DENIED:  June 13, 2008
 
CBCA 588
 
CARR FOREST PRODUCTS, INC.,
 
Appellant, 
v. 
DEPARTMENT OF AGRICULTURE, 
Respondent. 
Keith L. Baker and William T. Welch of Barton, Baker, McMahon & Tolle, McLean, 
VA, counsel for Appellant. 
Ronald Mulach, Office of the General Counsel, Department of Agriculture, 
Milwaukee, WI, counsel for Respondent. 
Before Board Judges DANIELS (Chairman), HYATT, and  POLLACK . 
POLLACK, Board Judge. 
This appeal arises out of contract no. 02-152736, Windy City Salvage Timber Sale 
(Windy City or sale), a fixed sum timber sale, between the United States Department of 
Agriculture, Forest Service, Allegheny National Forest (FS, ANF or respondent), and Carr 
Forest Products, Inc. (appellant or Carr).  The sale was priced on the basis of the estimated 
volumes and as such was not dependent on the actual amount of timber removed.  Appellant 
seeks the following relief: (1) a contract adjustment pursuant to the Adjustment for Quantity 
Error clause of the contract (BT2.43), (2) breach damages, and (3) equitable rescission of 
the uncut blocks of the contract (reformation on the basis of mutual mistake).  This case was 
submitted for decision on the written record.  Appellant has asked the Board to strike 

 
  
 
       
 
      
   
     
 
     
            
    
       
 
 
   
 
  
 
 
 
 
  
2 CBCA 588 
portions of the Declaration of Michael Van Dyck (Oct. 24, 2007), which was submitted by 
the respondent with its opening brief.  Appellant contends that Mr. Van Dyck admitted in 
a deposition in a related case (deposition testimony attached to the motion) that Mr. Van 
Dyck did not review any documents concerning the sale, other than the original “generic 
cruise” plan and the results of the second check cruise.  Appellant seeks $86,286 under 
BT2.43 and, alternatively, $199,000 for breach. 
Appellant, in making its claim as to breach, has not coupled a specific portion of the 
claimed volume underrun to a specifically identified procedural failure by the FS.  Instead, 
appellant’s claim is based on what appears to be overall breach of duty or negligence by the 
FS which appellant claims entitles it to an adjustment for the entire claimed underrun. 
Basically, appellant is asserting that the claimed underrun itself is evidence of the breach or 
negligence claimed. 
Facts 
1. A severe wind event occurred in 2003, resulting in damaged and blown down 
timber in the Allegheny National Forest, located in northwestern Pennsylvania.  This sale was 
offered to deal with the affected timber.  Appeal File, Exhibits 1-9.  The sale area to be 
harvested was divided into eight payment units, each of which had one or more geographical 
areas identified by an alphanumeric designation. Appeal File, Exhibit 67 at 459. The sale 
was awarded to Carr on August 11, 2005. Carr harvested payment units 3, 4, 6, 7, and 8A, 
but did not harvest units 1, 2, 5, and 8B. Declaration of Randall Durner (Oct. 23, 2007) ¶ 17. 
The FS formally suspended performance on the contract through a letter of April 14, 2006, 
setting as the basis for the suspension the failure of appellant to pay an invoice for 
$99,692.68 for harvested timber.   From that time forward, Carr performed no additional 
work; it had ceased performance on the sale earlier, sometime in January 2006.  Appeal File, 
Exhibits 570-72. 
2. In preparation for the advertisement of the sale, ANF and the FS regional office 
developed a timber sale cruise plan and design for the sale. Through a cruise plan, the FS 
inventories items and features such as tree species, tree diameter, height, and defect and then 
records that data for the purpose of providing a quantity estimate for bidding.  Cruises can 
involve one hundred percent of trees or a representative sample.   The contracting officer 
(CO), Randall Durner, prepared the draft of the general cruise plan to be used on the sale. 
He had approximately thirty-six years experience in the timber industry.  Durner Declaration 
¶ 1.  He compared the cruise design to requirements set out in the FS Timber Cruising 
Handbook (FSH or Handbook) in order to assure the overall plan was consistent with the 
Handbook.  In his final decision, the CO said that FSH 2409.12 “provides agency-wide 
direction and methodology to implement timber sale cruises to established standards, under 

                                
                    
       
  
  
 
 
 
 
         
 
    
 
 
 
  
   
  
     
 
 
 
     
  
                   
3 CBCA 588 
a variety of conditions.”  He then continued that page 2 of the cruise plan for this sale, under 
CRUISE PLANNING, stated that the Handbook and amendments to it would be the primary 
reference guide and direction for the project. The timber cruise plan for this sale was both 
a specific and general document.  It provided general guidance as to sampling and measuring, 
providing that the cruiser consult the Handbook for appropriate measuring techniques for 
blown down, leaning, and broken timber.  The cruise plan also provided on page 11, under 
“Occluded Measure Trees,” that in some instances hands-on measurements would not be 
possible.  It continued that instead of locating and substituting another tree, and introducing 
bias into the sample process, the cruiser was to visually estimate  and record the measurement 
parameters of the “occluded tree” to the best of the cruiser’s ability.  As to specifics, the 
cruise plan identified the merchantability parameters for timber on this sale. The sale cruise 
plan was reviewed by Mr. Michael Van Dyck, Measurements Specialist with the Eastern 
Region of the FS, who was responsible for oversight of regional use of the national timber 
cruising program, the computer software used to calculate timber volume.  Mr. Van Dyck 
provided timber measurement advice to personnel stationed on national forests and was 
responsible for oversight of timber certification.  Appeal File, Exhibits 46, 48, 55, 699; 
Durner Declaration ¶ 3; Van Dyck Declaration ¶¶ 1-2. 
3.  In presenting its case, appellant directed the Board to a FS memorandum dated 
March 28, 2001, which included an attachment that set out cruise analysis and accuracy 
review standards to be used by the ANF on cruises.  Although the memorandum and 
attachment were  prepared well before the cruise on the Windy City sale, the FS did not deny 
that the documents reflected ANF procedures in 2004-2005.  It showed a tolerance of +/-0.2 
inches for DBH (diameter breast height).  The FS, however, qualified the application of that 
entry in practice, explaining that the information as to tolerances reflected practices with 
standing timber and not what was used by ANF for blown down salvage sales, such as the 
one in dispute.  Declaration of Randall Durner (Nov. 13, 2007) (Durner Declaration 2) ¶¶ 4­
5.  The attachment, showing tolerances, was titled “Field Measurement Evaluation” and 
identified tolerances for various cruise elements used to check the accuracy of a cruise.  Six 
tolerances were listed,  as well as “Error Weight”: 
Cruise Element               Tolerance          Error Weight 
Species  none 5 
DBH +/- 0.2 in. 1 
           Sawlog Height  none 1 
           Sawlog Defect                   +/-10%                1 
Total Height  none                       1 
Pulpwood/Topwood  +/- 10%                  1
 Defect 

 
     
   
 
   
     
            
 
   
 
     
    
         
  
  
 
         
  
 
 
4CBCA 588 
The following note was set out at the bottom of the tolerance form: “To pass this check, each 
item checked must have at least 80 percent correct and the overall accuracy must be at least 
85 percent.”  Appellant’s Supplement, Exhibit 2.  
4. Due to the unavailability of ANF personnel to mark trees and to conduct a 
cruise for the sale, ANF contracted with T.E.A.M.S Enterprise Group (TEAM) for those 
services.  The FS described TEAM as “a mobile response unit of  Forest Service employees 
trained and experienced in timber sale preparation, marking, and cruising work, available to 
National Forests.”  At the time of contracting for the cruise (July 23, 2004), TEAM was 
already performing similar work on other sales for ANF. ANF provided TEAM with the 
cruise plan for the sale.  The contract for the marking and cruising did not specifically 
reference the Handbook; however, TEAM was following the cruise plan prepared by ANF, 
which did reference that document.  Further, the Handbook was provided to TEAM at the 
initial meeting between ANF and TEAM prior to entering into a work order.  Appeal File, 
Exhibits 12, 29-35, 38, 46-57, 148-49, 170-79, 199-217; Appellant’s Supplement, Exhibit 
6, ¶ 5.
1 
5. The cruise plan that ANF provided to TEAM included product merchantability 
specifications, which identified the criteria to be used by cruisers in categorizing classes of 
timber. In order to qualify as hardwood sawtimber, a tree had to have a minimum DBH of 
11 inches and a small end diameter of at least 9.6 inches.  “Sawtimber” was further described 
“as containing at least one merchantable log that meets Factory Lumber Log Grade 3, 
specifications, or better . . . . ”  On a gradation scale, a lower grade designation, such as grade 
2, would be better than a grade 3.  ANF also described a second and separate hardwood 
category, “Sawtimber**/Constrctn/Local.”  That category carried the same dimension criteria 
as “Sawtimber” and was further described, 
Sawtimber size trees, due to insect boring problems (worm holes are usually 
considered grade defects and have associated stain) that do not meet Factory 
Lumber Log Grade 3 specifications, but are suited for construction or local use 
rather than pulpwood.  Trees greater than 11.0” DBH that do not meet either 
1   Appellant has charged that various TEAM cruisers did not meet the certification 
requirements called for in the Handbook and has further charged that TEAM and the FS 
failed to follow Handbook procedures as to aspects of the cruising. The FS has disagreed. 
Appellant’s Supplement, Exhibit 5; Durner Declaration 2 ¶¶ 9-10; Van Dyck Declaration 
¶¶ 7-8.  Resolution of the dispute as to certification is not necessary to decide this case. 

   
  
 
 
  
   
  
  
      
 
  
 
  
  
    
  
 
 
   
   
 
 
5 CBCA 588 
sawtimber criteria should be classified as pulpwood specifications, or culled, 
depending on tree conditions.
  Appeal File, Exhibit 49.  
6. Brian Slagle was the crew leader on the initial cruise.  In answer to 
interrogatories, the FS said that the original cruise measured 719 sample trees.  Mr. Slagle 
prepared written tally sheets, identifying each tree surveyed, which included for each tree the 
stratum and tree line number, the sample group, the species, the DBH, the tree count, the 
estimated number of saw logs and total timber, the defect percentage, and the cruiser’s 
initials. Tape measurements were used in many instances; however, on some of the sample 
trees, cruisers did not measure DBH with tape, but instead performed an ocular measure.  The 
FS had anticipated the need to make visual measurements because of lack of access due to 
blow down or other conditions.  Appeal File, Exhibits 53-56, 228-71, 283-302; Van Dyck 
Declaration ¶ 10; Declaration of Brian Slagle (Oct. 15, 2007) ¶ 5. The cruisers transferred 
the information from the tally sheets to a document titled “Sorted List of Measured Trees.” 
The data was then entered into a computer database and a computer program applied to it in 
order to calculate the estimated quantity of sawtimber and non-sawtimber for each tree 
species.  Appeal File, Exhibits 283-302;  Appellant’s Supplement, Exhibit 6, ¶ 31. 
7. On August 9, 2004, ANF issued a procurement request for a check cruise to 
verify the accuracy of the TEAM cruise data.   Thirty-one trees were check cruised, of which 
thirty were sawtimber and one was pulpwood.  Appeal File, Exhibits 218-27.  The check 
cruise was conducted on or about August 25, 2004, by Joe Hepinger, a former district check 
estimator for the Ranger District.  His check cruise indicated that the volume was 
overestimated for merchantable logs and that the cruise had other errors and inaccuracies. 
Appeal File, Exhibits 272-76; Appellant’s Supplement, Exhibit 6, ¶ 31. 
8. The CO prepared a “Results Summary” of the check cruise, wherein he set out 
a number of observations. He said that the initial cruise had correctly identified species on 
the sale.  He noted that the FS had expected differences between the check cruise and original 
cruise regarding DBH.  The expectation was related to the techniques used for measuring, 
which the CO described as half diameter measurements or measuring at other points.  The 
FS used those measuring techniques because much of the timber was blown down and, as 
such, the FS was not confident that it could accurately measure the DBH with tape. 
Additionally, a check cruiser could not always utilize that same measurement technique used 
by the original cruisers, which meant that the check cruiser would likely not use the same 
point of measurement for each sample tree as did the original cruiser.  The CO stated that on 
a normal cruise of standing timber, the ANF tolerance for DBH differences was +/- 0.2 
inches.  If that tolerance was doubled to account for the more difficult measurement 

