or limitations of the timber quantities to be 
designated for cutting under the terms of this contract.”  Id. at 449.  At clause AT4b of the 
contract, Cochran agreed to pay the FS the flat rates for each variety of timber that it had bid. 
Id. at 432.  That is, Cochran was obligated to pay the FS the sum of the estimated volume 
times the flat rate.  Payment was not dependent upon actual volumes removed.  The contract 
also contained clause AT4c, Schedule of Payment Units, which listed thirty payment units 
by number, each listing the species, the estimated volume of timber by CCF, and the flat rate 
payment expected from Cochran, using the flat rates set forth at clause AT4b.  Id . at 433-35. 
Several other provisions that further addressed the responsibilities and risks associated 
with the estimates were in the contract. Pertinent to the dispute before us, clauses BT2.4 and 
BT2.43 provided: 
BT2.4, Quantity Estimate.  The estimated quantities of timber by species 
designated for cutting under BT2.3 and expected to be cut under utilization 
standards are listed in AT2. 
. . . . 
BT2.43, Adjustment for Quantity Errors.  An estimated quantity shown in AT2 
shall be revised by correcting identified errors made in determining estimated 
quantity that result in a change in total timber sale quantity of at least 10 
percent or $1,000 in value, whichever is less, when an incorrect estimated 
quantity is caused by computer malfunction or an error in calculations, area 
determination, or computer input. 

  
  
     
   
   
            
      
       
  
  
   
  
    
      
    
 
 
    
 
  
  
  
 
10 CBCA 895 
No adjustments in quantity shall be made for variations in accuracy resulting 
from planned sampling and measuring methods or judgments of timber quality 
or defect.  
Appeal File, Exhibit 26 at 448-49. On January 3, 2006, the contract was modified to divide 
payment unit 24 into units 24A and 24B.  Id . at 427.  
Timber harvest 
Cochran commenced harvesting on the Silver Fox timber sale in January 2006. 
Appeal File, Exhibit 28.  Cochran cut the timber in a unit, took the timber to its log yard, 
measured it to establish gross volume, cut out the defective wood, and then measured the 
timber to derive net volume.  Id . at 70-71. 
On August 16, 2006, Mr. Cochran called Mr. Durner to request a meeting to discuss 
timber volume issues. Appeal File, Exhibit 30. Cochran stated that while the gross volume 
of the timber was “coming out well,” the net volume “was a problem.”  Id.; Durner 
Deposition at 15. Volume was being lost due to red rot defect in the heartwood of the black 
cherry logs, and in units 16, 17, 18, and 19, due to ring shake, another type of internal wood 
defect. Appeal File, Exhibit 30.  Mr. Cochran told Mr. Durner that thirty percent of the black 
cherry sawtimber he had harvested had red rot defect in it to varying degrees.  Id . At a 
meeting held on August 17, 2006, Cochran asserted that the FS had breached the contract by 
failing to follow its own protocol when estimating the timber volume, and had as a result 
overstated the timber volume for the sale.  Id . Mr. Cochran acknowledged that he knew the 
sale area would have red rot defect in the black cherry heartwood, but that, based on his pre-
offer inspection, the amount of defect he was encountering was greater than he expected. 
Cochran Deposition at 81, 83-84. Following the August 17 meeting, Mr. Durner asked Mr. 
Cotterman to review the cruise data for the Silver Fox timber sale to see if there were data 
entry errors.  Durner Deposition at 19-21.  Mr. Cotterman reviewed the data but did not find 
any errors in data entry.  Id . 
On December 21, 2006, Cochran’s attorney wrote to Mr. Durner, representing that 
Cochran had finished harvesting payment units 8 through 13, 16 through 23, 24A, and 30, 
and that the FS had billed Cochran “total flat payment amounts” for those units.  Appeal File, 
Exhibit 33.  Setting forth figures that he asserted showed overstated estimated quantities of 
black cherry sawtimber, Cochran’s attorney argued that Cochran was entitled to a reduction 
in the FS billing based on the Adjustment for Quantity Errors clause of the contract and 
mutual mistake.  Id. Cochran’s attorney also requested that the FS cancel the remaining units 
in the sale, which Cochran had not yet begun harvesting.  Id .  Mr. Durner treated the 
December 21 correspondence as a claim and on January 23, 2007, wrote Cochran requesting 
that it provide specific information on the monetary amount claimed.  Id ., Exhibit 34. 

   
  
            
  
 
          
   
 
    
 
 
     
 
  
    
     
11 CBCA 895 
Cochran responded on February 13, 2007, stating a “supplemental request to convert our 
request to a formal claim” would be submitted “in the near future.”  Id., Exhibit 36. 
Mr. Durner and other FS personnel met with Mr. Cochran and his attorney on 
March 1, 2007, to discuss further the volume issues relating to the sale.  Appeal File, Exhibit 
37.  Cochran indicated that it had stopped harvesting, did not have the financial resources to 
complete performance of the contract, and wanted to terminate the contract.  Id., Exhibits 37, 
52. Also during the discussion, Cochran maintained that the sale’s check cruise was 
inadequate and that the sawtimber volume harvested was reduced due to red rot.  Id., Exhibit 
37.  When Mr. Cochran stated that he had calculated Cochran’s volume shortfall using the 
Doyle log rule (hereinafter referred to as the Doyle scale), Mr. Durner responded that 
Cochran would have to convert that data to CCF measurements for comparison purposes 
because the FS’ estimated volumes were in CCF and CCF was the controlling unit of 
measure under the contract.  Id. The FS agreed to review its cruise and check cruise data for 
errors that might have contributed to a volume shortfall.  Id. 
James Campbell, a timber sale representative in ANF’s forest supervisor’s office, 
reviewed the cruise and check cruise data for possible errors using a newly developed 
computer program called CheckMate.  Appeal File, Exhibit 44 at 708-14; see also id., 
Exhibit 77.  The CheckMate report showed that the Silver Fox cruise and check cruise 
“passed,” with the sawlog height measurements for the sale receiving a score of 96% 
accuracy and the cruise and check cruise data as overall being 98% accurate.  Id. , Exhibit 44 
at 708.  Mr. Campbell reviewed other data and noted in an internal FS document that he 
believed the “amount of volume loss or difference is extremely low for a two year old 
salvage sale.”  Id., Exhibit 84 at 1154.  Mr. Campbell wrote: 
After reviewing all the documentation associated with this sale, I can find no 
errors in the sale. However, there are errors in the collection of data.  At a 
minimum, I would expect to see a difference of at least 10% between gross 
and net on two year old blowdown. A difference of 20% would not surprise 
me in the white woods.  Some studies conducted by the Experiment Station on 
blowdown timber show 95% of the red maple boards sawn two years after the 
windstorm can no longer be sold as lumber, i.e., sawtimber.  They would have 
to be sold as pulpwood.  

