DENIED: June 2, 2015
CBCA 2621
JOSEPH GRASSER t/a GRASSER LOGGING,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
Joseph L. Luciana III of Dingess, Foster, Luciana, Davidson & Chleboski LLP,
Pittsburgh, PA, counsel for Appellant.
Vincent Vukelich, Office of the General Counsel, Department of Agriculture,
Milwaukee, WI, counsel for Respondent.
Before Board Judges DANIELS (Chairman),1 GOODMAN, and KULLBERG.
DANIELS, Board Judge.
Joseph Grasser t/a Grasser Logging (Grasser) entered into a timber sale contract with
the United States Forest Service (FS), an entity within the Department of Agriculture. 
Grasser claims that it is entitled to a rate redetermination under the contract or monetary
damages under common law in an amount of either $1,021,815 or $1,651,357 because of the
1 The previous presiding judge has been replaced on the panel because of her
upcoming retirement.

CBCA 2621 2
defective condition of some of the timber (black cherry trees) which was to be cut.  A FS
contracting officer denied the claim, and Grasser appealed his decision.
In its complaint, Grasser pleads four separate counts as justification for relief.  Each
of them is based on the fact that the black cherry trees suffered from insect damage.  In
count I, Grasser says that this damage was an unexpected event which entitles the contractor
to a rate adjustment under contract clause BT8.12.  In count II, Grasser asserts that the
damage was catastrophic, entitling the contractor to a rate adjustment under contract clause
BT3.32.  In count III, Grasser maintains that “both parties expected that the black cherry saw
timber . . . would produce a reasonable percentage of high-grade logs for resale,” and that
the insect damage was a “hidden condition” which entitles the contractor to a rate adjustment. 
In count IV, Grasser contends that the FS misrepresented the condition of the timber by
failing to disclose its “institutional knowledge” of the damage, and that the misrepresentation
“materially and wrongfully induced Appellant to submit his bid and enter into the contract.” 
(Grasser recognizes that counts III and IV are alternative bases for relief; both cannot be
correct.)
  
Earlier this year, we denied a motion for summary relief submitted by Grasser on the
issue of catastrophic damage to black cherry trees.  Joseph Grasser v. Department of
Agriculture, CBCA 2621, 15-1 BCA ¶ 35,896.  The FS now moves for summary relief in the
entire case, relying on the same uncontested facts and much of the same reasoning we
expressed in denying Grasser’s motion.  In ruling on the FS’s motion, we incorporate by
reference the “Background” section of our earlier decision and note certain portions of that
section which are especially pertinent to our analysis.
The FS advertisement of the sale estimated that in the designated area, 3003 hundred
cubic feet (CCF) of timber would be available for cutting and that the value of that timber
would be $931,743.58.  Of the six species for which estimates were provided, the one with
the greatest quantity and value was black cherry sawtimber (an estimated 1357 CCF, which 
at a rate of $654.31 per CCF, would be worth $887,898.67).
The FS’s invitation for bids included a clause entitled “Disclaimer of Estimates and
Bidder’s Warranty of Inspection.”  This clause stated:
Before submitting this bid, the Bidder is advised and cautioned to
inspect the sale area, review the requirements of the sample sale 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.

CBCA 2621 3
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, without any reliance on Forest Service
estimates of timber or forest product quality, quantity or 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 product as is without any warranty of quality
(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.[2]
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.
Grasser submitted a bid in the amount of $1,310,519.90, predicated in part on a rate
of $940.07 per CCF for black cherry timber – nearly 44% higher than the FS’s estimate for
the stated volume.  Grasser believed that it could maximize its profit by selling black cherry
as veneer and export logs.  The parties entered into their contract on December 3, 2008.
Grasser cut approximately two-thirds of the trees in the designated area and says that
it has received total revenue of about $950,000, of which $921,026.28 was from black cherry
trees.  After initial sales, the contractor was unable to sell the black cherry timber as veneer
and export logs.  The contractor asserts that defoliation rings – the result of insect infestation
– caused kiln-dried lumber to separate, making the timber unacceptable to customers as
veneer or export logs.  In its opposition to the FS’s motion, Grasser says that it “has incurred
or will incur a loss of at least $650,000” on the contract.  Appellant’s Statement of Genuine
Issues ¶ 23.
The FS relies heavily on the Disclaimer of Estimates and Bidder’s Warranty of
Inspection in advancing its motion.  The agency notes that the disclaimer required Grasser
to warrant that its bid was submitted solely on the basis of its own opinion and provided that
the FS disclaimed various warranties of fitness, quality, or quantity of the timber.  The FS
notes that with regard to issues regarding volume estimates, this Disclaimer has been held
to be “explicit and unambiguous,” and that “[r]eliance by the purchaser on the . . . estimates
2 Neither party has referenced the sample contract, so we assume that it does not
contain any statements which are relevant to the matter before us.