 
  
 
 
 
 
 
  
          
     
 
 
 
     
   
    
    
    
 
 
 
      
6CBCA 588 
conditions, it became  +/- 0.4 inches.  Based on the doubled tolerance, the CO said that three 
trees out of thirty 2  sawtimber trees sampled on the Windy City sale, were outside the 
tolerance.  For two of the three, the DBH had to be estimated.  Tolerance in the context of 
cruising is a value that represents the maximum departure from the check cruiser’s findings. 
Put another way, if the check measure was greater or less by 0.4 inches than that measured 
by the original cruise, the original cruise measure was out of tolerance.  Appeal File, Exhibits 
275-76; Appellant’s Supplement, Exhibit 4 at 13-14; Exhibit 6, ¶ 7;  Durner Declaration ¶ 
5; Van Dyck Declaration ¶¶ 12-13. 
9. Appellant has asserted that using  0.4 inches rather than 0.2 inches for DBH 
was a breach by the FS, because the tolerance did not follow the Handbook or earlier 
established FS procedures.  Appellant provides in its brief two different (albeit close) 
comparisons.  At one point, appellant said that if 0.2 inches had been applied, the check 
cruiser would have determined that eight of the check cruised trees were outside the 0.2 inch 
tolerance, and at another point, appellant says that using 0.2, nine trees out of thirty-one were 
out of the tolerance. Appellant’s Brief at 8, 10. With either of those results, the score for 
DBH would have exceeded the 80% standard in the Handbook for that item.  In his 
deposition of the CO, appellant’s counsel had the CO address a number of  the sample trees 
that had been cruised, and showed deviations of greater than 0.2 inches.  Appellant’s 
Supplement, Exhibit 4 at 19-21. 
10. The CO consulted with a regional measurement specialist and then concluded 
that the use of the diameter information was in accordance with the Handbook and the 
diameter measurements were within acceptable tolerances for blown down timber. 
Therefore, he decided that the DBH did not need to be re-measured.  In his first declaration, 
the CO stated that diameters were not re-measured as part of the second cruise, because the 
FS had contemplated in the cruise plan that it would be very difficult, in some cases, to make 
a standard DBH measurement due to the nature of the blown down timber. Durner 
Declaration ¶ 3, 5.  As a consequence, the FS had to do some ocular measurement of DBH. 
He further said that field conditions  required estimation of some measurements.  He 
continued that of the three trees that exceeded the 0.4 inches tolerance, the diameter 
measurements of two of them had been estimated because it was not possible to measure the 
diameter of those trees at the proper measurement point.  Finally, although three trees 
exceeded the allowable limit (referring to 0.4 inches), overall the tree diameter measurements 
for the first cruise were within the acceptable limit of 80%, citing FSH 2409.12, 
632.1(Handbook).  It is noteworthy that the same form referenced by the CO as establishing 
2   At times the parties referred to thirty and thirty-one sample trees.  The distinction 
is not critical to the decision. 

     
 
  
 
         
           
  
     
 
  
     
 
         
 
   
 
 
7 CBCA 588 
80% as an acceptable score also showed the tolerance standard for DBH to be  -/+ 0.2 inches. 
The cited form was titled, 62.1 - Exhibit 01, “Sample Format for Field Measurement 
Evaluation.”  However, while the cited form contains specific tolerance values, other 
segments of the Handbook, specifically 62.1, indicate that the tolerances on the form could 
be subject to change, and provide: 
Use a scorecard for evaluating individual performance on field measurements. 
The Regional Foresters shall establish: 
a. The items to be checked; 
b. Tolerances; 
c. Error weights; and 
d. Acceptable scores with format similar to that 
shown in exhibit 01.  
Furthermore, the CO pointed out that ANF did not limit the use of the 0.4 tolerance solely 
to this sale.  Of nineteen salvage timber sales prepared in the wake of the 2003 windstorm, 
the CO believed that all used a tolerance of 0.4 because of the salvage condition.  Appeal 
File, Exhibits 119-21, 275, 699-700; Durner Declaration ¶¶ 5, 9, 13; Durner Declaration 2 
¶¶ 4-6.  Appellant, at page 4 of its reply brief, states that of the thirty-one sample measure 
trees check cruised, the diameters of only two had to be estimated on both the cruise and 
check cruise.  Appeal File, Exhibits 277-79.  
11. The FS has acknowledged that +/- 0.2 inches is the FS tolerance for checking 
DBH in  standing timber.  It also has appears to agree that there is no specific document that 
supports doubling the tolerance for DBH from 0.2 to 0.4 inches.  The CO, however, says that 
the Handbook does not specify any particular tolerance and the choice is within the discretion 
allowed to local managers, based on field conditions.  He also says there was no written 
directive  or regional policy on tolerances  for salvage sales at the time of the check cruising, 
reiterating that the March 1, 2001, memorandum addressed tolerances involving standing 
green timber and not for salvage situations, where timber was blown down.  Additionally, he 
pointed out that the 2001 memorandum was never officially adopted by the FS, which 
continued to use different tolerances depending on field conditions.  Appellant’s Supplement, 
Exhibit 6, ¶ 68; Durner Declaration 2 ¶¶ 4-5.   
12. Mr. Van Dyck also weighed in on the use of the 0.4 tolerance. He stated that 
a liberal tolerance (0.4) was used because of the difficult field conditions.  He said that a 
fairly high proportion of the recorded diameters had been measured using specialized 
measures for damaged trees or had been estimated.  He said that such conditions made it 
difficult to replicate a diameter measurement in a check cruise, asserting that overall, the 

 
 
 
  
  
 
    
 
   
  
 
   
 
    
  
 
  
    
 
        
8 CBCA 588 
diameter  measurements were within acceptable error tolerances.  He acknowledged that 
some individual tree diameters in the first cruise did not precisely match the first check cruise, 
but said the overall sample of diameters was statistically reliable.  Because  conditions were 
still difficult and some diameters would still have had to be estimated rather than measured 
in a second sample, he thought it unlikely that the results of re-measurement of DBH would 
have improved the quality or statistical reliability of the sample as to that element.  He 
concluded that the FS general cruise design was consistent with FSH 2409.12 chapter 10 and 
employed standard, acceptable procedures for taking tree measurements in blown down 
timber.  Van Dyck Declaration ¶¶ 10-12. 
13. While the FS was satisfied with the accuracy of the TEAM cruise as to the 
DBH measurements, the FS was not satisfied as to TEAM’s accuracy for height 
measurements and defect counts.  About 65% of the checked trees exhibited sawlog heights 
greater than that measured by the check cruiser.  Fifty-five percent of the sawtimber trees had 
the total height overestimated by one additional bolt.  A bolt is a short section of log or 
timber.  As to the count of defects, the FS found five of the thirty sawtimber trees checked 
exceeded tolerance for defect, with four high and one low.  The FS decided to recount both 
height and defects through a re-cruise. Appeal File, Exhibits 275-76; Appellant’s 
Supplement, Exhibit 6, ¶ 7; Durner Declaration ¶ 6; Van Dyck Declaration ¶ 14. 
14. Once it was decided that the FS needed to re-cruise, the CO, once again, 
consulted with Mr. Van Dyck, this time as to the scope and appropriate design for the re-
cruise.  Durner Declaration ¶ 9; Van Dyck Declaration ¶¶ 16-18.  On or about October 2, 
2005, the FS issued a procurement request to TEAM to conduct a re-cruise.  The re-cruise 
was to involve approximately a third of the sample trees from the first cruise.  The CO 
explained that the FS limited the number of trees measured, because of the low combined sale 
error for the first cruise. Further, while the FS reduced the sample size on the re-cruise, it still 
preserved the randomness of the sample by selecting every third tree.  Mr. Durner continued 
that since the Region had not established an acceptable level for check cruises, the FS 
followed the evaluation example in the Handbook for that item. Durner Declaration ¶¶ 4, 
11; Van Dyck Declaration ¶¶ 16-19.  
15. Mr. Slagle directed the re-cruise, working with William Campbell, who was 
new to ANF but experienced in forestry.  This was, however, only the second blow-down 
cruise that Mr. Campbell had worked on.  Appellant’s Supplement, Exhibit 3 at 10.  The 
second cruise did not rely on the measurement or count data from the first cruise for either 
the  height or defects.  Those elements were re-cruised. Mr. Slagle attempted to measure one 
out of every three sample trees; however, he reported that he was unable to locate and 
measure nine of the sample trees used in the first cruise. TEAM re-measured a total of 219 

 
   
   
   
 
   
 
 
  
     
 
  
   
 
   
    
 
   
  
   
  
   
9 CBCA 588 
trees during the second cruise. Appeal File, Exhibits 353-65; Appellant’s Supplement, 
Exhibit 6, ¶ 31;  Slagle Declaration ¶¶ 1, 2, 7. 
16. The FS verified the accuracy of the re-cruise by having it checked by Robert 
Luke, a former forest check cruiser, who was assisted by Mr. Campbell.  Appeal File, 
Exhibits 343-52, 364-65;  Appellant’s Supplement, Exhibit 3 at 14.  The FS noted that there 
was a significant improvement in the quality of merchantable length estimates as a result of 
re-measurement.  Mr. Campbell then ran a “check cruise program,” through which he 
compared TEAM’s findings on the re-cruise with Mr. Luke’s recheck.  On the form titled 
“Results of Check,” the FS showed SP, DBH, HT and DEF as 100%  correct.  Element NCF 
(net cubic feet) was shown as fifteen wrong (fifteen trees) and as such deviated from Mr. 
Luke’s re-check cruise by at least 10%.  That total error of fifteen translated to 55% correct. 
When the FS calculated the average for all elements, it concluded that the cruise  met the 
required overall average of eighty-five that was set out in the Handbook (scoring it as 
eighty-six).  The FS therefore proceeded with the sale and with the estimate derived from 
the re-cruise.  As an added check, Mr. Van Dyck recalculated the heights and defects on the 
second cruise to assure their accuracy.  He did so because he had concerns due to the 
conduct of the first cruise.   Appeal File, Exhibits 343-52, 364-66, 370; Durner Declaration 
¶ 13; Van Dyck Declaration ¶¶ 5-19. 
17. The FS calculated a  passing grade of 86% for the recruise. The FS had not 
re-measured the DBH on its re-cruise, and the FS entered 100% for DBH  on the recheck 
cruise scoring form, because diameters from the first cruise were not re-measured in the re-
cruise.  Accordingly, there was no deviation to report between the diameter estimates for the 
re-cruise and the re-check cruise. Appeal File, Exhibits 366-70; Appellant’s Supplement, 
Exhibit 3 at 26.  It seems apparent that had the FS showed a deviation for DBH other than 
100%, that entry would have affected the final re-check score downward.  That might have 
dropped the overall score to under eighty-five, the threshold identified on the Handbook 
tolerance form.  Appeal File, Exhibit 120; Appellant’s Supplement, Exhibit 2. 
18. As to the number of trees to be re-measured and rechecked, the CO said that 
the first cruise functioned like a reconnaissance cruise in that the FS discovered that the 
variability across the sale area was low.  Therefore, the FS concluded that it could measure 
fewer sample trees for the re-cruise. The CO acknowledged that a few sample measure trees 
(less than 5%) could not be relocated during the second cruise, but added that such a result 
was not unusual, given field conditions.  Appeal File, Exhibits 101-05; Durner Declaration 
¶ 11. 
19. Appellant points out that per the Handbook, not only must the overall average 
of all categories be 85%, but also “each item checked must have at least 80% correct.”  The 