 
  
 
  
 
  
  
     
 
   
      
 
 
   
  
 
  
 
 
   
12 CBCA 895 
It appears from looking through the sale documentation that no deductions 
were made in volume for the two year old blowdown.  All the deductions were 
made at the quality and market level during the appraisal.  A reduced 
advertised dollar value at advertisement does nothing for volume that is not 
there. 
Id.  Mr. Campbell raised the possibility of an error in the timber defect percentage with the 
contracting officer, but Mr. Durner, who was Mr. Campbell’s supervisor, disagreed with Mr. 
Campbell’s concern that the timber defect percentage was low.  Durner Declaration ¶ 6. 
Using his twenty-two years of ANF experience, the results of a destructive sampling 
examination conducted in the ANF on February 28, 2006, and a review of past field defect 
judgments of sawtimber volume estimates, Mr. Durner concluded that the wood defect 
estimate of 7.5% for the black cherry sawtimber was reasonable and reliable.  Id .; see also 
Durner Deposition at 72-73.  In short, he concluded that Mr. Campbell’s concern that “there 
are errors in the collection of data,” was not borne out by the record.  We find Mr. Durner’s 
assessment more persuasive, as it is consistent with other analyses in the record. 
On November 20, 2007, the FS sent a notice to Cochran that a periodic payment of 
$183,124.01 was due for the units it had harvested.  Durner Declaration ¶ 27.  After not 
receiving a response from Cochran, and with the payment still outstanding, on March 6, 
2008, Mr. Durner sent Cochran a notice stating that the FS considered Cochran to have 
breached the contract and “all harvest operations are hereby suspended immediately on the 
sale until the breach is remedied.”  Appeal File, Exhibit 89. 
Hoping to obtain relief from the contract, Cochran submitted some log scale summary 
sheets and other information on March 27, 2007, listing in Doyle scale the gross and net 
BDFT of sawtimber that it had harvested.  Appeal File, Exhibit 39.  The contracting officer 
responded on April 12, 2007, to the volume concerns raised by Cochran, stating that the FS 
had found no problems with the cruise or check cruise, or errors that would qualify Cochran 
for a volume adjustment under the Adjustment for Quantity Errors clause.  Id . 
Alleging that it had “only been able to cut approximately 65% of the timber in the sale 
area,” Cochran submitted a certified claim on May 4, 2007, seeking, inter alia , $436,330 in 
breach damages, or, alternatively, $221,629.78 for correction or reformation of the contract 
payment amounts for units 8 through 13, 16 through 23, 24A, and 30.  Appeal File, Exhibit 
47.  Attaching tables to its claim, Cochran depicted by payment unit the FS’ estimated black 
cherry and red maple sawtimber by BDFT (in International scale) as found in the prospectus, 
and the BDFT of the sawtimber it harvested (in Doyle scale).  Using the BDFT volumes 
derived from the two different forms of measurement, Cochran then subtracted the volume 

        
    
 
     
 
      
      
 
 
     
    
     
 
  
  
  
 
  
   
  
 
 
    
13CBCA 895 
it recovered from the units it harvested from the FS estimates to reach a purported difference. 
Next, it converted that difference into CCF, applied the appropriate payment rate for the 
species of sawtimber, and reached what it alleged was the plus or minus dollar difference 
between the FS estimates and the timber it harvested.  Id.
6   Cochran also sought cancellation 
of the work in payment units 1 through 7, 14, 15, 24B, and 26 through 29, a sixty-five 
percent pro rata reduction in the $23,850.91 it alleges the FS had billed it for road 
construction, and reimbursement of $8900.51 in legal fees and costs for preparing and 
negotiating the associated request for an equitable adjustment.  
In August 2007, Mr. Durner reconsidered an earlier request from Cochran for a stump 
count of harvested trees.  Durner Declaration ¶ 10.  Although he believed stump counts were 
of limited usefulness, questionable accuracy, and rarely conducted in the FS Eastern Region 
because of that, he decided a stump count would provide “one more piece of information to 
consider in the context of the other reviews” to use in making his final decision.  Id . ¶¶ 7-10. 
Mr. Durner noted that “in post harvest [stump] counts, it’s difficult to always capture all the 
tree [stumps] due to disturbance, cover up, tops on stumps, [and] things like that.”  Durner 
Deposition at 94; Durner Declaration ¶ 12. A stump count of payment units 10 and 13 was 
conducted by the FS in August 2007, covering approximately thirty-one acres, and showing 
that there were thirty-three fewer stumps than in the cruise count.  Durner Declaration ¶ 11; 
see also Appeal File Supplement, Exhibit 11 at 1; Appeal File, Exhibit 20 at 388; Durner 
Deposition at 93-94.  Mr. Durner declared that he did not find the results from the stump 
count “conclusive,” “unusual or unexpected,” as the difference averaged only approximately 
one stump per acre.  Durner Declaration ¶¶ 11-12.  Mr. Durner stated that he considered the 
stump count information, as well as “the totality of the record, including the two reviews of 
the check cruise data,” in making his final decision.  Id . ¶ 12. 
Cochran’s argument is based on its calculations showing the net volumes of the black 
cherry and red maple sawtimber as harvested by payment units, after the defects have been 
cut out.  According to its scaling data, the harvested volume in some units was greater than 
the FS’ volume estimate, and in others it was less. Appeal File, Exhibit 60 at 855 (table).
7 
6   The first table depicts that for the units harvested, the FS estimated 417,015 BDFT 
of black cherry and Cochran harvested 284,996 BDFT, for a difference of 132,019 BDFT 
and a loss of $205,112.48. The second table depicts that for the payment units harvested, the 
FS estimated 313,982 BDFT of black cherry and Cochran harvested 153,548 BDFT, for a 
difference of 160,434 BDFT and a loss of $16,517.30.   Appeal File, Exhibit 47.
7  According to Cochran’s figures, nine payment units had a greater harvest volume 
than the FS estimates: unit 8 (113%); unit 11 (142%); unit 12 (120%); unit 16 (102%); unit 
17 (135%); unit 19 (120%); unit 20 (154%); unit 22 (175%); and unit 25 (102%).  Appeal 