CBCA 2621 4
in pricing its bid is not reasonable.”  Lance Logging Co., Inc., AGBCA 98-137-1, et al., 01-1
BCA ¶ 31,356, at 154,847-48, aff’d sub nom. Lance Logging Co. v. Veneman, 30 F. App’x
908 (Fed. Cir. 2002); see also Cochran Lumber Co. v. Department of Agriculture, CBCA
895, 09-2 BCA ¶ 34,154.  The FS suggests that “[a]ll of the allegations contained in the
complaint filed by Grasser . . . , and all of the legal theories put forth in the response to the
[FS] Motion are based on ignoring the contract which governs in this case.”  Respondent’s
Reply at 2.
The FS addresses in its motion each of the four counts in Grasser’s complaint. 
Count I implicates contract clause BT8.12, “Liability for Loss.”  This provision states in
pertinent part:
If Included Timber is destroyed or damaged by an unexpected event that
significantly changes the nature of Included Timber, such as fire, wind, flood,
insects, disease, or similar cause, the party holding title shall bear the timber
value loss resulting from such destruction or damage; except that such losses
caused by insect or disease after felling of timber shall be borne by Purchaser,
unless Purchaser is prevented from removing such timber for reasons that
would qualify for Contract Term Adjustment.
The FS points out that the Court of Federal Claims has held that “clause B8.12 merely sets
out the common-law principle that the party holding title bears the risk of loss” and applies
“after the contract of sale is entered into.”  Trinity River Lumber Co. v. United States, 66 Fed.
Cl. 98, 113 (2005) (regarding a slightly different version of BT8.12).  The nature of the
included timber was not changed after the contract was entered into, the FS asserts, because
the black cherry was advertised as sawtimber and was sold by Grasser as sawtimber.  The FS
also maintains that Grasser’s interpretation of the phrase “unexpected event” is unreasonable
because it would qualify, under the liability for loss provision, any event occurring over the
lifetime of the growth period of trees.
Count II of the complaint makes an argument similar to the one made in count I,
except with reference to contract clause BT3.32.  This clause requires the contracting officer
to adjust contract rates in the event of catastrophic damage.  Such damage is defined in
clause BT2.133, which we addressed in our decision on Grasser’s motion for summary relief. 
Catastrophic damage is a “major change or damage to Included Timber” which meets two
requirements.  It must be (a) “[c]aused by forces, or a combination of forces, beyond control
of Purchaser, occurring within a 12-month period, including, but not limited to, wind, flood,
earthquake, landslide, fire, forest pest epidemic, or other major natural phenomenon” and (b)
“[a]ffecting the value of any trees or products meeting Utilization Standards, within Sale
Area and estimated to total either: (i) More than half of the estimated timber quantity stated

