DENIED: April 15, 2010 
CBCA 1888 
COOPER CONTRACTING INC., 
Appellant, 
v. 
DEPARTMENT OF AGRICULTURE, 
Respondent. 
Paul and Laureen Cooper of Cooper Contracting Inc., Monument, OR, appearing for 
Appellant. 
Zoey L. Kohn, Office of the General Counsel, Department of Agriculture, Portland, 
OR, counsel for Respondent. 
VERGILIO , Board Judge. 
On February 16, 2010, the Board received from Cooper Contracting Inc. (contractor) 
a notice of appeal disputing a contracting officer’s decision dated December 7, 2009.  The 
contractor provided a fire engine and operators under an emergency equipment rental 
agreement (EERA) with the Department of Agriculture, Forest Service (Government).  For 
damage to furnished equipment, the contract limits the Government’s liability to instances 
when the damage results “from the negligence, or wrongful act(s) of Government 
employee(s) while acting within the scope of their employment.”  During performance, while 
a contractor employee drove, a tree(s) fell on and damaged the fire engine.  The contractor 
maintains that the Government employee directing operations was negligent in his actions, 
such that the Government is liable. The dispute concerns the interpretation and application 
of the contract and clause. 
The contractor timely brings this appeal pursuant to the Contract Disputes Act of 
1978, as amended, 41 U.S.C. §§ 601-613 (2006). The contractor has elected the small claims 

  
    
   
 
 
   
 
 
 
    
 
2 CBCA 1888 
procedure, such that this decision binds the parties but does not establish precedent.  41 
U.S.C. § 608; Rule 52. 
On April 8, during a telephone conference the presiding judge and parties discussed 
the facts and applicable law.  The presiding judge rendered a decision, here reduced to 
writing.  The record establishes neither a negligent nor a wrongful act of a Government 
employee.  The contractor, not the Government, bears the risk of the damage that occurred. 
The Board denies the contractor’s claim to be paid $7542.20. 
Findings of Fact 
1. Pursuant to an EERA, the contractor provided a fire engine and operators at 
the Tumblebug Complex Fire in the Willamette National Forest, Oregon.  Exhibit 3 (all 
exhibits are in the appeal file).  A provision of the agreement specifies: 
Equipment furnished under this agreement may be operated and subjected to 
extreme environmental and/or strenuous operating conditions which could 
include but [are] not limited to unimproved roads, steep, rocky, hilly terrain, 
dust, heat, and smokey conditions. As a result by entering into this agreement, 
the contractor agrees that what is considered wear and tear under this 
agreement is in excess of what the equipment is subjected to under normal 
operations and is reflected in the rates paid for the equipment.  When such 
equipment is furnished to the Government, the following clauses shall apply. 
Exhibit 1 at 38. 
2. There follows a Loss, Damage, or Destruction clause, including the following 
provision: 
(b) For equipment furnished under this EERA with operator, the 
Government shall not be liable for any loss, damage, or destruction of such 
equipment, except for loss damage or destruction resulting from the 
negligence, or wrongful act(s) of Government employee(s) while acting within 
the scope of their employment.  The operator is responsible for operating the 
equipment within its operating limits and responsible for safety of the 
equipment. 
Exhibit 1 at 39 (clause 9). 

    
        
           
  
   
  
  
 
  
      
 
    
 
 
3 CBCA 1888 
3. With a contractor employee operating the vehicle under the direction of a 
Government employee, a tree or trees fell on and damaged the vehicle.  In the notice of 
appeal, the contractor describes the incident: 
In this matter we were told by our Strike team leader (the government 
employee) to go down this particular road. We were on a night shift, this shift 
is a hazard to begin with. It was an extremely windy night. We were one of 
three contractors in our strike team of five engines who had trees hit and 
damage their trucks.  We are really lucky no people were hurt. 
. . . . 
This resulted in the damage created to our truck by the tree falling on 
it. In my opinion we shouldn’t have been there. The government employee 
should have pulled us out of that area and let the winds die down before we 
went back to the work in that area. 
4. In a declaration, the Government assistant fire management officer, who was 
the night operations section chief working the fire at the time of the damage, relates his 
version of the circumstances at the fire and of the incident: there was little or no wind, and 
no reason to expect that a green tree (as fell on the contractor’s truck) would fall; the only 
trees to fall were those two that fell on or near the contractor’s vehicle.  Exhibit 7.  The 
reports for the morning do not indicate high winds or unusual conditions.  Exhibit 4. 
5. The contractor submitted a claim to recover a total of $7542.20; that is, 
$6792.20 for damage to the vehicle (supported by a preliminary estimate) and $750 for 
otherwise unquantified inconvenience and time. Exhibit 5. By decision dated December 7, 
2009, the contracting officer denied the claim.  The decision references the above-quoted 
clauses.  The contracting officer determines that the Government employee was not negligent 
and did not commit a wrongful act, and concludes that the contractor cannot recover the 
amount for damages. Regarding the $750, the contracting officer states that the Government 
is prohibited from reimbursing contractors for something the Government did not receive. 
Treating the costs as anticipatory profits, the contracting officer states that reimbursement 
is not allowed.  Exhibit 6. 
6. This appeal ensued, filed within ninety days of receipt of the contracting 
officer’s decision. 

  
   
     
  
  
  
         
   
 
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4 CBCA 1888 
Discussion 
The contract expressly addresses liability for damages to owner-operated equipment. 
The unambiguous contract provision dictates that the “Government shall not be liable for any 
loss, damage, or destruction of such equipment, except for loss damage or destruction 
resulting from the negligence, or wrongful act(s) of Government employee(s) while acting 
within the scope of their employment.” 
The contractor contends that the Government employee was negligent in directing the 
operator to proceed under the existing conditions. The contractor bears the burden of proof 
to recover. 
The scenario described in the notice of appeal, Finding 3, by itself does not support 
a conclusion that a Government employee acted negligently or wrongly. More particular or 
conclusive findings, based on the record as a whole, would be less favorable to the 
contractor, and, therefore, are unnecessary for the Board to reach its conclusions.  The record 
does not demonstrate that the Government employee acted negligently or wrongly at the fire, 
in directing the operator of the fire truck or otherwise. An accident occurred.  A tree(s) fell 
on the truck; damage occurred without the fault or negligence of the Government.  The 
Government is not liable for the damage to the vehicle. 
Under the contract, the contractor bears the risk for the damage to the vehicle.  The 
Government is not liable for the claimed costs of repair and associated costs that the 
contractor seeks to recover. 
Decision 
The Board DENIES  this appeal. 
JOSEPH A. VERGILIO 
Board Judge