  
  
  
 
    
     
  
   
  
 
  
 
   
 
            
 
  
 
 
14 CBCA 895 
Cochran requested that “the timber quantities in table AT2 and the total payment figures 
shown in AT4c . . . be revised to conform to the actual tallies shown in the Cochran scaling 
records.”  Appeal File, Exhibit 47. 
On August 24, 2007, Mr. Durner issued a contracting officer’s decision denying the 
claim and concluding that, among other things, Cochran had not proved that the FS had 
overestimated the sawtimber to be removed and was not entitled to recovery under the 
Adjustment for Quantity Errors clause, it had failed to show that the FS breached the contract 
by failing to follow FS protocol and procedures, and it had failed to demonstrate that a 
mutual mistake had occurred.  Appeal File, Exhibit 52. 
In support of its claim and throughout the dispute process, Cochran submitted several 
versions of information and calculations comparing the FS estimates to the timber quantities 
it harvested.  See  Appeal File, Exhibits 47, 60; Appeal File Supplement, Exhibit 17; 
Appellant’s Rule 19 Submission.  In the claim itself, Cochran did not provide comparable 
scaling methodologies with which to make reliable comparisons.  Later, after the final 
decision had been issued and in an undated submission, appellant shows tables containing 
the Doyle scale quantities set forth in its claim and, among other things a column purporting 
to show the Doyle scale quantities and the International scale quantities.  Appeal File 
Supplement, Exhibit 17.
8 
Michael Van Dyck, who since 2003 has been the FS Eastern Region timber 
measurements specialist responsible for oversight of timber volume estimation procedures, 
analyzed some of the data Cochran submitted on the red maple and black cherry sawtimber 
volumes. Van Dyck Declaration ¶ 1. During the course of attempting to prove volume 
losses, Cochran presented three different sets of red maple log scale information to the FS 
positing that the total net volume of red maple timber it harvested was 322 CCF as compared 
to FS’ estimated amount of 481 CCF for the same area.  Respondent’s Rule 19 Submission, 
Attachment E (Declaration of Michael Van Dyck (Apr. 28, 2008)) ¶ 3.  This, Cochran 
asserted, led to a shortfall of 33.1% for the red maple sawtimber.  Appellant’s Rule 19 
Submission at 26-28.  A comparison of two of the versions of data showed discrepancies. 
File, Exhibit 60 at 855 (table).  In other units, appellant’s reported harvested volume was less 
than the FS estimates: unit 9 (69%); unit 10 (48%); unit 13 (65%); unit 21 (80%); unit 23 
(35%); and unit 30 (81%).  Id. 
8   Although it is not so stated in the record, these tables seem to be what the parties 
refer to as Cochran’s January 2008 submission. 

 
  
   
      
 
  
  
 
   
       
  
 
        
 
     
  
15 CBCA 895 
Van Dyck Declaration ¶ 6. 9   In a later-provided third set of red maple log scale information, 
additional discrepancies were found.  Id . ¶ 7.  Mr. Van Dyck determined that because of 
unexplained inconsistencies in the three versions of red maple volume data that the FS had 
received, he was unable to prepare an accurate comparison of the red maple sawtimber 
volume.  Id . ¶¶ 8-9.  We find the red maple volume information proffered by Cochran to 
justify volume discrepancies faulty, confusing, and often conclusory.  We agree with Mr. Van 
Dyck’s assessment that the red maple sawtimber data the FS received was unreliable. 
Regarding the alleged volume differences in the black cherry sawtimber, on 
February 1, 2008, Mr. Van Dyck, using the figures he received from Cochran’s January 2008 
submission on the individual payment units and without any independent calculations of his 
own, compared Cochran’s volumes with the FS’ estimated volumes.  Appeal File, Exhibit 
59.  He concluded that there was a 13.9% volume difference between the FS estimates for 
units 8 through 13, 16 through 23, 25, and 30, and the volumes Cochran claimed it harvested 
on those units.  Id . According to Cochran, the total net volume of black cherry timber it 
harvested was 444 CCF.  Appellant’s Rule 19 Submission at 26-28. Based on the FS’ 574 
CCF estimated net volume of black cherry sawtimber, Cochran asserted it experienced a 
shortfall of 22.65% for black cherry sawtimber.  Id. 
That same day, Mr. Van Dyck prepared his own calculations using the information 
from the January 2008 submission as well as Cochran’s tally of marketable black cherry 
sawtimber.  Appeal File, Exhibit 60.  For this report, and by each payment unit, Mr. Van 
Dyck used Cochran’s measurement of each piece of marketable black cherry sawtimber to 
calculate directly the CCF of each piece of black cherry sawtimber.  Id. He then took the 
total of the CCF figures he had calculated using Cochran’s tally data and compared that total 
to the totals of the FS’ estimated black cherry CCF for the harvested payment units, to 
determine whether there was a difference, and if so, how much of a difference.  Id .  Mr. Van 
Dyck found an 8% difference between the FS’ estimated CCF of black cherry sawtimber and 
Cochran’s tally data; Cochran had harvested 472.12 CCF of marketable black cherry 
sawtimber as opposed to the contract’s estimate of 512 CCF.  Id .; Van Dyck Declaration ¶ 
9  Mr. Van Dyck discussed significant data disparities between the first and second red 
maple data submissions in a report dated March 5, 2008, noting no explanation was given 
for the disappearance of logs from one data set to the next or the appearance of new logs. 
He believed that the conflicting data “casts doubt on the accuracy of the black cherry scale 
data [and] the Government has no assurance that data is accurate.” Appeal File, Exhibit 61 
at 894. 