CBCA 2621 5
in AT2 [the volume estimates] or (ii) More than two hundred thousand cubic feet (2,000
CCF) or equivalent.”  We held in our earlier decision that this provision cannot apply here
because the timber alleged to have been damaged by forest pest epidemic did not meet the
test of element (b) – the black cherry timber was less than half of the estimated timber
quantity (1357 CCF is less than half of 3003 CCF) and less than 2000 CCF.  Further, the FS
contends, any insect damage occurred over a period of three decades, not “within a 12-month
period,” so the damage is not “catastrophic” under the test of element (a), either.
Count III asserts a mutual mistake.  Cochran Lumber explains that:
The elements of mutual mistake of fact that would, if proven, allow for relief
include: (1) the parties to the contract were mistaken in their belief regarding
an existing fact; (2) that mistaken belief constituted a basic assumption
underlying the contract; (3) the mistake had a material effect on the bargain;
and (4) the contract did not put the risk of mistake on the party seeking
reformation.
09-2 BCA at 168,837 (quoting CH2M Hill Hanford Group, Inc. v. Department of Energy,
CBCA 708, 08-2 BCA ¶ 33,871, at 167,666 (citing Dairyland Power Cooperative v. United
States, 16 F.3d 1197, 1202 (Fed. Cir. 1994))).  The FS notes that in Cochran, the Board held
that “[w]here the FS makes clear throughout the contract that it is not warranting [an]
estimate and that the purchaser was assuming risks, even if the estimate was in error,
appellant is unable to establish a mutual mistake of fact.”  Id.
Count IV alleges misrepresentation.  The FS cites to Joseph M. Hutchison v. General
Services Administration, CBCA 752, 08-1 BCA ¶ 33,804, at 167,341, for the proposition that
“[t]o constitute misrepresentation the Government had to represent as true certain elements
which it knew were false.”  The FS says that with regard to this timber sale, it did not
represent as true anything which it knew was false.
Grasser opposes the motion strenuously.  It maintains that the disclaimer which the
FS believes is key to resolution of this case does not apply because the contractor is claiming
that the black cherry timber was damaged.  Grasser contends further that granting summary
relief to the FS is premature because the contractor has not yet had an opportunity to
complete discovery by taking the deposition testimony of three current or former
representatives of the agency.  In this regard, it calls to our attention this passage from
Burnside-Ott Aviation Training Center, Inc. v. United States, 985 F.2d 1574, 1582 (Fed. Cir.
1993) (quotations and citations omitted):

CBCA 2621 6
The Supreme Court has made clear that summary judgment is inappropriate
unless a tribunal permits the parties adequate time for discovery.  Indeed,
summary judgment should be refused where the nonmoving party has not had
the opportunity to discover information that is essential to [its] opposition.
Grasser also posits that summary relief is inappropriate because genuine issues of
material fact exist as to various issues.  These issues are, at a minimum:
(1) the black cherry trees in the Re-Ad Timber Sale [the sale with which we
are concerned] suffered (and were continuing to suffer) catastrophic damage;
(2) the [FS] failed to disclose the material fact that the black cherry trees had
suffered (and were continuing to suffer) damage due to defoliation rings
resulting from multiple past defoliation events caused by forest pest epidemic;
(3) the [FS] misrepresented the minimum price of the black cherry saw timber
in the Re-Ad Timber Sale; (4) the [FS] gave an express warranty that the black
cherry timber was not damaged, was “high value” and could be sold at higher-
than-market price; or, (6) alternatively, the [FS] and Grasser were mutually
mistaken regarding the fact that black cherry trees were not damaged.
Appellant’s Brief in Opposition at 2-3.3
Discussion
As we noted in our decision on Grasser’s motion for summary relief:
Resolving a dispute on a motion for summary relief is appropriate when the
moving party is entitled to judgment as a matter of law, based on undisputed
material facts.  The moving party bears the burden of demonstrating the
absence of genuine issues of material fact.  All justifiable inferences must be
drawn in favor of the nonmovant.  Celotex Corp. v. Catrett, 477 U.S. 317
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
3 Later in its opposition, Grasser says that “there are genuine disputes of material
fact on the issues of:  (1) defoliation rings in black cherry trees constitute ‘damage,’ not
internal defects; (2) damage occurred to the black cherry trees during a 12-month period; and
(3) damage to the entire ‘estimated quantity’ of black cherry trees in the Timber Sale
Contract satisfies the definition of catastrophic damage.”  Opposition at 12.

CBCA 2621 7
Grasser, 15-1 BCA at 175,485.
 