 
         
  
  
   
    
 
    
    
 
  
       
 
    
 
     
         
  
 
 
    
   
 
 
  
 
10 CBCA 588 
number 55% listed for NFC is clearly less than 80% correct. That said, we need to point out 
that neither the listing of tolerances on the Handbook sheet (Appeal File, Exhibit 120), nor 
the 2001 tolerance sheet (Appellant Supplement, Exhibit 2) lists NCF as a category.  Mr. 
Campbell, who prepared the form that used NCF, addressed his use of the NCF score and 
explained what was being evaluated. Regarding the relationship of the NCF number and an 
85% passing grade, he said that if one looked at the top of the form for the absolute 
tolerance, it says “NCF, net cubic feet, is zero.” He said that reference meant there was 
absolutely no tolerance and one, therefore, had to get it exactly right.  He explained that the 
use of no tolerance was obviously an oversight on his part and that the tolerance is usually 
in the 10% range.  Appeal File, Exhibit 370; Appellant’s Supplement, Exhibit 3 at 27-29. 
20. Appellant points out at page 11 of its brief that the tree counts in the FS tally, 
titled  “Sorted List of Measured Trees,” dated January 12, 2005, Appeal File, Exhibits 395­
404, differed from the tree totals in UC5 (the computer printout of the cruise), with UC5 
showing 2725 trees, while the “Sorted List” showed 2615 trees.  Appeal File, Exhibits 371­
94, 404.    It also claims that the FS failed to meet the Handbook requirement that called for 
the timber sale office to check all sales, record them in the timber sale cruise evaluation 
report, and have the district ranger certify the results.  Appeal File, Exhibits 113-14.  In 
reply, the FS asserted the above was not mandatory.  It continued that while the Handbook 
provides an example as to a summary, no particular format is prescribed, and additionally; 
the record for the cruise showed the FS conducted a detailed analysis on the sale, the cruise 
data was evaluated by the district ranger’s staff, and the ranger certified that the sale met all 
applicable manual and Handbook standards.  Appeal File, Exhibits 121-27; 275-79, 370; 
Durner Declaration 2 ¶ 8.  Paragraph 63.1 of the Handbook provides as follows: 
Cruises should be systematically reviewed for completeness.  Exhibit 1 
includes a list of office and field components that should be examined as 
appropriate: the list also includes cross-references to the sections or chapters 
in this Handbook and other Handbooks containing related direction.  Use this 
list to develop a unit checklist similar to the sample shown in exhibit 2 that 
can be initialed, dated and filed in the sale folder after the inspection has been 
completed.  
Appeal File, Exhibit 122.  
Advertisement and award 
21. Once the FS completed the cruise process, it proceeded with advertising the 
sale.  It issued a timber sale prospectus and bidding documents. A prospectus is a document 
which furnishes prospective bidders with information not contained in the published 

 
  
   
       
  
  
 
  
     
 
 
 
 
 
 
 
               
 
     
 
 
           
 
  
       
11 CBCA 588 
advertisement and is intended to enable bidders to decide whether or not to further 
investigate the sale. The prospectus, which was available to purchasers, provided 
information including estimated quantities and sale requirements. It included a sample bid 
form, which listed four species, identifying the first three as sawtimber and the last as 
pulpwood.  It provided an estimated hundred cubic feet (ccf) volume for each. The practice 
of the FS is to advertise sales in hundred cubic feet, which is how it advertised this sale.  The 
sample bid form listed the estimated volume for each species as follows:
 689 ccf of Black Cherry
     7 ccf of Hardwood-Other 
214  ccf of Red Maple 
269  ccf of Hardwood-Other. 
The FS explained in its answer to Interrogatory 21 that cubic feet  is a measure of wood fiber 
content of a tree based on diameter and height measurement, and also includes taper 
adjustments.  Cubic foot volumes are an estimate of the total amount of solid wood in the 
logs.  Cubic foot volume is generally accepted as the most accurate estimate of total amount 
of wood products that can be removed in a timber sale.  That is one key reason why the FS 
adopted this unit of measure.  Appeal File, Exhibits 405-14, 700; Appellant’s Supplement, 
Exhibit 6, ¶ 21; Durner Declaration ¶ 14; Van Dyck Declaration ¶¶ 24, 26, 27.   
22. The FS included, as part of the prospectus, three pages of a computer report 
on the timber, designated as UC5.  These were summary sheets, part of a larger document 
of twenty-three pages.  The UC5 report, which was derived from the re-cruise, contained 
information such as counts of timber in various areas and estimates as to volume.  Further, 
UC5 not only provided details as to the ccf quantities set out in the prospectus and sample 
bid form, but also provided estimated quantities in board feet for those same items.  In 
addition, it set out separate estimates for net and gross cubic feet and board feet volumes. 
Net volumes are less than gross volumes, as the net volume is the residual volume after 
deducting wood loss (defect) from gross volume. Gross is the total volume in a tree to a 
specified top limit.  The board foot volumes set out in UC5 were measured using the 
International 1/4-inch rule (scale), and the cubic foot volumes were measured  by use of the 
FS Cubic Scaling Handbook.   According to the FS, the 1/4-inch International rule is 
generally accepted as the most accurate measure for board feet.  Cubic feet, however, is 
considered a more accurate means to measure timber volume. Finally, the prospectus, at 
paragraph 4, Timber Quantity and Rates, provided in pertinent part that the timber estimates 
are “based on detailed cruise information on file and available for inspection at the Forest 
Service offices listed above.”  Neither party addressed exactly what was available for 
review.  Appeal File, Exhibits 371-94, 405-15; Appellant’s Supplement, Exhibit 6, ¶¶ 21, 
59. 

   
 
    
  
  
  
 
   
 
  
 
        
 
 
   
     
 
      
12 CBCA 588 
23. We have been cited to nothing in the prospectus or in the UC5 documents that 
demonstrates that the FS identified to a reader the specific tolerance it used to check the 
accuracy of DBH measures. The prospectus and UC5  each identify the two species in issue 
in this appeal as  Item 762, black cherry, and Item 316, red maple.  The black cherry volume 
(the considerably more expensive timber) was estimated on UC5 at 68,879 net cubic feet, 
while the red maple was estimated at 21,489 net cubic feet.  On the sample bid form in the 
prospectus, the FS rounded the black cherry to 689 ccf and the red maple to 214 ccf.  Those 
figures were also the figures shown on the contract which was bid.  The FS expected that 
bidders would review the quantity estimates in the prospectus as part of the process before 
providing a bid.  Appeal File, Exhibits 408, 412-15, 425-30. 
24. The CO explained that although the FS included a board foot estimate in UC5 
of the prospectus, that information was not contractual and was provided because it was 
desired by the industry to help the industry transition from the FS’s prior use of board feet 
to the use of cubic feet for FS timber sale contracting.  As the FS sees it, any determination 
as to the validity of the estimate or what was harvested or available must be measured 
through cubic feet, the measure used in the contract for bidding.  Appellant’s Supplement, 
Exhibit 6, ¶¶ 17, 28; Durner Declaration ¶ 14. 
25. The measures for timber in ccf and  board feet are not interchangeable.  Each 
is  calculated independently. Normally, one does not come to a ccf total by converting from 
board foot volume.  Instead, to estimate ccf, the FS uses national timber cruising software, 
which relies on tree measurement data, such as DBH, sawlog height, species, and defects, 
and then calculates the data through a complex set of equations.  Appellant’s Supplement, 
Exhibit 6, ¶¶ 17-18, 21. 
26. The following prospectus provisions are pertinent to this appeal and contain 
warnings to purchasers not to rely on estimates set out therein. The provisions also clearly 
state that the prospectus is not legally binding and the sample contract, not the prospectus, 
will govern as to the obligations and expectations of the parties.  Section 1, 
INTRODUCTION, states in pertinent part:  
This prospectus furnishes prospective bidders with information 
not contained in the published advertisement and is designed to 
enable bidders to decide whether or not to further investigate 
the sale.  The prospectus is not a legally binding document, but 
is offered to provide general information about a sale.  The 
contract does not include descriptions, estimates and other data 
in this prospectus, unless otherwise stated. In the event that the 
prospectus contains an error or contradicts the sample contract, 

 
  
 
    
 
 
     
   
  
    
   
 
     
  
 
13 CBCA 588 
the contract governs.  Bidders are urged to examine the timber 
sale and make their own estimates.  Timber sale contract  2400­
6T will be used.  Inspect the sale area and the sample contract 
before submitting a bid.  Obtain the appraisal, other information 
on the timber, and conditions of sale and bidding at Forest 
Service offices listed above and in the named attached 
advertisement. 
Section 4,  TIMBER QUANTITIES AND RATES, includes the statement:  
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 HEREIN 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. 
Appeal File, Exhibit 407. 
Quantities 
27. Bids on the sale were opened on March 31, 2005. Three firms submitted bids, 
ranging from appellant at $705,541.34 to the low bid at $683,155.34. Due to environmental 
litigation, the contract was not awarded until August 11, 2005.  The contract required Carr 
to pay a lump sum price based on applying the bid price for each species to the respective 
quantity.  The contract was set to terminate on September 30, 2006. Appeal File, Exhibits 
456-60.  
28. Appellant’s owner, Gerry Carr, an engineer with approximately twenty years 
of experience in cruising and harvesting, prepared appellant’s bid. He pointed out that the 
volume Carr had harvested from approximately twenty other  FS sales  was never less than 
90% of the estimated volume.  On a number of sales, the harvest  was greater than the FS 
estimate.  He said that he spent four days walking through each payment unit, viewing the 
timber.  He was somewhat hampered in access due to snow conditions.  Affidavit of Gerry 
Carr (Oct. 26, 2007) ¶¶ 3-5.   