       
 
 
   
   
       
       
 
  
   
   
 
   
 
16CBCA 895 
10. 10 A later comparison of the log scale sheets and the January 2008 data indicated to Mr. 
Van Dyck that Cochran had not accounted for all the black cherry sawlog volume in its 
January 2008 submission, so he opined that the total harvested volume was likely greater than 
92% of the contract estimate.   Van Dyck Declaration ¶¶ 11-14.
11 
Mr. Van Dyck noted several other problems associated with the January 2008 data the 
FS received from Cochran: 
The Government has no way to verify that the scale data are accurate, nor that 
all [the] logs removed from the units as sawtimber are represented.  The values 
for log lengths and diameter are used without modification and without any 
attempt to identify errors. 
. . . . 
It is important to note that black cherry sawtimber was bid as a lump sum 
across all cutting units in the sale.  Individual units are specified in the contract 
only for the purpose of calculating payments.  It is impossible to determine 
how well the actual yield of black cherry sawtimber compares to the contract 
volume until all units have been harvested.  
Appeal File, Exhibit 60 at 855.  Like the red maple information, we similarly find the black 
cherry volume data Cochran proffered to justify volume discrepancies faulty, confusing, and 
often conclusory.  Some of the calculations appeared to account for defects and others did 
not.  The Board finds Mr. Van Dyck’s calculations contained in the second report to be more 
compelling than those proffered by appellant.  Appellant has not convincingly rebutted Mr. 
Van Dyck’s conclusions. 
10   The FS avers that appellant’s calculations are erroneous in part because the volume 
of the Government’s estimate should be 512 CCF, not 574 CCF.  Transcript at 55-57.
11   Mr. Van Dyck wrote that there were some sawtimber logs cut that met size 
specifications, but were rejected by Cochran as not being marketable because of internal 
defect (e.g., rot or ring shake).  Appeal File, Exhibit 60 at 855.  He noted that the rejected 
sawtimber logs were not included in Cochran’s log scale data, but that: “[t]hese logs [sh]ould 
have been included . . . since the timber cruise only accounts for defects that can be seen 
before the tree is cut. The potential for unseen defect is addressed through the appraisal 
process as a reduction in the advertised price.”  Id. 

   
     
        
   
         
 
    
 
 
 
 
 
      
  
  
    
 
 
17 CBCA 895 
Cochran never resumed cutting timber on the Silver Fox timber sale.  The contract 
expired on October 31, 2008.  Appeal File, Exhibit 26 at 429. The FS concluded that 
because not all the timber in the contract had been harvested by Cochran, it was not possible 
to determine accurately how the actual yield of sawtimber compared to the contract volume 
estimate.  Id ., Exhibit 60 at 855. 
In addition to harvesting the timber, Cochran agreed under the contract to bear certain 
road construction costs.  Appeal File, Exhibit 26 at 438, 454-57.  Cochran was also required 
to deposit $6200 for engineering services associated with road construction by February 8, 
2007.  Id ., Exhibits 26 at 479, 60 at 786, 87 at 1161. There is no indication in the record that 
Cochran ever paid the deposit.  Billing associated with road construction totaling $10,837.78 
has, to date, been deferred by the FS.  Id ., Exhibit 52 at 786. 
Based upon the record, the Board concludes that the volume estimates in the 
solicitation and contract were reasonably accurate. The FS calculations and reviews are well 
supported.  The purchaser has not established whether or how much it accounted for actual 
timber quality and defects.  Cochran has not presented credible information regarding its 
harvest and has not adequately accounted for the various discrepancies in its figures. 
Cochran has failed to provide reliable estimates or bases to discount the figures of the FS, 
most importantly regarding the total timber volumes for the sale. 
Positions of the Parties 
Appellant claims that the FS made faulty volume estimates and that as a result of those 
faulty estimates it harvested less timber than the estimated quantities in the contract. 
Appellant proffers three arguments for recovery.  Appellant asserts it is entitled to an 
equitable adjustment pursuant to the contract’s Adjustment for Quantity Errors clause 
because respondent allegedly input incorrect data into the computer program, resulting in 
errors exceeding $1000.  These errors in calculations, computer inputs, tree counts, and 
sawlog heights, appellant argues, caused damages  for which it seeks “either $221,629, based 
on the difference in net volume of black cherry and red maple sawtimber in board feet, or 
$130,346, based on the difference in net volume of black cherry and red maple sawtimber 
in CCF.”  Next, appellant posits that respondent’s failure to follow the applicable FS Timber 
Cruising Handbook provisions, while conducting the timber cruise and check cruise to 
calculate the estimated timber quantities on the sale, constituted a breach of contract entitling 
it to recover $415,580 in damages.  Finally, appellant asserts it is entitled to equitable relief 
based on mutual mistake, including $415,580 for financial losses and loss of estimated profit, 
$8347.82 in road construction costs, $8900 in legal fees incurred prior to this litigation, and 
“such other legal and equitable relief as is just, including reformation of the contract price 
for cut portions and rescission of the uncut cutting payment units of the contract . . . 

 
      
  
  
   
 
 
     
     
   
      
 
 
 
 
   
18 CBCA 895 
including reformation of the price for cut portions . . . and rescission of the uncut 
cutting/payment units of the contract.” 
Respondent asserts the volume estimate for the sale was reliable, its tree count and 
measurements were accurate, and relief under the contract’s Adjustment for Quantity Errors 
clause is not warranted.  Regarding the alleged breach of contract, respondent avers that it 
followed the FS Timber Cruising Handbook procedures in conducting the timber cruise and 
check cruise and did not breach the contract. Respondent also asserts that appellant 
misrepresented the difference between the estimated and harvested volumes when calculating 
the quantum portion of its claim, and that when the harvested volume in CCF is used to 
calculate the difference, there is no evidence of a grossly inadequate volume estimate. 
Finally, respondent contends that appellant has failed to prove it is entitled to recover under 
its theory of mutual mistake. 
Discussion 
This contract was for the sale of designated timber.  The purchaser agreed to pay the 
bid rate multiplied by the estimated quantities for each timber species.  To prepare for the 
sale, the FS cruised the sale area; it conducted a 100% tree count and used a selective 
sampling of the timber that it then measured for height and diameter at breast height.  Using 
the data obtained from the cruise, the FS extrapolated the figures to the timber in the 
population, applied a percentage factor for defective wood, and derived the timber volume 
estimates that it used for the sale. During the appraisal process the advertised price for the 
sale was reduced to compensate for potential but unseen wood defects. The sale was 
advertised and sold based on the estimated volume of timber by species, and the contract 
award was made “on the basis of total value at rates bid for the estimated quantities.”  The 
purchaser obtained the marked timber on the sale and agreed to pay the fixed price of 
$1,030,307.30, without regard to the actual volume removed, unless it could prove it was 
entitled to relief under the terms of the contract or because the FS, in some way, breached the 
contract.  
When half-way through the harvest of the sale the purchaser concluded it was 
recovering less timber than it had anticipated, it stopped cutting and failed to pay the payment 
amount set for the units that it had harvested.  Appellant seeks reduction of the payment 
amount and cancellation of the rest of the contract 
The language of the contract with its risk-shifting provisions and the findings of fact 
dictate a framework of analysis to be utilized in addressing the specific issues raised by 
appellant.  We first examine whether appellant was entitled to relief under the contract 
pursuant to the Adjustment for Quantity Errors clause. To recover under that clause, a 

