GRANTED:  November 21, 2018
CBCA 6078
OUTBACK FIREFIGHTING, INC.,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
Jeremiah Nuttall, President of Outback Firefighting, Inc., Corvallis, MT, appearing
for Appellant.
Jennifer T. Newbold, Office of the General Counsel, Department of Agriculture,
Missoula, MT, counsel for Respondent.
Before Board Judges BEARDSLEY, SULLIVAN, and LESTER.
SULLIVAN, Board Judge.
Outback Firefighting, Inc. (Outback) appeals the contracting officer’s decision
denying its claim for costs to repair damaged equipment rented by the Forest Service,
Department of Agriculture (Forest Service).  The parties seek a decision on the record,


CBCA 6078 2
pursuant to Rule 19.  48 CFR 6101.19 (2017).1  Because the Forest Service bore the risk of
damage to the equipment pursuant to the terms of the contract, we grant the appeal.  
Background
The Forest Service rented from Outback several tents and other equipment for use
during firefighting operations in August 2017 under an emergency equipment rental
agreement (EERA).  Pursuant to this agreement, Outback was to be paid for the rental of this
equipment from the time it left to the time it returned to Outback’s facility.  Appeal File at
6 (clause 2, Time Under Hire).  The agreement assigns to the Government risk of loss,
damage, or destruction of the equipment provided without an operator, unless one of three
exceptions applies:
Loss, Damage, or Destruction:
(a) For equipment furnished under [the agreement] without operator, the
Government will assume liability for any loss, damage, or destruction of such
equipment, except that no reimbursement will be made for loss, damage or
destruction due to (1) ordinary wear and tear, (2) mechanical failure, (3) the
fault or negligence of the Contractor or the Contractor’s agents or employees
or Government employee owned and operated equipment.
Id. at 7 (clause 9).  Outback provided the equipment without an operator.    
On August 30, 2017, one of Outback’s tents was damaged when a severe windstorm
blew through the camp where the tents were set up.  In its submission, Outback provided
statements from employees explaining that Outback personnel were at the camp to remove
the tents after the Forest Service had left the camp but had not begun to remove the stakes
that secured the tents when the storm hit.  These employees further stated that they secured
the stakes as quickly as they could, but the wind continued to pull the stakes out of the
1 On September 17, 2018, the Board adopted new rules of procedure, Rule 1(a)
of which provides that the presiding judge may decide whether to apply the new rules to any
case pending before the Board on that date.  See 83 Fed. Reg. 41,009, 41,010 (Aug. 17,
2018).  Because the parties elected to submit this appeal for a decision on the record and
there will be no further proceedings in this appeal, the Board applies the Board’s old rules
to this appeal.   

CBCA 6078 3
ground.2  The Forest Service acknowledges that there were no government personnel at the
camp site when the storm arose.  
Outback submitted a claim to the contracting officer on September 9, 2017, seeking
$5947.57, the cost to repair the damage to the tent frame.  Outback provided supporting
invoices and pictures documenting the damage with its claim.  The Forest Service does not
dispute that the tent was damaged in the windstorm or that Outback incurred the costs
claimed.    
In October 2017, the contracting officer issued a document titled “determination and
findings” in response to Outback’s claim.  Appeal File at 1–2.  In February 2018, the
contracting officer issued a decision in which he added language notifying Outback of its
appeal rights to the prior determination regarding Outback’s claim.  Id. at 27, 31.  In March
2018, Outback timely appealed the contracting officer’s decision.  
Analysis
The Board possesses jurisdiction to decide this appeal from the contracting officer’s
February 2018 decision.  41 U.S.C. § 7104(a) (2012).  The clock for the ninety-day appeal
deadline began to run when the contracting officer issued a final decision containing the
appeal notice information that the Contract Disputes Act requires.  See Pathman
Construction Co. v. United States, 817 F.2d 1573, 1578 (Fed. Cir. 1987) (“A contracting
officer’s final decision that does not give the contractor adequate notice of its appeal rights
is defective and therefore does not trigger the running of the limitations period.”); George
Ledford Construction, Inc., VABCA 6630, et al., 02-1 BCA ¶ 31,662, at 156,442 (2001).  
In damaged equipment claims arising under EERA contracts, the contractor must
establish the facts of liability, causation, and resultant injury.  Great Bear Transport LLC v.
Department of Agriculture, CBCA 697, 08-1 BCA ¶ 33,808, at 167,357; Harvey, AGBCA 
82-152-1, 87-1 BCA ¶ 19,577, at 99,004 (citing Wunderlich Contracting Co. v. United
States, 351 F.2d 956, 968 (Ct. Cl. 1965)).  If and when the contractor meets its burden, the
burden shifts to the Government to prove that the loss, damage, or destruction was caused
2 The Board authorized the parties to undertake discovery, and Outback sought
from counsel for the Forest Service the names of other equipment providers who were at the
site when the storm arose.  It appears that the Forest Service never responded to Outback’s
discovery request, so Outback was unable to provide further support for its submission to the
Board.   