   
 
   
 
 
 
  
    
     
 
  
   
14 CBCA 588 
29. Bidding documents included a number of provisions warning bidders to make 
their own estimates and not rely upon the FS figures.  Among those were: 
Section 16.  BIDDER RESPONSIBILITY CERTIFICATION
 
. . . .
 
d   That if awarded this contract that Bidder will complete the timber sale . 
contract to its terms and any modifications thereof including requirements to 
purchase, cut, and remove the included timber or forest products by the 
termination date. 
Section 23. DISCLAIMER OF ESTIMATES AND BIDDERS’ 
WARRANTY OF INSPECTION.  Before submitting this bid, the Bidder 
is advised and cautioned to inspect the sale area, review the requirements of 
the sample contract, and take other steps as may be reasonably necessary to 
ascertain the location, estimated volumes, construction estimates, and 
operating costs of the offered timber or forest product.  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. 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 products as is without any 
warranty of quality or 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. 
Appeal File, Exhibits 426-28. 
30. In addition, several contract provisions addressed the responsibilities and risks 
associated with the estimates: 

 
  
 
 
 
 
 
 
 
 
   
15 CBCA 588 
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.  Estimated quantity in AT2 does not include the 
following: 
(a)  Damaged timber under BT2.13; 
(b)  Unintentionally cut timber under BT2.14; 
(c)  Construction timber under BT2.15 cut outside of Payment 
Units and removed from construction use for utilization by 
Purchaser; 
(d) Timber within clearing limits of Temporary Roads or other 
authorized clearings and that is not designated under BT2.31, 
BT2.33, BT2.34, or BT2.35; or 
(e)  Dead or unstable live trees that are sufficiently tall to reach 
Purchaser’s landings or the roadbed of Specified Roads under 
BT2.32. 
Estimated quantities for such timber not included in AT2 shall be 
determined as stated in CT6.8. 
If Sale Area Map shows Payment Units where Marking or Measuring is to be 
completed after date of timber sale advertisement, the objective of Forest 
Service shall be to designate for cutting in such Payment Units sufficient 
timber so that Sale Area shall yield the approximate estimated quantities by 
species or species groups stated in AT2.  However, 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. 
Quantity adjustments shall not be made under this Section after there is 
modification for Catastrophic Damage under BT8.32. 
BT2.41 Adjustment for Quantity Deficit.  If Sale Area Map shows Payment 
Units where Marking or Measuring is to be completed after the date of timber 
sale advertisement and if Contracting Officer determines that a deficit in the 
estimated quantity will cause the quantity designated to be less than 90 percent 
of the total estimate shown in AT2, Forest Service, upon request by Purchaser, 
shall designate additional timber within Sale Area. Such additional timber 
shall be limited to that estimated to be necessary to reach approximately the 
estimated quantities by species listed in AT2.  Any such additional designation 
shall be consistent with land and resource management plans. 

 
  
      
 
 
 
 
  
 
   
  
     
 
 
      
 
16 CBCA 588 
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. 
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. For payment purposes, corresponding revisions in quantity 
and total payment shall be shown in AT4c for each Payment Unit involved. 
Adjustment in rates will not be made.  Adjustment in quantities shall not 
obligate Forest Service to designate additional quantities when the original 
quantity estimate is overstated. 
Appeal File, Exhibits 472-73. 
31. Provision AT-2 of the contract, titled “Volume Estimate and Utilization 
Standards, applicable to BT2.1, BT2.2, BT2.4 and BT6.4,” listed the four species of timber 
on the sale, along with the estimated quantities in ccf  (689 ccf for black cherry and 214 ccf 
for red maple), as well as items such as minimum specifications for DBH, number of 
minimum pieces per tree, length, and diameter inside bark.  Under the sale contract, a 
merchantable black cherry or red maple tree had to be at least 11 inches diameter at breast 
height, 9.6 inches diameter at the small end, and at least 8 feet in length.  Appeal File, 
Exhibit 457.  Provision AT4c broke down the expected volume by harvest unit or block. 
The various units added up to the advertised total on the bid sheet.  Appeal File, Exhibits 
459-60. 
Actions During Contract 
32. Carr began the harvest in Blocks (or units) 3 and 6, starting in the fall of 2005. 
In October 2005, following Carr’s cutting of the blocks, Carr notified the CO that the 
volume of estimated timber, particularly black cherry, was not being reflected in the harvest 
of the initial blocks.  Appeal File, Exhibit 511.  Carr said that soon thereafter, the CO 
assured him the volumes were there overall, but maybe not in the individual blocks, saying 
it had to do with the computer program and the strata.  Carr then proceeded to cut units 4, 
7A and B, and 8A, performing those harvests in October and November 2005.  On 
February 3, 2006, the FS submitted an invoice to Carr for the full contract price of 
$99,692.68 for payment units 4, 7A, and 7B.  Carr Affidavit ¶¶ 19, 20. 

           
           
           
           
           
  
  
  
 
 
  
    
 
 
       
 
    
 
   
     
  
  
   
17 CBCA 588 
33. By letter of  March 17, 2006, Carr notified the FS of the amount of claimed 
shortfalls in blocks 3, 4, 6, 7, and 8A, basing the conclusion on its records of “all sawtimber” 
harvested for those blocks. Carr provided forty-six pages of scaling records, which 
identified the dimension of every sawlog delivered to the lumberyard from the sale.  Carr 
stated that the volume shortfalls had prevented it from paying the FS invoice and set out its 
calculation of harvested footage, using board feet, and calculating those board feet using the 
Doyle scale, the measuring scale Carr typically used for timber it harvested, 
Block 3  Cherry  14911 Soft Maple  4726
 
Block 6  Cherry  7706 Soft Maple  4284
 
Block 8  Cherry  64847 Soft Maple  19563
 
Block 7  Cherry  58048 Soft Maple  230
 
Block 4  Cherry  18731 Soft Maple  1116
 
Appeal File, Exhibits 521-67; Appellant’s Supplement, Exhibit 1, ¶ 22. 
34. Carr stated that depending on whether it used net or gross volume, it was “out” 
over 106,000 board feet in cherry and 33,000 board feet in maple.  Carr calculated the cost 
impact as over $170,000 and indicated that it might not have the capital to complete, but was 
trying to find  a way.  Carr asked if there was any way to make an adjustment in volume or 
price at that point.  Appeal File, Exhibit 521. 
35. The CO responded by letter of April 14, 2006, asserting that Carr was in 
default of the contract by not paying the invoice for $99,692.68.  The letter also stated, “At 
this time operations are suspended.”  Accordingly, Carr suspended its operations.  According 
to Mr. Carr, he was told by the CO that the CO would review block 5, but did not hear from 
the CO as to results of any examination.  Carr states, “It was mentioned that the Forest 
Service could withdraw funds in the $100,000 payment bond to cover the outstanding 
invoice.  Neither the CO nor Mr. Campbell ever modified the April 14, 2006 direction to 
suspend operations.”  Appeal File, Exhibits 570-72, 577; Appellant’s Supplement, Exhibit 
1, ¶ 23. 
36. Carr spoke with the FS on June 5 and June 23, 2006, telling the CO on the 
latter date that Carr had obtained a 100% cruise of the balance of the sale (uncut blocks 1, 
2, and 5) through an independent company.  There is no specific evidence establishing when 
the report of this cruise, prepared by Forecon and dated June 16, 2006, was given to the CO. 
According to appellant, Forecon did not include block 8B because there was no government 
estimate which it could compare to block 8B.  By modification 1 to the contract,  the parties 
had agreed to split the original estimates for blocks 8A and B for payment purposes, and 
therefore what was estimated for 8A and 8B did not necessarily reflect the actual quantities 

      
 
 
     
  
 
   
 
   
     
 
 
  
   
   
 
 
 
    
      
  
18 CBCA 588 
in each subpart.  Appeal File, Exhibits 459, 512-14, 575-76; Appellant’s Supplement, 
Exhibit 6, ¶ 51, Exhibit 7.  
37. The Forecon report stated that Forecon inventoried  all timber measuring 11.1 
diameter at breast height and greater.  Forecon reported that it used the USFS grade 2 
specifications and reported in two-inch diameter classes. The cruise included both standing 
and blown down timber.  Forecon stated that some trees had been marked by the FS as 
sawtimber, but those trees did not meet USFS grade 2 specifications.  Forecon additionally 
made a separate tally of the trees that the FS had marked as sawtimber, but which Forecon 
did not find to meet the specifications.  Forecon provided the following volume comparison, 
taking the FS volume from gross board feet (bf) on the prospectus: 
Block 1        40,768.2 bf (63.8% of the FS volume estimate of 63,900 bf); 
Block 2  106,462 bf (66.8% of the FS volume estimate of 159,289 bf); and 
Block 3        31,259.1 bf (72.7% of the FS volume estimate of 43,021 bf). 
Appeal File, Exhibits 412-14; Appellant’s Supplement, Exhibit 7. 
38. Forecon stated that Carr had done no cutting or removal of material in the 
three blocks that it had cruised and pointed out that a few trees had been cut to clear for 
access roads, trails, and well sites.  Additionally it reported that some merchantable timber 
remained and further, that there were some instances where merchantable material had 
recently been removed, possibly for firewood.  Forecon did not place a quantity on the above 
items.  Forecon then addressed, in narrative form, each block that it had cruised, and for each 
block, it identified trees that had been marked as sawtimber as to number, size, and species. 
In deciding what to count, Forecon’s analysis indicates that it  did not count trees unless they 
met grade 2 specifications. The cruise plan criteria showed that grade 3, not grade 2, was 
the threshold used for the FS cruise numbers.  We take notice that grade 2 is superior to 
grade 3.  Finding 5; Appeal File, Exhibit 49; Appellant’s Supplement, Exhibit 7. 
39. The record does not show when the FS got the Forecon report, or whether the 
CO even had it prior to discovery.  Appellant did not use or reference the report in its 
September 2006 claim letter, and the CO did not address it in the CO final decision.  There 
was correspondence between the parties during the summer of 2006, relating to non­
payment by Carr of an invoice. The payment and collection actions are discussed briefly 
below in a separate section.  While the parties have addressed the invoice in their briefing, 
as well as a suspension of performance, the matters have not been addressed in an appealable 
final CO decision. 

  
      
  
       
             
   
19 CBCA 588 
40. With matters still unresolved, Carr, through letter of counsel dated 
September 12, 2006, submitted a formal request for a contract correction or reform of the 
payment  amounts for the units it had harvested.  It also asked to cancel payment units 1, 2, 
5, and 8B, or otherwise have the contract reformed.  Counsel for appellant charged that the 
estimates used by FS were grossly overstated and attached a table, which counsel said 
compared Carr’s harvested  quantities for  black cherry and maple (designated by numbers 
762 and 316) against the FS estimated quantities for those same species and locations.  The 
table is set out below, with numbers in the first three columns representing board feet of 
timber, and the triangle symbol indicating difference.  Further, the last column, CCF, 
represents appellant’s conversion of board feet to ccf by use of a formula: 
Cherry (762) 
Cherry Estimated
  BDFT 
Cherry Actual
 BDFT 
/ BDFT / CCF 
Block 3 37,155 14,911 (22,244) 35.30 
Block 4 29,842 18,731 (11,111) 17.60 
Block 6 19,714   7,706 (12,008) 19.00 
Block 7 65,737 58,048   (7,689) 12.20 
Subtotal 152,448 99,396   53,052 84.10 

      
      
      
      
   
   
  
 
 
  
  
 
 
    
20 CBCA 588 
Maple (316) 
Maple 
Estimated 
BDFT
 Maple
  Actual BDFT 
/ BDFT / CCF 
Block 3 9,962 4,726 (5,236) 8.30 
Block 4 3,025 1,116 (1,909) 3.00 
Block 6 9,153 4,284 (4,869) 7.70 
Block 7 7,518   230 (7,288) 11.60 
Subtotal 29,658 10,356 19,302 30.60 
Appeal File, Exhibits 587-93. 
41. The figures on the above table track Carr’s  March 17, 2006, comparison, 
except the above does not include block 8.   Carr takes the FS volume from the gross board 
foot column on UC5.  The FS, in advertising the sale and as reflected on UC5,  took its 
estimated ccf volume from the net’s cubic foot column, not the gross foot column.  Net 
volume, be it in cubic feet or board feet, would show a smaller volume than gross.  Net 
volume is reduced for defects.   Accordingly, a comparison of net board feet to the harvested 
quantity would have resulted in a narrower difference than that claimed by appellant.  The 
net estimates as compared to the gross estimates as to black cherry are set out below: 
Block 3  33,535 rather than 37,155 
           Block 4  26,620 rather than 29,842 
Block 6  17,108 rather than 19,714 
Block 7  59,359 rather than 65,737 
There would have been similar proportional differences for red maple.  Appeal File, Exhibits 
412-13,  521, 593; Appellant’s Supplement, Exhibit 6, ¶ 59. 
42. The CO evaluated Carr’s claimed harvest volume by calculating Carr’s 
harvested units, using Carr’s scaling records, and then applying that data to the cubic scaling 
handbook.  In deposition, counsel for Carr walked the CO through the process used by the 