    
  
 
 
       
      
 
  
 
 
 
 
  
      
 
  
 
 
   
 
 
   
 
19 CBCA 895 
purchaser must identify errors made in determining the estimated volume quantities that 
result in a change in total timber sale quantity of at least 10% or $1000 in value (whichever 
is less), and must demonstrate that the incorrect estimated quantity was caused by computer 
malfunction or an error in calculations, area determination or computer input.  Here, 
appellant failed to establish both elements required for relief.  Next, we consider whether the 
FS had, in some way breached the contract, and determine it had not.  Finally, we conclude 
that no mutual mistake occurred. We analyze each of appellant’s recovery theories in detail 
below. 
Risk-shifting provisions under the contract 
Central to resolving this dispute is an understanding of the language of this timber sale 
contract in which the FS expressly placed risks upon the purchaser while limiting its own 
liabilities.  The FS disclaimed the accuracy of its volume estimates as well as the fitness of 
the timber or forest product for any purpose, and offering them “as is” without any warranty 
of quality or quantity.  Under the terms of the contract, the FS agreed in limited 
circumstances to revise the estimated quantities (shown at contract clause AT2) by correcting 
identified errors made in determining the estimated quantity, when an incorrect estimated 
volume quantity was caused by computer malfunction or an error in calculations, area 
determination, or computer input.  The contract specified and appellant agreed that no 
adjustments for quantity errors would be made for variations in accuracy resulting from 
planned sampling and measuring methods or judgments of timber quality or defect.  The 
purchaser was also required to sign a disclaimer holding the FS “harmless for any error, 
mistake, or negligence regarding estimates except as expressly warranted against in the 
sample contract.”  Thus, the purchaser’s ability to recover for volume estimation errors was 
extremely limited by the clear terms of the contract.  Caffall Bros. Forest Products, Inc. v. 
United States , 678 F.2d 1071 (Ct. Cl. 1982); Webco Lumber, Inc. v. United States , 677 F.2d 
860 (Ct. Cl. 1982); Lance Logging Co. , AGBCA 98-137-1, et al., 01-1 BCA ¶ 31,356; D & 
L Construction Co. , AGBCA 96-207-1, 00-2 BCA ¶ 30,926 (1999). 
By execution of the required disclaimers the purchaser also acknowledged that it had 
not relied upon the FS’ estimates.  Case law and general principles of contracting that suggest 
relief may be available for faulty estimates must be read in light of, and contrasted against, 
language in a contract which sets forth only narrow limited circumstances under which relief 
may be available for faulty volume estimates.  Carr Forest Products, Inc. v. Department of 
Agriculture , CBCA 588, 08-2 BCA ¶ 33,883, at 167,697 (quoting Summit Contractors v. 
United States, 21 Cl. Ct. 767, 776 (1990)).  Under the facts presented by this case, the sole 
contract provision permitting the type of relief sought by appellant is found in the Adjustment 
for Quantity Errors clause.  

 
 
   
 
     
 
   
     
 
    
 
     
  
   
   
 
  
   
 
  
 
 
 
  
 
20 CBCA 895 
The Adjustment for Quantity Errors clause 
Pursuant to clause BT2.43, Adjustment for Quantity Errors, a purchaser may request 
that “an estimated quantity shown in clause AT2 of the contract be revised.”  The clause does 
not require an appellant to establish detrimental reliance upon the estimates.  To obtain an 
adjustment appellant must identify errors in the FS’ estimated volume that resulted in a 
change in “total timber sale quantity” of at least 10% or $1000 in value, whichever is less, 
and prove that the error was “caused by computer malfunction or an error in calculations, 
area determination, or computer input.” This is a two-pronged requirement, with the first 
looking to variations from the total timber sale quantity (not on a payment unit basis), and 
the second examining the basis of the error.  
Appellant has a threshold burden of establishing that the total timber sale quantity was 
less than the total timber sale quantity as estimated in the contract.  Carr , 08-2 BCA at 
167,701.  Appellant attempted to prove entitlement by comparing the volume of timber it 
says it harvested in sixteen of the thirty-one payment units, against the estimated volume 
quantities of those units as set forth in clause AT4c of the contract.  However, a purchaser 
cannot cut only certain units, and then, without accounting for the remaining uncut timber, 
use only those units to obtain a contract adjustment under the clause.  Such a comparison 
does not satisfy the first requirement for recovery under the clause; to recover, a purchaser 
must show that the total timber sale quantity it harvested differed from the FS estimates of 
the total timber sale quantity .  Appellant made no discernable attempt to inventory the 
balance of the uncut timber on the sale. As appellant has the burden of establishing that the 
total timber sale quantity in the contract differed from the FS estimate, its failure to provide 
probative evidence of a discrepancy in the total time sale quantity is a fatal flaw in proving 
the initial requirement for recovery under the clause.  Here, appellant wholly failed to provide 
evidence establishing that the total timber sale quantity was less than the FS estimated. 
Given this principal failure of proof, the Board need not delve into the inadequacies of proof 
proffered by Cochran, using various methods of measurement for the units it harvested, more 
than it has done so already in the findings of fact. 
As a second matter, to recover under the Adjustment for Quantity Errors clause a 
purchaser must also prove that the incorrect estimated volumes were caused by specific 
errors identified as a computer malfunction or an error in calculations, area determination, 
or computer input. Appellant has asserted that it harvested lower volumes of timber than it 
anticipated, but has not articulated or provided supporting evidence that identified errors 
occurred that would allow for relief under the clause.  Well after it had submitted its claim 
to the FS, appellant identified lower tree counts as the error causing its lower volume 
recovery. Errors in tree counts, sample tree data, and cruise data have been construed as 
“input errors in the volume estimation equations and calculation errors in the volume 

