MOTION FOR RECONSIDERATION DENIED: September 26, 2013
CBCA 2427-R
EM LOGGING,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
R. Allan Payne and Hollie Lund of Doney Crowley Payne Bloomquist P.C., Helena,
MT, counsel for Appellant.
Jennifer T. Newbold, Office of the General Counsel, Department of Agriculture,
Missoula, MT, counsel for Respondent.
Before Board Judges VERGILIO, McCANN, and STEEL.
Opinion for the Board by Board Judge VERGILIO.  Board Judge McCANN concurs
separately.
VERGILIO, Board Judge.
On June 18, 2013, the Board received from EM Logging (purchaser) a motion for
reconsideration of the Board’s decision denying its appeal in a matter involving the United
States Department of Agriculture, Forest Service (agency), EM Logging v. Department of
Agriculture, CBCA 2427, 13 BCA ¶ 35,350.  In particular, the purchaser maintains that the
Board cannot base its decision on evidence in the record that was not discussed during the
trial or in the briefs of either party; specifically this relates to the agency order establishing
weight limitations in the particular forest and to vehicle registrations.  Further, the purchaser
contends that various factual conclusions are not supported by the record.  This assertion
relates to the repeated violations of the maximum weight limitation, failures to utilize
approved haul routes, violations of the twelve-hour hauling limitations, and violations of the


CBCA 2427-R 2
snow plowing requirements.  The agency opposes the motion, stating first that the
purchaser’s position regarding documents in the record is incorrect and contrary to Board
Rule 4(g) (48 CFR 6101.4 (2012)), and second that the purchaser has neither met nor
discussed the standard for reconsideration, Rule 26 (48 CFR 6101.26), as the purchaser
simply makes different factual conclusions based upon its view of the record, while the
record amply supports the conclusion regarding the repeated violations by the purchaser.
As the agency points out, the purchaser’s motion for reconsideration (1) incorrectly
concludes that the Board is limited in its reliance on information in the evidentiary record and
(2) fails to satisfy the basic standards to obtain reconsideration.
The record contains an agency report regarding its investigation of various offenses
by the purchaser, specifically including the weight limitations.  Appeal File, Exhibit RE-104-
582.  The investigative report includes the Forest Service order that prohibits operating a
vehicle in excess of 80,000 pounds gross vehicle weight, Exhibit RE-151, and notes that the
report writer found no documentation that indicates that the order had been rescinded or
revoked.  The Board determined that the order established a maximum weight for trucks
using the Forest Service roads used by the purchaser in performing the contract.  As the
agency notes, the document is in the record, without objection by the purchaser.  That neither
party directly addressed the document in briefing or during the hearing makes it no less
relevant to this dispute.  The purchaser has provided no support for its assertion that the
Board’s de novo review of the evidentiary record is restricted by the briefs and trial
testimony.
Regarding the second aspect of the motion, the purchaser views the record and draws
conclusions at odds with the majority of the panel.  The instances of the variety of violations
are well-documented in the record and highlighted in the opinion.  The motion offers no basis
to revisit the opinion or decision, in which the Board concluded that the “purchaser’s actions
with respect to violating the requirements for load limits, notice of delays, and haul routes,
each independently establish a basis that alone supports the termination for breach.”  13 BCA
at 173,503-04.  The motion adds little to the views expressed in the dissent of the judge who
presided at the hearing and oversaw the development of the record, all matters expressly
considered in the process of denying the appeal in question.
The Board DENIES THE MOTION FOR RECONSIDERATION.
______________________________
JOSEPH A. VERGILIO
Board Judge

CBCA 2427-R 3
I concur:
____________________________
CANDIDA S. STEEL
Board Judge
McCANN, Board Judge, concurring.
While I issued a detailed dissent to the decision on the merits in this appeal, I agree
with the majority that the appellant’s motion for reconsideration does not state grounds for
reconsideration.  
With regard to the decision on the motion, the majority again refers to an investigative
report of an overweight incident, prepared over a year after the incident, which includes an
order signed by the Forest Supervisor on February 24, 1986, some twenty-seven years earlier. 
That order prohibited the operation of vehicles weighing in excess of 80,000 pounds from
operating in the Kootenai National Forest.  As I indicated in my dissent, much evidence
suggests that the order had not been in effect for a number of years, and was not being
enforced by the contracting officer.  This evidence includes the fact that the contracting
officer determined that the purchaser had violated vehicle weight limitations of 80,000
pounds (sometimes) and 84,500 pounds (other times), and testified that the Montana Gross
Vehicle Weight Chart applied, without mentioning the order.  
The majority also states: “The instances of the variety of violations are well-
documented in the record and highlighted in the opinion.”  As I indicated in my dissent, I
disagree with this conclusion. 
_______________________
R. ANTHONY McCANN
Board Judge