                   
                                                              
                                                                 
                                                             
                                                                           
 
 
  
    
   
 
  
  
 
  
  
                   
          
  
  
  
 
  
  
21 CBCA 588 
CO to arrive at his ccf volume from Carr’s scaling records.  Using tree 349 as an example, 
the CO explained that he took the tree length of fourteen feet and diameter of sixteen feet and 
after applying a two-inch taper, took the volume from the table. Using those dimensions, tree 
349 calculated to 22.1 cf. The CO used the same procedure for each tree from the referenced 
scaling records.  Appeal File, Exhibits 522, 634-92; Appellant’s Supplement, Exhibit 4, ¶¶ 
42-47. 
43. On November 30, 2006, the CO issued his final decision on Carr’s claim. 
Much of the decision addressed how and why the FS carried out the cruise as it did.  Another 
portion addressed the volume issue.   We start with the discussion as to volume.  The CO 
compared the net volume in ccf, set out in the contract at AT4c, to the converted log volumes 
from appellant’s yard tickets, using the yard ticket data to calculate ccf for that timber.  Set 
out below is the CO’s comparison of the black cherry by payment unit, for those units 
harvested.  
Pay unit           AT4c volume  Converted log volume  Difference
 3 53   31.47                          -21.53
 4 41   36.99                               -4.01
 6 27   17.29                       -9.71
 7A 46 72.88  26.88
 7B  47 2.87  -4.13
 8A  95 136.74  41.74 
TOTALS  309 338.24  29.24 
The CO conducted a similar comparison for maple, concluding that the maple underrun was 
-3.75 ccf.  The calculated underrun was only for the harvested units and not for the entire 
sale.   Appeal File, Exhibits 656-710. 
44. The CO pointed out that there are a number of reasons why the purchaser’s 
volume recovery might not directly correspond to estimated quantities in the contract.  First, 
there was no way of determining whether the sawlog volume in the purchaser’s data 
represented all the volume according to utilization specifications in the contract.  For 
example, the CO noted that if a purchaser only took grade 2 or better logs, there would be 
a difference in volume attributable to the difference in merchantability specifications. 
Further, differences might also be attributable to hidden or latent defects in some sawlogs. 
The CO stated that he and a FS representative (in response to the purchaser’s concerns as to 
volume) conducted a field review in late March and early April 2006, as well as an extensive 
office review of the adjusted cruise data after the initial check cruise and re-cruise.  They 

  
 
  
  
         
     
 
  
 
     
  
  
 
  
   
  
 
 
 
22 CBCA 588 
found “no evidence to support errors that resulted in overstating the estimated quantities.” 
Appeal File, Exhibits 704-09; Durner Declaration ¶¶ 15,16. 
45. The CO then addressed Carr’s calculations. He pointed out that the estimated 
board volume that Carr used to compare with its harvest was taken from the gross and not 
net board foot volume.  Net volume reflects a deduction for defects.  By using the gross 
board foot volume, the appellant omitted any defect deduction.  Appeal File, Exhibit 707. 
46. The CO also focused on his contention that the process not only improperly 
handled net and gross, but was also materially inaccurate because Carr compared board foot 
volumes derived from two  separate and distinct measurement formulas, the International 1/4 
inch rule, used to develop board foot volume estimates in FS cruises for standing or down 
trees, and the Doyle log scale, used for measuring cut log volumes.  The CO stated that 
appellant compounded that error by applying an inaccurate conversion factor to convert 
appellant’s claimed difference in board feet to a difference in ccf.   More specifically, the CO 
took issue with the fact that Carr applied a constant board foot to cubic foot  ratio of 6.3 in 
all the calculations.  The CO said that there is no constant ratio to convert board feet to ccf. 
Conversions may display considerable variation, depending on average tree size, across the 
sale.  Appeal File, Exhibits 707-08. 
47. The CO reiterated that ccf was the unit of measure used in the contract and 
shown in AT2 and 4. Since the sale was in ccf, the CO concluded that his calculation in 
cubic feet using the purchaser’s log scale tickets (individually for each log) provided a more 
accurate and consistent assessment of comparable volume estimates than would a comparison 
using conversions from board feet to ccf.  The CO pointed out that his calculations in his 
final decision showed that once Carr’s harvest was measured in cubic feet, it was 
approximately equal to or exceeded the FS’s estimated quantities in the contract for maple 
and black cherry.  This  result covered multiple and not individual blocks, with the CO 
acknowledging that Carr had experienced under-runs in blocks 3 and 6.  The CO continued 
that once the overall log volumes were converted to cubic measure, sizeable over-runs were 
shown in other blocks on the sale, and overall, the sale and harvest were in line.  As such, 
and given disparities in the purchaser’s table and the CO’s converted cubic foot log volumes, 
the CO could not support any remedy based on the estimated quantities being  erroneous. 
Appeal File, Exhibits 707-08. 
48. The CO’s conversion of recovered timber volume to cubic feet and comparison 
with the estimated volume indicated that appellant recovered 106% of the volume estimated 
in the contract for the units that appellant had cut.  The CO used the National Forest Cubic 
Scaling Handbook to determine the proper cubic volume of each log.  The FS computation, 

 
    
    
     
  
  
  
    
    
  
  
 
     
     
    
     
 
          
 
  
   
 
  
 
   
 
23 CBCA 588 
accounting for defects, comparable log rules, and appropriate board feet to cubic feet ratio, 
indicated no shortfall.  Appeal File, Exhibits 457, 634-92, 704-08. 
49. Appellant, in challenging the CO, focused on  the  accuracy of the CO’s use of 
appellant’s scaling records.  Appellant charged that the CO included in the count of Carr’s 
harvested trees, a number of trees that did not meet merchantability standards, even though 
the trees were harvested and sent to the mill.  As set out below, the CO conceded the point and 
acknowledged that he included some timber that did not meet size standards.  Despite the fact 
that they were harvested, those trees did not qualify as merchantable timber.  However, once 
conceding the point, the CO recalculated, removing the trees claimed to be in error.  His 
results showed that Carr’s harvest, even with the adjustment, was in line with the estimate for 
the blocks addressed. The CO included in this second calculation, as recovered sawlog 
volume, only those logs reasonably believed to meet the “diameter inside bark at small end” 
of 9.6 inches at 8 feet (the merchantability specification  of the contract).   The CO said that 
the omitted logs involved approximately 12.485 ccf  black cherry and .809 ccf of red maple, 
and after omitting these logs from the recovered volume, he calculated that the total recovered 
volume was 103% of the total contract estimate of volume expressed in ccf for black cherry 
and 93% of the estimate for the red maple on the units harvested by Carr. He further stated 
that the contract volume estimate expressed in cubic feet included the entire net merchantable 
volume of trees.  He therefore used the entire volume of logs when converting the log tickets 
in the Doyle log rule to ccf, as there was no defect listed for that material.  Durner Declaration 
2 ¶ 3. 
50. Soon after receiving the final decision, appellant by letter of December 22, 
2006, filed a timely appeal.  Among issues raised, in addition to breach, is appellant’s claim 
for an adjustment under BT2.463, on the basis that the FS made an error in either input or 
calculation.  According to appellant, if erroneous information, such as an inaccurately 
measured tree diameter, is inputted into the computer program for calculating timber volumes, 
that is an error in computer input or in calculation and qualifies a purchaser for relief.   The 
CO states otherwise, limiting “error in computer input” only to transposed figures or other 
typographical errors and not inputting incorrect data.  Appellant’s Supplement, Exhibit 4 at 
47.  
51. In support of its briefing, appellant included portions of several depositions, all 
of which have been incorporated into the record, including portions of depositions from a 
separate appeal involving the James River sale, a matter with some parallel issues but a 
different purchaser.  In addition, the parties have filed affidavits and other supporting 
documents.  In briefing, appellant puts into contention the Forecon survey, a matter not 
addressed in its claim letter.  In addition, appellant introduces a new argument which claims 
the CO failed to follow prior ANF practices for converting scaling information and as such 

 
 
   
 
 
 
         
   
       
    
       
   
  
   
 
 
        
  
  
 
 
 
  
  
 
24 CBCA 588 
should be held to that prior practice.  Specifically, appellant references the Chappel 
Blowdown sale, where in a note on a daily log, the FS agreed to convert timber, for billing 
purposes, from Doyle to International scale.  Mr. Durner was listed as the CO on that sale; the 
daily log cited by appellant was dated May 16, 2005. Appellant’s Supplement, Exhibit 10, 
Attachment C.  
52. The FS attached to its briefing a declaration from Mr. Van Dyck.  Attached to 
the declaration were attachments as to the Forecon report and information on log scaling and 
cubic measure.  Appellant challenged Mr. Van Dyck’s declaration, asking that portions of it 
be stricken.  That has been addressed in a separate portion of this opinion, which follows. 
There, we strike portions of the affidavit dealing specifically with calculations as to the 
Forecon report and allow the remainder, including Mr. Van Dyck’s review of the CO’s 
decision.  In his review of the CO’s decision, Mr. Van Dyck made a number of observations. 
He stated that he reviewed the methodology the CO used to convert appellant’s volume 
information from the harvest (in  Doyle log scale) to ccf and found the CO’s conversion to 
be appropriate. He said a conversion from appellant’s figure to ccf was necessary before a 
valid comparison could be made to the contract estimate.  He further concluded that the CO’s 
analysis displayed in tables 2 and 3 of the CO’s decision, based upon the harvested volume 
provided by claimant, was the best available information, comparing the contract volume 
estimate with harvested volume.  Appeal File, Exhibits 704-05; Van Dyck Declaration ¶¶ 20­
27. 
53. Attachment C to the declaration of  Mr. Van Dyck was titled “Timber Volume 
Conversions.”  In its opening sentence, it states, “In order to understand why it is very difficult 
to convert between the different units of timber volume, it is important to understand what is 
being represented by each of the units of measure.”  The attachment describes cubic foot 
volume as the equivalent of a piece of wood 12 inches by 12 inches by 12 inches, or 1728 
cubic inches. The cubic foot volume of a log is a measure of all of the wood material it 
contains.  It does not include any bark or air space, but only solid wood.   The attachment 
shows three illustrations, each of one cubic foot of wood. The first is 12 inches by 12 inches 
by 12 inches.   The second is 6 inches by 12 inches by 24 inches. The last, which shows a 
one-foot long section of log from which the bark has been removed, is shown as a cylinder 
with a diameter of 13.5 inches and length of 12 inches.  The attachment also shows board foot 
volume illustrations describing a board foot as 1 inch by 12 inches by 12 inches and then 
includes illustrations of board foot variations.  The attachment also addresses conversions 
between different units.  There it provides that there is no simple mathematical conversion 
from one unit of measure to another, because the different units measure different things. 
Cubic foot volume includes only solid wood.   Board foot volume is only solid wood that can 
be made into boards. In explaining the relationship of cubic feet to board feet in measures, 
the attachment states, “Board foot volume is only calculated for larger diameter materials.  It 