  
 
 
 
  
  
 
 
 
 
 
  
   
  
21CBCA 895 
estimate results” falling within the clause.  Cleereman Forest Products , AGBCA 2000-101­
1, 02-1 BCA ¶ 31,664, at 156,459 (2001), reconsideration denied , 02-1 BCA ¶ 31,829. 
However, while alleging lower tree counts, appellant failed to follow-up with credible 
evidence as to the specifics on the overall tree count showing that counting errors had 
actually occurred.
12 
As appellant recognized, defects in the timber accounted for a significant decrease in 
the volume of the sawtimber.  When appellant first raised an alleged lower volume harvest 
with the FS, it posited that excessive red rot and ring shake were the probable causes of the 
lower volume.  To the extent that there may be a discrepancy between the FS estimated 
volumes and the volumes that were actually harvested on the Silver Fox timber sale, 
appellant has not demonstrated the cause as being other than its own judgmental error 
regarding quality and quantity.  The Adjustment for Quantity Errors clause provides that 
“[n]o adjustments in quantity shall be made for variations in accuracy resulting from planned 
sampling and measuring methods or judgments of timber quality or defect.”  Carr , 08-2 BCA 
at 167,699.  
The various figures, measurements, and comparisons urged by appellant are not 
persuasive in establishing the actual volume of timber available under the contract or that any 
specific errors occurred which would entitle appellant to recover under the clause.  Much of 
the data pointed to by appellant was confusing and unconvincing, and contained 
discrepancies that were never fully explained or able to be reconciled by the record. 
Appellant has provided no compelling evidence accounting for timber quality and defects. 
The Board finds that alleged volume shortfalls reasonably could be attributable to the timber 
quality and defects such as rot.  It appears to us that appellant anticipated fewer defects and 
better quality timber than was present in the sale area. 
Breach of contract 
12   We consider the information from the stump count conducted by the FS in August 
2007 on units 10 and 13, covering approximately thirty-one acres, not to be compelling 
evidence of error in the overall tree count because this limited survey failed to prove that the 
tree count for the sale area as a whole was incorrect and also provided no means of 
quantifying how purported errors in the tree count impacted volume recovery.  Moreover, the 
lower figures attained during the stump count may reflect that stumps were covered or 
otherwise not counted, and there was no assurance that all designated trees were cut. 

  
    
  
   
 
   
   
       
    
    
 
 
  
 
  
    
 
 
 
 
 
   
 
 
  
22 CBCA 895 
Aside from its arguments stemming from volume deficiencies and the applicability 
of the Adjustment for Quantity Errors clause, appellant posits that the FS breached the 
contract because it “did not follow numerous significant provisions” of the FS Timber 
Cruising Handbook, and this failure “resulted in quantities of timber for which [appellant] 
was charged under the contract, but which did not exist.”  We note at the outset of this 
discussion that the purchaser signed a disclaimer holding the FS “harmless for any error, 
mistake, or negligence regarding estimates except as expressly warranted against in the 
sample contract.”  A FS breach of contract was found when the contract expressly stated that 
the agency had followed the FS Timber Cruising Handbook but, in fact, it did not abide by 
material handbook provisions.  Cleereman, 02-1 BCA ¶ 31,664, at 156,449.  Here, as the FS 
did not contractually commit to conduct the cruise or check cruise in accordance with the FS 
Timber Cruising Handbook, we cannot find that the FS breached a contractual provision.  
Protocols in the FS manuals and handbooks do not create extra-contractual rights, and 
breach of internal FS policies that have not been incorporated into a contract do not serve as 
a basis for a claim of government breach. The Federal Circuit has held that a FS violation 
of a statutory obligation does not, by itself, establish a breach of contract unless the statutory 
obligation is incorporated into the contract.  Scott Timber Co. v. United States , 333 F.3d 
1358, 1369 (Fed. Cir. 2003). The FS manuals and handbooks are general rules of practice, 
primarily for internal guidance, that do not automatically not extend rights to purchasers. 
Carr , 08-2 BCA ¶ 33,883, at 167,698-99; see also Rich Macauley , AGBCA 2000-155-3, 
01-1 BCA ¶ 31,350; Kearney Logging & Sawmill, Inc. , AGBCA 86-247-3, 87-1 BCA ¶ 
19,488.  Expressly incorporating a handbook into a contract produces a different result. 
Cleereman, 02-1 BCA ¶ 31,829, at 157,264 (in finding that the contract had been breached, 
the opinion noted that if the FS did not intend to commit to strictly follow the dictates of the 
FS Timber Cruising Handbook, it should not contractually guarantee that it had followed the 
handbook procedures in reaching its estimates).  The contract before us does not state that 
the volume estimates were determined using FS Timber Cruising Handbook procedures.  The 
limited contractual language found in the present case distinguishes this matter from 
Cleereman.  Since the FS did not contractually commit to having conducted the cruise or 
check cruise in accordance with the FS Timber Cruising Handbook, the FS did not mislead 
this appellant or breach the contract. 
Apart from its failure to identify a contract provision the FS breached, the appellant 
has identified, at best, minor, non-material violations of the FS Timber Cruising Handbook. 
We found the cruisers certified and the check cruise adequate, even though the check cruise 
contractor failed to fully comply with the terms of its contract.  However, even had we not 
made these findings, we would find no breach because appellant failed to prove the estimates 
were erroneous and that the alleged errors caused or contributed to faulty FS estimates.  We 

     
     
   
 
 
 
            
   
   
  
 
   
   
      