CBCA 6078 4
by (1) ordinary wear and tear, (2) mechanical failure, or (3) the fault or negligence of the
contractor or the contractor’s agents.  Great Bear, 08-1 BCA at 167,357. 
Outback proved that the tent was damaged in the windstorm and proved its costs
incurred to repair that damage.  Thus, Outback has met its burden to prove liability,
causation, and resulting damages.  We now examine whether the Government avoids liability
by operation of one of the three exceptions.  
The Government is not liable for losses that result from ordinary “wear and tear” on
the equipment.  “Wear and tear” in EERA contracts is interpreted to mean conditions that 
“the equipment is subjected to under normal conditions and is reflected in the rates paid for
the equipment.”  Great Bear, 08-1 BCA at 167,357.  Based upon Outback’s description, the
windstorm was severe and unlike the conditions in which its equipment could be expected
to be used.  Accordingly, we do not find that the damage was the result of ordinary wear and
tear on the equipment.   
The Government is also not liable for losses that result from mechanical failure.  The
Forest Service asserts that this exception should be interpreted to allow it to avoid liability
in this case.   While mechanical failure is not defined in the EERA contract, damage from
a severe weather event is not analogous to damage occurring because of a mechanical failure. 
A contractor’s failure to perform as the result of a mechanical failure will not be excused
because performing with adequate equipment is the essence of a contract and within the
control of the contractor.  Paris Brothers, Inc. v. Department of Agriculture, CBCA 932, 08-
2 BCA ¶ 33,991, at 168,108.  In contrast, a contractor’s failure to perform as the result of an
act of God or unusually severe weather will be excused because the cause is beyond the
control of the contractor.  48 CFR 52.249-14 (a).
The Government is not liable for losses that occur as the result of negligence by the
contractor or its employees.  In the final decision, the contracting officer suggested that the
tent was improperly secured, but the Forest Service acknowledges that its personnel were not
present at the time of the wind storm and provides no other evidence of negligence on the
part of Outback.  Outback submitted statements explaining that when the windstorm arose,
its personnel had not yet begun demobilizing the tents.  Outback’s crew tried unsuccessfully
to secure the tents further as the wind pulled the stakes out of the ground.  The Board finds
no basis for a finding of negligence on this record.  
Finally, the Forest Service suggests that it is not responsible for the damage because
the equipment had been released to Outback for pick up from the site.  Pursuant to clause 2,
Time of Hire, the Forest Service pays Outback for the equipment from the time it leaves to
the time it returns to Outback’s facility, the point of hire.  Moreover, the release of the

CBCA 6078 5
equipment and the return to the point of hire are two different events in this clause.  By
operation of this clause, the Forest Service remains responsible for payment and any damage
to the equipment after the time the equipment is released to Outback.    
Decision
The appeal is GRANTED.  The Forest Service shall pay Outback $5947.57, plus
interest calculated from the date that Outback filed its claim on September 9, 2017, in
accordance with the Contract Disputes Act, 41 U.S.C. § 7109.       
   Marian E. Sullivan          
MARIAN E. SULLIVAN
Board Judge
We concur:
    Erica S. Beardsley              Harold D. Lester, Jr.      
ERICA S. BEARDSLEY HAROLD D. LESTER, JR.
Board Judge Board Judge