    
 
  
  
 
 
  
  
      
   
 
 
 
  
    
    
 
  
   
 
  
 
 
25 CBCA 588 
seems like there should be 12 board feet per cubic foot, but remember that part of the cubic 
foot volume is lost in slabs and sawdust and possibly trim from the end of logs.”  The article 
continues, pointing out that a “ballpark figure” for an average size log is about 6 board feet 
to the cubic foot using the International scale and about 4.8 board feet using the Doyle scale. 
It continues, adding, as noted earlier, that the ratios vary greatly with the diameter of the logs, 
with smaller logs having a higher proportion of their volume lost as slabs, so that the ratio of 
board feet to cubic feet is lower for small logs and higher for large logs.  Van Dyck 
Declaration ¶¶ 22, Attachment C. 
54. The FS answers to interrogatories address scaling and the various rules.  The 
FS cited the publication “A Collection of Log Rules - General Technical Report - USDA 
Forest Service” (undated) by Frank Freese, a statistician with the Forest Products Laboratory 
in Madison, Wisconsin.  The following is from that publication and was provided by the FS 
in its answer: 
International 1/4-Inch Rule - “It is based on a very carefully reasoned analysis 
of the losses incurred during the conversion of sawlogs to lumber and is one of 
the few rules incorporating a basis for dealing with log taper.” This document 
used the International 1/4-inch rule as the standard against which all other log 
rules are compared. 
Doyle Rule - “This is one of the most widely used and roundly cursed log rules 
in existence.”  “It is not so widely used where timber is large or where Federally 
owned timber is involved. . . .” “Its primary characteristic and the main reason 
for its popularity, at least with buyers, is that it gives a very large overrun on 
small logs.”  “The primary weakness of the Doyle Rule is that the allowance for 
slabs and edgings (4 inches) is far too large for small logs and too small for 
large logs.”  In other words, the Doyle Rule greatly under-estimates the volume 
of small logs, including the upper logs of large trees, and it slightly over­
estimates the volume of large logs. 
Cubic Foot (Ccf) - Cubic feet (Ccf constitutes 100 cubic feet) is a measure of 
wood fiber content of a tree based on diameter and height measurement, and 
also includes taper adjustments. Cubic foot volumes are an estimate of the total 
amount of solid wood in the logs.  
Appellant’s Supplement, Exhibit 6, ¶ 21. 

   
 
   
 
 
    
   
   
 
 
  
     
     
 
      
     
   
 
   
26 CBCA 588 
Default /Suspension 
55. Because the parties briefed the matters surrounding Carr’s non-payment of the 
FS invoice and FS actions associated with collecting that invoice, we will briefly review those 
facts to better set the context of the overall dispute.  Carr, as part of its contract obligation 
(BT9.1), submitted a personal performance bond, backed by a letter of credit dated 
September 13, 2005, from Northwest Savings Bank for $71,000 to secure performance of the 
contract.  The letter of credit, secured by Gerry Carr’s personal guarantee and personal 
business assets, was scheduled to lapse on September 30, 2007.  Carr also submitted a 
payment bond, secured by a letter of credit for $100,000, from the same bank.  That was valid 
until September 22, 2006, subject to some renewal provisions.  In addition, Carr states that 
it had provided a down payment of $74,500 for the sale.  Appeal File, Exhibits 444-46, 509­
10; Appellant’s Supplement, Exhibit 1, ¶ 17. 
56. On February 3, 2006, Carr was billed $99,692.68 by the FS for timber cut and 
removed.  Payment was due on February 18, 2006. When Carr failed to make payment, the 
FS, by letter of March 2, asserted that Carr was in breach and gave it thirty days to remedy the 
situation. In a letter dated April 14, 2006, which reiterated Carr’s failure to pay, the FS stated, 
“At this time operations are suspended.”  Appeal File, Exhibits 515, 518-19, 570-72; 
Appellant’s Supplement, Exhibit 1, ¶ 21.  Carr has charged that the suspension was never 
withdrawn.  Appellant’s Supplement, Exhibit 1, ¶ 23.  The CO states that after the bill of 
collection was satisfied, Carr could have continued to operate the sale, provided that Carr 
submitted a new annual operating plan, which Carr did not. Appeal File, Exhibit 631; Durner 
Declaration 2 ¶¶ 11-12. 
57. By letter dated August 2, 2006, the FS notified Carr of the impending 
September 30, 2006, termination of the sale and told Carr it would collect the outstanding 
$99,692.68 through collection action against the payment bond. In its letter of  August 13, 
2006, the FS advised Carr that he had been granted a conditional extension of the contract to 
December 29, 2006.  In that same letter, the FS said that there had been no written request for 
a contract term adjustment or contract term extension and no work or activity was taking place 
on the sale.  The FS further said that Carr was liable for damages owed to the United States 
for non-completion of the contract, which the FS estimated to be $141,314.71 plus applicable 
costs.  That sum reflected the difference in value between the current contract value and the 
value of timber in the market, as of the date of the letter (the scope of damages set on the 
performance bond).  The sum and a demand for that sum was not formalized and not formally 
submitted to Carr until September 2007.  Appeal File, Exhibits 496, 581-85; Durner 
Declaration 2 ¶¶ 11-12. 

 
 
  
  
    
  
 
   
 
       
  
   
   
       
   
  
   
   
 
   
         
27 CBCA 588 
58. By letter of September 28, 2006, the CO responded to Carr’s claim and extended 
the contract for ninety days in order to give the CO time to consider the claim and in order to 
preserve the ability of the FS, should a final decision on the claim favor Carr, to refund any 
money through the timber sale account.   The letter did specify that no harvesting of timber 
should occur without the written consent of the CO or acting CO.  Carr never returned to the 
site.  Appeal File, Exhibit 631. 
Appellant’s Claimed Damages 
59.  In its complaint, appellant alleges that it is entitled to $86,286 under provision 
BT2.43 as a contract adjustment due to agency errors in the measuring and inputting of data 
dealing with tree heights, diameters, and overall sampling. Alternatively Carr alleges breach 
damages of $199,288.66.   Mr. Carr addressed the breach damages in more detail at 
paragraph 11 of his affidavit.  Appellant’s Supplement, Exhibit 1, ¶ 11. 
Discussion 
Motion Re: Van Dyke Declaration  
On November 16, 2007, appellant filed a motion to strike paragraphs 12, 13, 20, and 
21 through 27 from the declaration of Mr. Van Dyck. 
Paragraphs 12 and 13 discuss diameter data from the first and check cruises and the 
FS decision not to re-measure diameters.  Appellant says that Mr. Van Dyck’s statements are 
based on documents provided to him for purposes of his giving an expert opinion and that 
based on his deposition testimony, he  had not seen the documents or discussed them with the 
CO during the sale. The FS responds that Mr. Van Dyck is the regional measurement 
specialist and as such is responsible for “interpreting national and regional policy in terms of 
timber cruising [and] timber evaluation and . . . aid[ing] people in the development of crew’s 
[sic] plans, things involved in determining the volume of trees in a timber sale.”  Van Dyck 
Declaration ¶ 9.  Additionally, he was involved in development of sample methodology  and 
reviewed information on this sale as to sampling and cruising. Appeal File, Exhibit 44; Van 
Dyck Declaration ¶¶ 15, 17-18.  Moreover, as stated at paragraph 9 of his affidavit, he 
reviewed general cruise design to be implemented in Windy City and other sales, and as stated 
in paragraph  11 of that document, he was contacted after the first cruise and check cruise 
were completed for guidance and advice, including guidance as to tree diameter 
measurements.  Finally, his role in the preparation of the cruise plan, prospectus, and contract 
were all specifically identified in the FS’s answer to appellant’s interrogatories.  Appellant’s 
Supplement, Exhibit 6, ¶¶ 1-3, 10, 12. An affidavit from Mr. Van Dyck should not have been 
a surprise to appellant.   

 
      
  
       
   
   
   
    
 
    
        
   
 
    
   
 
     
      
  
    
28 CBCA 588 
Paragraph  20 addresses the Forecon report, including calculations and tables prepared 
by Mr. Van Dyck (converting the FS volume estimate to Doyle scale so as to compare it to 
Forecon’s data), but not seen by appellant until filed with the FS  brief.  Appellant says that 
it asked for expert reports in its request for documents and asserts that the Van Dyck analysis 
is not comprehensible without backup calculations, which would require further discovery. 
The FS asserts that appellant was or should have been aware of the data conversion issue 
when it produced the Forecon information during discovery and further that the same issue 
(Doyle versus the FS scale) was comprehensively addressed in the CO’s decision.  The FS is 
correct to a point. Differences in scaling were discussed in the CO’s decision; however, the 
decision addressed the matter in the context of timber that appellant had already harvested. 
Paragraphs 21 through 27, according to appellant, are mere commentary and argument 
concerning the CO’s decision and not statements of fact appropriate for an affidavit.   
We do not strike paragraphs 12 or 13.  The statements as to the tolerance fall within 
Mr. Van Dyck’s overall duties and involvement in this sale.  Appellant’s arguments go to the 
weight of the evidence.  Based on the information provided, we do strike that portion of 
paragraph 20 which deals directly with the result of calculations from the Van Dyck-attached 
report.  Appellant states it asked for all expert reports, and this is clearly one.   The FS does 
not deny that allegation.  Appellant makes a valid argument that without additional discovery, 
it is not in a position to mount an appropriate challenge to the contents of a report that it was 
unaware of.  As to the FS’s contention that appellant should have expected a comparison of 
Forecon, we agree in principle; however, the FS filed the analysis (report) with its brief and 
as such, the document existed prior to the filing and should have been shared.  For the above 
reasons, we strike as noted above and therefore do not rely on the Van Dyck comparison 
calculations as to the Forecon report for our conclusions in this decision.  
As to statements Mr. Van Dyck made in the questioned paragraphs regarding general 
comparisons and facts as to operation of Doyle, International, and ccf measurements, we 
allow that information to stand.  As to appellant’s attempt to support the strike on the basis 
that the report ignores conclusions of Forecon, we note that appellant’s argument goes to the 
weight, believability, and applicability of the Forecon report. As noted in our decision below, 
the Forecon report creates its own inconsistencies, independent of any conclusions Mr. Van 
Dyck drew. 
Finally, we do not strike paragraphs 21 through 27. The information provided is in line 
with Mr. Van Dyck’s position with the FS and involvement in the project. 