23 CBCA 895 
also saw no evidence that the FS acted in some way that might have breached the contract, 
particularly in light of the disclaimers appellant executed. In sum, appellant has provided no 
nexus between any alleged volume estimation errors and actions or inactions on the part of 
the FS. 
Mutual mistake 
Appellant also asserts it is entitled to equitable relief based on mutual mistake.  The 
elements of mutual mistake of fact that would, if proven, allow for relief include: 
(1) the parties to the contract were mistaken in their belief regarding an 
existing fact; (2) that mistaken belief constituted a basic assumption 
underlying the contract; (3) the mistake had a material effect on the bargain; 
and (4) the contract did not put the risk of mistake on the party seeking 
reformation. 
CH2M Hill Hanford Group, Inc. v. Department of Energy , CBCA 708, 08-2 BCA ¶ 33,871, 
at 167,666 (citing Dairyland Power Cooperative v. United States , 16 F.3d 1197, 1202 (Fed. 
Cir. 1994); Atlas Corp. v. United States , 895 F.2d 745, 750 (Fed. Cir. 1990)). 
To recover based on mutual mistake, both parties must be mistaken as to the same 
fact.  Roseburg Lumber Co. v. Madigan, 978 F.2d 660, 669 (Fed. Cir. 1992).  Where the FS 
makes clear throughout the contract that it is not warranting the volume estimate and that the 
purchaser was assuming risks, even if the estimate was in error, appellant is unable to 
establish a mutual mistake of fact.  Id.  Appellant has failed to provide any compelling 
evidence that it is entitled to equitable relief based on mutual mistake.  
Appellant’s arguments regarding road construction costs, legal fees incurred prior to 
this litigation, and “such other legal and equitable relief as is just, including reformation of 
the contract price for cut portions and rescission of the uncut cutting payment units of the 
contract,” have also been fully considered by the Board and found to be without merit. 
Decision 
Appellant has not proved it is entitled to relief from the contract. The appeal is 
DENIED . 

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24 CBCA 895 
PATRICIA J. SHERIDAN 
Board Judge 
I concur: 
JOSEPH A. VERGILIO 
Board Judge 

     
   
  
             
  
  
  
 
 
 
   
 
  
  
25 CBCA 895 
McCANN,  Board Judge, concurring. 
This appeal arises out of a timber sale contract. This case is actually quite simple  and 
can be decided without the lengthy recitation of facts and most of the analysis in the 
majority’s opinion.  I find much of the analysis confusing and would decide the case as 
follows. 
The appellant claims it is entitled to compensation because of incorrect timber volume 
estimates contained in the contract. I would deny the appeal because appellant has not 
proven that the estimates were defective.  
Findings of Fact 
The FS issued a bid advertisement for the Silver Fox timber sale on September 1, 
2005.  The advertisement showed that there was an estimated volume of 1058 CCF of black 
cherry sawtimber, 16 CCF of beech sawtimber, 6765 CCF of red maple sawtimber and 1209 
CCF of pulpwood.  On October 31, 2005, Cochran submitted a bid.  This bid offered to 
purchase the various kinds of timber at a specified rate for each kind of wood.  The total 
amount of the bid was $1,030,307.30.   On January 3, 2006, the FS awarded contract 
02-153346 to Cochran in the bid amount. 
Cochran commenced harvesting timber in January 2006.  At a meeting held on 
August 17, 2006, Cochran asserted that the FS had breached the contract by failing to follow 
its own protocol when estimating the timber volume and had, as a result, overstated the 
timber volume for the sale.  
On December 21, 2006, Cochran’s attorney wrote to the contracting officer asserting 
that Cochran was entitled to a reduction in the FS billing based upon the Adjustment for 
Quantity Errors clause and mutual mistake.  Appeal File, Exhibit 33.  At a meeting on 
March 1, 2007, Mr. Cochran indicated that Cochran had stopped harvesting, said that it did 
not have the financial resources to complete performance, and asked that the contract be 
terminated. Appeal File, Exhibits 37, 52.  
On May 4, 2007, Cochran submitted a certified claim seeking $436,330.00 in breach 
damages, or alternatively $221,629.78 for correction or reformation of the contract payment 
amounts for the units it had harvested, which was about half the units (units 8 through 13, 
16 through 23, 24A, and 30). Appeal File, Exhibit 47.  Cochran also sought a reduction in 
the $23,850.91 it alleges the FS had billed it for road construction, reimbursement of 
$8900.51 in legal fees and costs, and termination of the contract. On August 24, 2007, the 
contracting officer denied Cochran’s claim.  

   
   
 
   
 
  
  
      
    
  
     
 
 
  
 
 
  
       
  
          
    
26CBCA 895 
Discussion 
Cochran has predicated all theories supporting its claims against the FS on the ground 
that the timber estimates set forth in the contract for the Silver Fox timber sale were 
excessive.  Cochran arrived at its claimed difference between the FS estimates and its actuals 
by subtracting the BDFT of black cherry and red maple that Cochran had actually reaped, 
from the BDFT of black cherry and red maple contained in the prospectus.
1   Appeal File, 
Exhibit 20.  It then converted this BDFT difference into a CCF difference by the use of an 
unknown conversion factor.  Finally, it multiplied this CCF difference by the bid price per 
CCF to arrive at the amount of its claim.  Id ., Exhibit 47. 
Cochran’s calculation is invalid because the prospectus’ BDFT estimates of timber 
are calculated in International scale and the actual amount of timber that Cochran harvested 
was calculated in Doyle scale, the scale used by the lumber mills.  The two log scales are 
distinctly different and lead to distinctly different amounts of BDFT when converting timber 
scaled in CCF to BDFT.  Carr Forest Products, Inc. v. Department of Agriculture , CBCA 
588, 08-2 BCA ¶ 33,883, at 167,700.  To subtract timber scaled in one scale from timber 
scaled in another scale is like subtracting apples from oranges.  It simply cannot be done. 
Any attempt to do so is patently invalid. 
This defect in Cochran’s claim was pointed out in the contracting officer’s decision 
dated August 24, 2007.  Appeal File, Exhibit 52.  In fact, the contracting officer went into 
great detail regarding the differences in the two scales and how using two different scales 
would lead to wildly different and inflated results.  The contracting officer indicated that this 
difference could be as much as forty percent.  Cochran has not attempted to rebut the 
contracting officer’s finding.  Thus, we have an unrebutted finding of a fatal flaw in 
Cochran’s claim.  I see no reason to question the contracting officer’s finding on this issue. 
Regardless, in its complaint filed November 5, 2007, Cochran maintained its original 
position that used two different scaling methodologies to arrive at the alleged timber volume 
shortfall.  However, in January 2008, Cochran submitted additional calculations of timber 
volumes to the contracting officer. Appellant’s Supplemental Appeal File, Exhibit 17. 
Along with the January calculations, Cochran submitted electronically generated log scaling 
sheets that show the dimensions of the harvested logs, with accompanying Doyle scale and 
International scale values for each log. The cover sheet is a table that purportedly shows the 
1   This BDFT figure is not found in the contract.  The contract is written entirely in 
CCF.  The prospectus, however, contained an estimate in both CCF and BDFT (in 
International scale).  

