DENIED: September 4, 2014
CBCA 3911
L&L EXCAVATING & LAND CLEARING, LLC,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
Larry E. Strickland, Manager of L&L Excavating & Land Clearing, LLC, Oak Hill,
OH, appearing for Appellant.
Vincent F. Vukelich, Office of General Counsel, Department of Agriculture,
Milwaukee, WI, counsel for Respondent.
Before Board Judges VERGILIO, POLLACK, and DRUMMOND.
VERGILIO, Board Judge.
On June 19, 2014, the Board received a notice of appeal from L&L Excavating &
Land Clearing, LLC (purchaser) concerning its Lyra Timber Sale contract, 0914-03001506,
with the Forest Service, Department of Agriculture (agency).  Idled by the Government
shutdown in 2013, the purchaser seeks to recoup $18,540, said to be lost income for three
days during which additional work was not found to provide substitute income.  The
contracting officer denied the claim, relying upon the contract language which permits
compensation for certain out-of-pocket expenses incurred during a suspension but prohibits
the recovery of lost profits.
The contract anticipates such periods of non-performance and provides for time
extensions but not for compensation of lost profits or income.  The suspension of
performance caused by the Government shutdown does not constitute a breach of contract


CBCA 3911 2
by the agency.  The purchaser is not entitled to the relief sought.  Accordingly, the Board
denies the appeal.
Findings of Fact
1. With an award date of September 2, 2011, the purchaser and agency entered
into a contract under which the purchaser was to cut and remove specified timber and provide
road maintenance.  Exhibits 2, 31 (all exhibits are in the appeal file).
2. The contract contains a Contract Term Adjustment clause, under which the
period of performance could be extended.  One identified cause supporting an extension is
acts of the Government which interrupt the purchaser in active operations for ten or more
consecutive days during a normal operating season.  Exhibit 31 at 183 (¶ BT8.21).
3. The contract’s Out-of-Pocket Expenses clause states:
“Out-of-Pocket Expenses” are Unrecovered expenditures arising directly from
performing the contract that were rendered unrecovered due to delay,
interruption, or termination pursuant to BT8.33 or BT8.34.  An expenditure is
“Unrecovered” within the meaning of this Subsection when Purchaser did not
gain the benefit of its expenditure because Contract operations were not
permitted.  In determining whether an expenditure is “Unrecovered,”
Contracting Officer shall not conclude that an award of liquidated damages
constitutes the benefit of that expenditure.
(a) Out-of-Pocket Expenses shall not include, in particular and
without limitation, any of the following:
. . .
(iii) expectancy damages; and,
(iv) anticipatory profits.
Exhibit 31 at 187 (¶ BT8.35).  The clause identifies the only expenses that the agency may
reimburse.  Exhibit 31 at 187 (¶ BT8.35(b) (the agency “shall reimburse Purchaser for only
the following Out-of-Pocket Expenses”--which do not include anticipated income or profit).
4. By written directive dated October 7, 2013, the contracting officer informed
the purchaser that there were no appropriations for fiscal year 2014, and that pursuant to legal
requirements in the Antideficiency Act and under Attorney General opinions, the agency was
unable to administer existing timber sale contracts except for the minimal activities necessary
to bring about a prompt and orderly suspension of ongoing operations.  The contracting

CBCA 3911 3
officer ordered the purchaser to suspend operations upon prompt completion of required
erosion control work and seasonal road maintenance work.  The order further noted that,
following the completion of shutdown requirements, allowable activities would include
equipment maintenance or removal from the sale area.  Exhibit 7 at 53.
5. On October 8, 2013, the parties discussed the need for the purchaser to track
out-of-pocket expenses should it seek reimbursement under BT 8.33 due to the shutdown. 
Exhibit 8 at 57.  On October 10, 2013, with erosion control complete, the purchaser removed
equipment from the site.  Exhibit 8 at 58.
6. On October 17, 2013, the Government shutdown ended.   Seeking to establish
a time frame for the purchaser’s resumption of performance, the contracting officer inquired
of the purchaser.  The purchaser could, conditions permitting, resume operations at that time. 
Exhibit 9 at 60.  However, due to the weather, site conditions meant that an immediate return
to work was not possible.  Exhibit 8 at 59.
7. Site conditions did not permit reentry until November 4, 2013, when the agency
approved reentry to the site.  Exhibit 12 at 71.  During November 2013, the purchaser moved
equipment to the site and resumed logging operations.  Exhibits 12 at 72-73, 14 at 94.
8. In December 2013, the purchaser requested a contract term adjustment (CTA)
due to the Government shutdown and other matters.  The agency granted a CTA of nine days
because of the Government shutdown (October 10-18) and ten days because of subsequent
weather which prevented a resumption of operations (October 19-28).  Exhibits 15 at 95, 17
at 105-06.
9. Through claims and revised claims the purchaser sought to recover expenses.
The agency has paid some or a portion of some out-of-pocket expenses not in dispute here
(such as equipment move out and return costs, and equipment cleaning costs).  Exhibits 18,
21 at 113, 23 at 137.  At issue here is the $18,540 the purchaser describes as a lost time
expense.  The purchaser calculates income that would have been received for paperwood
products and saw logs during three days of the shutdown during which the purchaser was
unable to obtain replacement work.  Exhibit 24.
10. By decision dated April 22, 2014, the contracting officer denied this aspect of
the claim, with the explanation:  “This claim is not being considered an out of pocket expense
per BT8.35 Out-of-Pocket Expenses.  I consider this to be an anticipatory profit that is not
an unrecovered expense, per BT 8.35(a)(iv).”  Exhibit 26 at 147.
11. On June 13, 2014, the purchaser submitted a notice of appeal.  Exhibit 30.

CBCA 3911 4
Discussion
The purchaser wants to be put in the position it says it would have been in but for the
suspension of its contract, namely, receiving income on days when it was idle.  However, the
contract makes no promise that work will be uninterrupted.  Instead, through the Contract
Term Adjustment clause, the contract recognizes that performance may be interrupted
because of sovereign acts or other causes beyond the control of the purchaser.  The clause
permits term adjustments, thereby extending the period for performance, and specifies that
there is to be no recovery of lost income or profits.  Findings 2, 3.
The purchaser’s claim suggests invoking those cases which recognize that a contractor
may be put in the position in which it would have been but for a breach of contract by the
Government.  However, the suspension of performance during the Government shutdown
and furlough of employees does not here amount to a breach.  The Contract Term Adjustment
clause demonstrates that the contract contemplated such a cause for delay.  The agency acted
within the terms of the contract in suspending performance.  The sovereign act does not
constitute a breach by the agency.
Under the language of the contract, the suspension because of the lack of funding and
furlough of employees does not represent an agency breach.  The purchaser has received
additional money and compensation for out-of-pocket costs arising from its additional
efforts.  The purchaser is not entitled to recover the lost income sought here.
Decision
The Board DENIES the claim.
______________________________
JOSEPH A. VERGILIO
Board Judge
We concur:
______________________________ ______________________________
HOWARD A. POLLACK JEROME M. DRUMMOND
Board Judge Board Judge