   
      
  
 
 
   
 
  
  
  
  
 
    
  
 
       
 
 
 
  
     
     
   
 
29 CBCA 588 
Merits  
Appellant contends that because the FS failed to comply with Handbook procedures 
in cruising the timber on this sale, the FS over-estimated the volume to be harvested  and sold 
on the sale.  This materially increased the amount appellant paid for the sale, money which 
appellant could not recoup because of insufficient timber.  Appellant identifies the failure to 
follow procedures as a breach of a contractual duty or breach of the duty of fair dealing. 
Appellant further charges that the actions of the FS resulted in a negligent estimate, 
identifying a number of claimed failures or deviations in the FS’s conduct of the cruising. 
Additionally, appellant seeks relief under clause BT2.43, a provision which allows adjustment 
to the bid quantities when an incorrect estimated quantity is caused by an error by the FS in 
calculations, area determination, or computer input.  Finally, appellant claims mutual mistake. 
On lump sum timber sales, such as Windy City, the FS provides a volume estimate 
(here in AT2) for the purpose of pricing the sale.  Unlike a scaled or measured sale, where the 
price paid is based on what is harvested, the price paid on a lump sum sale is established 
based on the estimate.  The sale price remains the same, notwithstanding that the purchaser 
might harvest more or less volume than advertised. Lump sum sales virtually always include 
standard disclaimer language and clauses that warn bidders not to fully rely on the estimate. 
The clauses specify that the volume estimate is not a guarantee.  In that regard, BT2.4, 
Quantity Estimate , provides, “[T]he estimated quantities stated in AT2 are not to be construed 
as guarantees or limitations of the timber quantities to be designed for cutting under the terms 
of this contract.” BT2.43, Adjustment for Quantity Errors, provides that no adjustments in 
quantity shall be made for variations in accuracy resulting from planned sampling and 
measuring methods or judgment of timber quantity or defect. Disclaimer clauses such as the 
two noted above have been regularly enforced.  D & L Construction Co. , AGBCA 96-207-1, 
00-2 BCA ¶ 30,926, at 152,655 (1999).  As the court explained in  Summit Contractors v. 
United States ,  21 Cl. Ct. 767, 776 (1990): 
A government timber volume estimate generally represents an “honest and 
informed conclusion” based on “all relevant information that is reasonably 
available.”  Cedar Lumber, Inc. v. United States , 5 Cl. Ct. 539, 545-46 (1984), 
quoting Womack v. United States , 182 Ct. Cl. 399, 412-13, 389 F.2d 793, 801 
(1968).  A timber contract estimate may convey a strict warranty of accuracy 
if the estimate forms the basis of the bargain between the parties, Everett 
Plywood and Door Corp. v. United States , 190 Ct. Cl. 80, 90-91, 419 F.2d 425, 
430-31 (1969), or the estimate may alternatively create a warranty of 
“reasonable accuracy” under which “a purchaser acting prudently is entitled to 
rely but which permits some flexibility for error before it gives rise to a breach 
of contract.”  Cedar Lumber, Inc. , 5 Cl. Ct. at 546 [citations omitted].  Either 

  
 
 
   
  
  
    
   
  
 
    
 
 
   
      
  
 
 
 
30 CBCA 588 
warranty may be disclaimed by clear and unequivocal contract language or by 
a strong government warning to potential bidders to rely on their own 
information when calculating their bids, not the information contained in the 
government estimate.  Gregory Lumber, Co. v. United States , 230 Ct. Cl. 1041, 
1043 (1982); Deal v. United States , 3 Cl. Ct. 151 (1983).  However, the 
government is not insulated from a breach of contract action by an otherwise 
unequivocal warranty disclaimer if the government estimate is grossly 
erroneous or negligently prepared.  Timber Investors Inc. v. United States , 218 
Ct. Cl. 408, 587 F.2d 472 (1978). 
Relying on the enforceability of the disclaimer language, the FS contends that even if its 
estimate was inaccurate (which it denies), the FS cannot be held financially responsible for 
the claimed underrun.   
When disclaimer clauses are enforced, there are three principal means through which 
one can pierce or override those clauses.  The first is where a purchaser can show that the FS 
breached a material contractual or regulatory duty in preparing the estimate, and as a result 
of the breach, the purchaser was damaged.  The second  allows relief where a purchaser can 
show that the volume was misstated as a result of the FS negligently conducting or 
quantifying the estimate.  The third vehicle for relief is set out in BT2.43, which, in addition 
to including disclaimer language, provides that quantities can be revised where the estimate 
was mistaken due to an error in calculations, area determination, or computer input. 
Cleereman Forest Products , AGBCA 2000-101-1, 02-1 BCA ¶ 31,664 (2001).  In many 
respects, the breach of duty and negligent estimate analyses involve looking at many of the 
same factual issues.  
The Cleereman  decision provided that notwithstanding clear disclaimers, such as those 
in the Windy City contract, the contract volume estimate was not absolutely shielded.  In first 
addressing the Government’s argument claiming a lack of reliance on the estimate by 
Cleereman, the board said, “The disclaimers by the Government and affirmative statements 
by the purchaser do not act as bar to relief, which is dictated both by the Adjustment in 
Volume clause (which requires correction without regard to purchaser reliance) and by breach 
of contract (because the Government failed to comply with contract provisions).”  Id. at 
156,449. The board continued, “The contract does not place upon the purchaser the risk of 
having the Government conduct the sale without regard to the dictates of the handbook, with 
which, the contract specifies, the Government’s actions are to comply.”  Id. 
Under the facts developed in  Cleereman,  the board concluded that the Government 
had used incorrect and unsupported tree counts and sample tree data in generating the volume 
estimate and that it did so contrary to Handbook requirements as to cruising.  The board 

  
  
  
   
 
 
    
 
 
   
 
 
   
       
 
     
    
 
 
 
 
31 CBCA 588 
stated, “The erroneous detailed cruise data resulted in computer input errors and calculation 
errors in determining the volume estimates.”  02-1 BCA at 156,449.  The board continued, 
noting that in addition to having identified errors under the Adjustment clause of the contract 
(the same BT2.43 as in Carr’s contract), the purchaser had also established a basis for broader 
relief, that being breach of contract.  Specifically, the board found that CT6.8 of the 
Cleereman contract specified that the estimated quantity of timber which was advertised had 
been determined by the standard procedures described in the Forest Service Timber Cruising 
Handbook.  The board found that the Government had failed to follow a number of critical 
procedures set out therein and as such failed to abide by the contractually described 
procedures in accumulating the detailed cruise data.  The board described the deviations from 
the handbook as “numerous and substantive, with a material impact on the volume estimates 
utilized in the contract.”  Id.  In Cleereman, CT6.8 specifically stated that the volume would 
be determined by using the Handbook.  The Carr contract has no such clause.   
To understand Cleereman, it needs to be emphasized that the board found that the 
Government provided no support for the credibility of its figures, that its volume estimates 
were based upon inaccurate tree counts, that tally cards could not be traced to trees, and that 
none of the check cruise data (although more accurate than the initial cruise) were used in 
determining volume estimates.  These were not errors in judgment or errors due to a selection 
of a particular cruising procedure.  In Cleereman , the Government simply did not do it right. 
The circumstances in Cleereman, at least in some respects, were so egregious that the board 
had no problem in deciding that the FS’s actions crossed a bright line that allowed the board 
to distinguish between denying breach relief for errors in judgment or choice of procedure 
and allowing relief where the errors stemmed from lack of due care or proper diligence. 
As noted  above, the Windy City sale contract did not contain CT6.8.  As such, the Carr 
sale contract does not specify, as did the contract in Cleereman , that the volume estimate was 
being determined by following and complying with the Handbook. Therefore, at least as to 
the claim for breach due to failure to follow the contract, Carr’s claim must fail. 
However, as an alternative or companion to failing to meet a contract provision, one 
can  establish breach by showing that the FS failed to comply with a regulation or mandatory 
procedure. The issue of the enforceability of the FS Handbook has been examined in that 
context.  In Rich Macauley , AGBCA  2000-155-3, 01-1 BCA ¶ 31,350, the board addressed 
non-compliance of the Government with policies and procedures, finding that the FS clearly 
failed on the Macauley contract to operate in compliance with provisions in the FS Handbook. 
Nevertheless, the board stated, 
As counsel for the FS correctly sets forth, in order for the provisions cited by 
Appellant to be subject to judicial enforcement against the Government, the 

  
 
    
 
 
  
  
    
  
 
    
   
 
  
 
   
 
  
   
32 CBCA 588 
pronouncements must first be shown to have the force and effect of law.  If the 
policies  and procedures are interpretive or general rules of practice, they will 
not be enforceable against the Government.  That is well established law.  
Id. at 154,813. 
The Macauley  decision held that notwithstanding noncompliance with the Handbook, 
McCauley was not entitled to relief.  That also applies here as to breach on the basis of failure 
to comply with Handbook procedures. 
As noted above, even if one fails to establish the breach of either a contractual or 
regulatory duty, a purchaser may still be able to recover on the basis of a negligent estimate. 
That, however, is not necessarily a simple task. In order to recover, a claimant has to prove 
that the FS’s actions were so unreasonable in performing the cruise so as constitute 
negligence.  Failure to comply with the Handbook will not alone support a finding of 
negligence. Negligence very much depends on the materiality of the deviations and a showing 
of how the alleged negligent acts, omissions, or deviations actually caused the estimate to be 
inaccurate and in error. Furthermore, much of appellant’s challenge goes to FS actions which 
appear to be  choices and decisions as to methodology and procedure, rather than the failure 
to properly carry out ministerial acts.  The former is not normally a basis for establishing 
negligence, absent a showing that the choices or decisions had no reasonable basis and that 
one using those procedures should have anticipated unacceptable errors.  Lance Logging Co. , 
AGBCA 98-140-1, et. al., 01-1 BCA ¶ 31,356, at 154,848, aff’d , 30 F. App’x 998 (Fed. Cir. 
2002);  Doug Jones Sawmill , AGBCA 94-193-1, 96-1 BCA ¶ 28,176, at 140,655.  
Before proceeding further, we note that a purchaser can also secure relief where it can 
show under BT2.43 that there is an error in quantity due to an input or calculation error by the 
FS in arriving at the estimate.   From our perspective, both parties have oversimplified the 
meaning and scope of this clause.  The FS is correct that an error in computer input would 
require that the recorded data being incorrectly put into the calculation is a transposition of 
numbers or failure to include data that was on the source documents, but somehow omitted 
during the transfer.  Input errors do not involve issues surrounding the reasonableness or 
appropriateness of numbers reached through judgmental or procedural decisions.  The FS, 
however, errs when it contends that the clause would not cover significantly inaccurate 
measurement, be it a failure to properly read a tape or failure to use a proper formula.  Those 
are errors in calculation.  That said, an error in calculation needs to involve misreading or 
some form of error as to addition, subtraction, or the like.  Errors in calculation, however, are 
not errors claimed in choosing one formula over another.  To the extent that one would have 
a case on the basis of challenging choices in FS procedure, that case would have to rely on 
proving negligence.  It would not be appropriate under clause BT2.43. As a  general rule of 

   
             
   
 
 
   
     
  
     
      
    
 
 
  
     
   
 
 
    
  
 
 
   
 
 
      
33 CBCA 588 
thumb, where numbers are arrived at through discretion or a judgment decision, the clause is 
not appropriate or applicable. 
Above is the basic legal framework a purchaser needs to establish to justify amending 
an estimate so as to allow recovery.  In this appeal, however, we do not have to analyze 
whether FS actions on this sale would otherwise allow Carr to qualify for relief under either 
negligence or clause BT2.43. That is because appellant cannot recover, absent establishing 
that the estimate provided by the FS was understated and not in line with the timber available 
for harvest. As a matter of law, appellant had no legal right to more timber than what was 
advertised. If the available timber was in line with the estimate, appellant cannot prevail; and 
that is so even if the FS erred its reaching a correct estimate. In this dispute, we conclude that 
appellant has failed to establish that the estimate was in error -- and in fact, we find that the 
evidence shows that the estimate was in line with what was likely available. 
This sale was advertised in ccf and not in board feet.  The information as to board feet 
was provided only as part of the prospectus, and even then, it was cited as being for 
information purposes only. The prospectus states in unequivocal terms that it is not the 
contract. Nevertheless, in analyzing whether the estimated volume was reasonably accurate, 
we have decided to look at the board foot information provided by the FS in the prospectus. 
We do that because we see our responsibility in this case as being to determine whether or not 
the estimated quantity was in line with what was actually available, and we find the 
information in the prospectus to be relevant in helping us make that determination.  That said, 
our consideration of the board foot quantity from the prospectus should not be taken to imply 
that we find the prospectus to be contractual. 
The FS sets out as a major component of its defense the proposition that appellant, in 
comparing what was advertised and what was harvested, miscalculated the difference, by both 
understating Carr’s claimed harvest volume and overstating the FS estimate as to volume.  It 
is undisputed that appellant applied one board foot measure scale to its harvest and then 
compared that result to the board foot volume in the prospectus, the volume in the prospectus 
having been calculated using a different scale of measurement.  Additionally, the FS charges 
that  appellant compounded the error by comparing net board feet to gross board feet, and then 
taking the claimed underrun (in board feet) and improperly converting that number to cubic 
feet.  Finally, the FS charges appellant may have further skewed its volume comparison by 
failing to include in its calculations timber that was not harvested but was merchantable under 
the contract (thereby understating what was available). While we have no hard evidence to 
support this as to the harvested timber, we do note that the Forecon report does indicate a 
divergent view from that of the FS as to what grade of timber was included in the cruise and 
contract estimate. 