 
   
   
 
    
 
  
  
 
   
 
 
 
 
 
 
   
 
  
     
27CBCA 895 
total volumes for all the harvested logs in Doyle and International scales and the Government 
estimates from the prospectus in International scale.  On the cover sheet was a calculation 
subtracting Cochran’s International scale total from the Government’s total estimate in 
International scale for the harvested units. The calculation showed that Cochran’s volume 
in International scale was 16.5% less than that shown in the prospectus. 
The FS does not accept this conversion and calculation, and Cochran has not 
explained how it arrived at its figures.  Cochran alleges that its calculation is based upon 
harvested log measurements contained in the scaling sheets.  How Cochran arrived at these 
International scale figures from these measurements is unknown.  The conversion factor, if 
one was used, also is unknown.  Further unknowns include the accuracy of Cochran’s 
measurements, whether or not defects had been removed prior to measuring, the 
completeness of the scaling sheets, and whether figures from unit 24, which was not 
completely harvested, should be included.  Accordingly, the accuracy of this calculation is 
very suspect.  
After making its January submission, Cochran requested that the FS calculate the CCF 
volumes for the timber that Cochran had removed from the site from the scaling sheets 
contained in its January submission.  Respondent’s Rule 19 Submission, Attachment E. 
Mr. Michael Van Dyck, the Regional Measurement Specialist for the FS, performed this 
calculation.  In his calculation dated February 1, 2008, Mr. Van Dyck found that the CCF 
volume that had been harvested by Cochran constituted at least 92% of the estimated 
quantities contained in the contract.  Respondent’s Supplemental Appeal File, Exhibit 60. 
Mr. Van Dyck noted that he had no way of knowing whether all of the logs Cochran had 
harvested had been included in the sheets, or whether defects had been removed from the 
logs before the sheets had been tallied.
2   Subsequently, in his April 28, 2008, declaration, Mr. 
Van Dyck noted that 184 sawlogs had been omitted from the data that Cochran had supplied 
to him in January.  Respondent’s Rule 19 Submission, Attachment E.  With the addition of 
these logs, Mr. Van Dyck indicated that it is likely that there was little, if any, discrepancy 
between the black cherry estimates and what was actually harvested.
3 
Cochran also argues that it did a calculation in CCF and arrived at a shortfall of 
22.65% between the contract estimates and what was actually harvested.  It claims that this 
calculation is based upon Appellant’s Supplemental Appeal File, Exhibit 18, and is 
2   If defects had been removed this would reduce the CCF volume reflected on the 
tally sheets. 
3   Mr. Van Dyck did not perform a calculation for red maple, as Cochran submitted 
three sets of data and Mr. Van Dyck could not determine what data was correct. 

 
   
     
 
    
  
  
 
 
 
 
    
 
 
  
  
 
    
  
   
 
   
    
    
 
 
  
28CBCA 895 
summarized in Attachment 4 to Appellant’s Rule 19 Submission.  Appellant’s Rule 19 
Submission at 27.  Exhibit 18 is over 100 pages of mostly handwritten documents chock-full 
of numbers ostensibly written by personnel at various lumber mills, with no summary or 
conclusion attached.  Attachment 4 to Appellant’s Rule 19 Submission is the first attempt by 
Cochran to make any sense out of Exhibit 18. It seemingly arrives at conclusions based on 
the mill records contained in Exhibit 18.  As it was submitted along with Appellant’s Rule 
19 Submission, it has not been reviewed by the contracting officer.  This 22.65% calculation 
submitted so late in the proceeding cannot be given credibility. We simply have no reason 
to believe that it is based on accurate or complete data and we have no way of determining 
whether any of the calculations going into it are correct.   
Based upon the evidence presented, I conclude that Cochran has failed to establish 
with reasonable certainty that there was any discrepancy between the estimates in the contract 
and what was actually harvested.  I find Mr. Van Dyck’s calculations done in CCF more 
reliable and compelling than Cochran’s done in International scale. This is especially true 
where, as here, the contract estimates were done in CCF. The fact that Cochran has not 
disputed Mr. Van Dyck’s calculation is also telling. It had ample time to do so, but chose not 
to.  Instead, it did its own calculation in CCF.  We have no way of judging the differences 
between Mr. Van Dyck’s calculation done in CCF based on log measurements and Cochran’s 
late calculations done in CCF seemingly based on mill data.  Again, I find Mr. Van Dyck’s 
calculation to be more reliable. In addition, all of Cochran’s arguments and calculations are 
unreliable because they are based upon only the harvested units which comprise about one-
half of the total units.  Cochran has made no attempt to account for the timber on the other 
half.  In addition, the information and data supplied by Cochran are generally 
unsubstantiated, arguably incomplete, generally unexplained, disjointed, and confusing. 
Cochran simply has not adequately supported its claim.
4 
4   As part of its claim to the contracting officer, Cochran also submitted a calculation 
of damages based upon an alleged discrepancy between what the contract indicated would 
be the difference between the gross and net volumes of black cherry timber due to defect and 
what Cochran actually found to be the difference due to defect.  The contracting officer 
indicated that he found this claim to be very confusing. Accordingly, he restated Cochran’s 
claim in an attempt to make sense out of it and to reflect what he thought Cochran was trying 
to contend.  Then he explained why Cochran’s claim, as he had restated it, lacked validity. 
I commend the contracting officer for his efforts, as I too find this part of Cochran’s claim 
to be unintelligible.  I cannot tell whether the contracting officer restated it correctly and in 
accordance with Cochran’s intent.  Since the claim is unintelligible, Cochran has not met its 
burden of proof.  

 
    
    
 
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29 CBCA 895 
On the basis of erroneous estimates contained in the contract, Cochran contends that 
it is entitled to recovery under a number of alternative theories.  However, since Cochran has 
not demonstrated that the contract estimates were incorrect, we need not pursue these 
theories.  Cochran’s claim fails. 
R. ANTHONY McCANN 
Board Judge