 
   
 
     
      
   
  
   
 
 
     
  
     
         
 
  
  
 
 
  
  
      
 
34 CBCA 588 
It is undisputed that in the harvest versus estimate comparison calculated by appellant 
and sent to the CO in June 2006, the appellant used the Doyle scale to quantify its harvested 
timber in board feet. It is also undisputed that the board foot volumes set out in the prospectus 
(at UC5) were derived by using the International 1/4-inch rule.  Both scales are used for 
measurement in the timber industry. Appellant, like many loggers, typically uses the Doyle 
scale for measuring timber harvest.  There is no evidence that appellant selected the Doyle 
scale for purposes of skewing numbers.  However, the two scales clearly are not the same and 
one cannot make a valid one-to-one comparison when using both. 
Based on evidence from Mr. Van Dyck, including attachment C to his declaration, as 
well as information in the FS’s answers to interrogatories, a measurement using the Doyle 
scale will yield a lesser result (harvest volume) than a similar measurement using the 
International scale. Further, the difference will be increased where the size of the measured 
trees is relatively small, with Doyle tending to underestimate the volume of small logs.  The 
trees in this sale fall into the smaller category.  
In attempting to quantify the difference between using the Doyle and International 
scales, the FS cited the publication attached to Mr. Van Dyck’s declaration.  It identified the 
difference between the Doyle and International scales as roughly 6 compared to 4.8, with the 
Doyle count yielding the lower number.  But that does not tell the full story.  As Mr. Van 
Dyck stated, a fair comparison involves more than simply comparing the difference between 
6 and 4.8. The measures by Doyle and International scales are affected by additional factors, 
principal of which are the size of the tree being measured, the degree of defects, and on this 
sale, whether the parties are comparing net volume to net volume or net volume to gross 
volume.   
As explained on attachment C to the declaration of  Mr. Van Dyck and addressed in 
interrogatory answer 21a, the differential using the Doyle rather than International scale will 
increase as trees become smaller, with the Doyle scale underestimating the volume of small 
logs, including upper logs of large trees, and slightly overestimating the volume of large logs. 
Here, the FS asserted, and appellant has not rebutted, the trees in issue fell into the smaller 
range.  Therefore, the differential of 6 to 4.8 would be expected to be even greater in a 
comparison such as the one presented here by appellant.  Moreover, how much is harvested 
will also be affected by the number of defects encountered during harvest.  In presenting its 
comparison, appellant choses to compare its harvested quantity (which would reflect reduction 
for defects and be akin to a net volume) to the gross board foot column on UC5 (an estimate 
not reduced for defects).   A comparison to net board feet would have been more appropriate, 
and again, the use of different standards skews the difference.  Thus, fundamental differences 
in measure seriously undercut appellant’s claim.  Appellant has provided no significant or 

 
 
   
 
  
 
  
    
  
 
  
    
 
      
 
 
 
 
    
 
 
 
 
35 CBCA 588 
convincing evidence which we find rebuts the FS evidence as to the differences between the 
Doyle and International scales and the differences as to gross and net values.  
In addition, we not only find that appellant’s comparison of board feet volumes to be 
not susceptible to a one-to-one comparison, but also conclude that even if it were, there are 
fundamental problems in accurately converting board feet to cubic feet by simply applying 
a formula. Certainly, one can come up with a rough number; however, the preferred approach 
is clearly to calculate appellant’s harvest quantities in cubic feet, the volume standard set out 
in the contract.  Normally, board feet volumes and cubic feet volumes are developed through 
separate calculations.  
On this contract, the FS inputted data to arrive at an estimated quantity for the sale, 
including height, diameter, taper, and defects, and then with other elements ran a computer 
program to arrive at a estimated net ccf volume.  So, when the FS set out the estimate for this 
sale in ccf, that measurement was derived from raw cruise data and was measured based on 
the size and configuration of the trees.  When the CO made a comparison of appellant’s 
harvest data, he followed the same procedure, and his conclusion was that the data showed 
the harvest was in line with the estimate.  In contrast appellant took a measure of board feet, 
not what was specified in the contract, and compared that to an estimate of board feet in UC5 
which was neither contractual or comparable.  Given the choice, the FS evidence is 
considerably more convincing. 
Appellant, in mounting a challenge to the CO conclusion that the harvest volume was 
in line, claims that the CO overstated the count by including in it trees that did not meet 
merchantability standards.  Appellant is correct.  However, the CO has conceded the point. 
Moreover, the CO filed a second declaration in response to appellant’s opening brief, and 
there he stated that he conducted a new calculation, which took out the disputed trees. 
According to the CO, that calculation, while showing somewhat less of a harvest for 
appellant, still showed that the harvest and volume estimate in the contract were in line. 
Taking into account the evidence presented, we have on one side of the ledger a 
volume comparison using a scale which understated timber in comparison to the scale used 
on the contract estimate.   We have evidence that says that once scales are adjusted to the 
advertised measure, ccf, the harvest for that timber is in line with the estimate.  More 
important and convincing, we have a calculation by the FS using appellant’s tally sheets to 
calculate cubic feet for harvested timber and concluding from that exercise that there was no 
overall underrun for the harvested units, even once the incorrectly included trees were 
removed from the calculation.  But for appellant’s Doyle calculation, we have little on its side 
to support its claim as to the harvested area.  

 
  
 
     
  
      
  
 
   
 
 
 
  
     
 
 
 
     
 
  
 
  
36 CBCA 588 
Furthermore, when we then look at the unharvested units, we find little there to 
convince us as to appellant’s claim.  We find the Forecon report unconvincing in establishing 
that the FS made a bad estimate.  First, according to Mr. Van Dyck, Forecon used the Doyle 
scale, thus skewing any comparison with the FS numbers.  Appellant has not denied that 
Forecon used the Doyle scale. Further, we do not know whether Forecon used net or gross 
volume.  Even assuming it used net volume, we have earlier discussed the difficulties we see 
in the Doyle scale and with the fact that appellant is not comparing like standards. 
This was a total sale, and what controlled is not what was on each block but what was 
on the entire sale. We do not know if the potential harvest of block 8B was over or under the 
estimate.   It is noteworthy that when the CO calculated the harvested units, he found that 8A 
had a considerable overrun in favor of appellant.  Without any volume for 8B, we are left to 
guess what 8B would have shown and how it would have affected the overall claim.  We 
cannot assume that it would have necessarily been favorable to appellant. Further, we see no 
reason why data could not have been provided.  Appellant could have had Forecon survey 8B 
and then combined its claimed harvest volume with that of 8A, so as to come up with a total 
for block 8.  While there may have been problems with that data, it would have been better 
than the hole currently left before us.  
Finally, Forecon’s volume appears to be based on using grade 2 rather than grade 3 as 
the merchantability standard for comparing estimates.   The FS made this point in its opening 
brief.  Appellant has not challenged the point, and we find no basis not to accept the FS 
position.  Forecon having made its comparison using a different merchantability criteria 
further lessens any reliance on its report. We cannot know for sure how many trees may have 
been involved, but in this case, it is up to appellant to establish the underrun.  Forecon’s 
report, because of the matters noted above, did not establish its case. 
 Accordingly, we find the FS evidence convincing that appellant’s harvest as to black 
cherry was in line with the overall estimate, so that a breach for defective or negligent 
estimate is not available. Additionally, we do not find, relying on the FS conversion of the 
harvest, and the failures of the Forecon report (addressed earlier), that even if appellant could 
somehow find an input error, appellant has established for the overall sale that it would have 
had an underrun of greater than $1000 or 10%, the threshold being necessary to qualify for 
an adjustment under the clause.  We come to a similar conclusion as to the red maple, but 
there the dollar impact is minimal.          
In reaching the above conclusion, we have considered various points made by appellant 
in challenging the CO process and conversion.  We have already addressed the fact that the 
CO initially included some unmerchantable trees.  As to the contention that the FS calculation 
failed to properly account for quality defects, appellant has provided us no hard evidence or 
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37 CBCA 588 
basis in support. Further, it has not provided us evidence to put a number on such a failure, 
even if one had occurred, other than the total claimed underrun. The parties chose to submit 
this appeal on the record.  As such, to the extent that items are not more developed, that is a 
risk that was run.  We will not decide this case in favor of appellant based on guesses and 
speculation.  Appellant here has the burden of proving its claim.  It has not met that burden. 
We also have taken into account appellant’s argument that we should not accept the 
CO’s number as to appellant’s harvest because the CO used a table to calculate the harvested 
volume in ccf that included the entire geometric volume of the logs, and not just the 
sawtimber portion of the logs. While appellant charges that such is an improper measure, the 
FS points out that it used the entire log in its measure when it set the contract sale estimate in 
ccf.  Therefore, the FS was applying the same standard to appellant’s harvested quantity as 
it was to its estimated quantity.  Further, as reflected in the illustration on attachment C of the 
log cylinder, a ccf measure includes the entire cylinder and log, but for bark.  
We now turn to appellant’s claim that the FS must grant it relief because the FS has 
used a board-foot-to-board-foot calculation on other sales. The FS made such a one-to-one 
calculation on at least one other sale. That, however, does not obligate the FS to make such 
a calculation here.  Appellant is entitled to establish that it experienced an underrun; however, 
the FS in response has a right to establish that the quantity advertised and available were in 
line with what was available for removal. The FS is entitled to do that by using the most 
accurate comparison approach available. Here, the evidence overwhelmingly shows that for 
purposes of comparing volumes, the FS evidence is far more compelling.  On the arguments 
as to past practice, appellant has failed to establish either a legal course of dealing or trade 
practice, so as to sustain a right to the conversion it seeks. 
As a last legal point, appellant has also claimed mutual mistake.  Mutual mistake 
requires both parties being mistaken as to the same fact.   Throughout the contract, the FS 
makes clear that it is not warranting the estimate and that it recognizes potential risks. 
Accordingly, even if the estimate was in error, appellant could not establish a necessary 
element.  Here we find the estimate to be valid, and as such find for the FS. 
Decision 
The appeal is DENIED . 
HOWARD A. POLLACK 
Board Judge 

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38 CBCA 588 
We concur: 
STEPHEN M. DANIELS CATHERINE B. HYATT 
Board Judge Board Judge