In considering the FS’s motion, we address the four counts of Grasser’s complaint in
reverse order.
Count IV asserts that the FS misrepresented the condition of the timber.  According
to Grasser, the FS knew from its own records and research, and the fact that it had conducted
three salvage sales in the same general area, that the black cherry trees in the sale area “had
suffered multiple defoliation events caused by forest pest epidemic.”  Opposition at 1.  The
FS did not disclose this information, Grasser says, “but, instead, advertised black cherry trees
as a green sale with above-average minimum.  In fact, the [FS] further affirmatively
represented those black cherry trees as ‘high value.’”  Id.  The contractor says further that
“the words and conduct of the [FS] created an express warranty to Grasser that the black
cherry timber was not damaged, was ‘high value’ and could be sold for higher than market
price.”  Id. at 24.
The “high value” assertion evidently derives from two facts.  First, five months prior
to advertising this sale, the FS had advertised an identical sale with an estimated value for
black cherry timber of nearly twice the amount posited for the sale at issue in this case. 
Second, the estimated value for the black cherry timber for the sale in question was slightly
above the average market price at the time.  Grasser says that “when the [FS] reduced the
minimum price for the black cherry in the [sale in question] to an amount that was closer, but
still higher than, average market price, Grasser submitted a bid in reliance upon the
representation that the black cherry trees were of high value.”  Opposition at 6.
We do not find any misrepresentation here.  The FS provided prospective bidders
(including Grasser) with estimates of the quantity and value of timber in the sale area –
nothing more.  Grasser does not complain about the quantity estimate.  As to the value
estimate for black cherry timber, the timber was worth somewhat more than the FS had
projected, despite the insect damage.4  In any event, Grasser warranted that its bid was
4 Grasser devotes a great deal of attention, in a lengthy exhibit to its Opposition,
to the argument that in estimating the value of the black cherry timber, the FS did not follow
its own guidelines or act consistently with the way in which it estimated the value of timber
in other sale areas.  This matter is important, the contractor says, because the procedures used
by the FS to establish market value “constituted an affirmative misrepresentation of the
minimum price of timber in the . . . Sale.”  Opposition at 24.  The agency’s failure to follow
its procedures is the one matter which the contractor says it needs depositions to explore.  Id. 
(continued...)

CBCA 2621 8
“submitted solely on the basis of its examination and inspection of the quality and quantity
of the timber . . . offered for sale and [was] based solely on its opinion of the value thereof
and its costs of recovery, without any reliance on [FS] estimates.”  The FS expressly
disclaimed any warranty of quality, quantity, or fitness of the timber.  Grasser extrapolated
from various facts to come to its own conclusions about the value of the black cherry timber. 
Those conclusions may have been overly optimistic, resulting in a business decision which
the contractor now regrets – but that is not the FS’s fault.  The Government does not
guarantee the value of timber products.  Nor does it guarantee a contractor’s profits in timber
sales or other contracts.  Hearthstone, Inc. v. Department of Agriculture, CBCA 3725, 15-1
BCA ¶ 35,895, at 175,481 (quoting Natus Corp. v. United States, 371 F.2d 450, 458 (Ct. Cl.
1967)).
Count III of the complaint, alleging mutual mistake, fails for similar reasons.  In
attempting to justify this count and fit within the legal standards for claims of mutual
mistake, Grasser makes assertions which we consider unfounded.  See Opposition at 25-26. 
Given the disclaimer language, the Board cannot conclude that the FS knew or believed that
the black cherry timber was “high value timber that could be sold at higher-than-market
price, particularly as veneer and export logs” – the FS knew that Grasser had this belief, but
it never indicated any concurrence in the thought.  Thus, saying, as the contractor does, that
both parties were mistaken in this belief is not correct.5  Further, the contract put the risk of
mistake on the contractor, not the FS.  The FS’s citation to our statement in Cochran applies
4 (...continued)
Whether Grasser’s contention about failure to follow procedures is true or not is irrelevant
to our resolution of this case; even if it is true, that does not affect the outcome.  The FS
expressly made no representation; under the Disclaimer of Estimates clause, the risk that the
ultimate value of the timber might be less than estimated was assumed by the contractor. 
Further, even if the FS estimate of the value of the black cherry timber could be deemed a
representation on which a contractor might rely, this estimate was lower than the actual value
of the timber, so it cannot have constituted a misrepresentation which prejudiced Grasser.
Given these conclusions, any information which could be derived from depositions would
not be “information that is essential to [the contractor’s] opposition,” Burnside-Ott, 985 F.2d
at 1582, so ruling on the motion for summary relief without affording the contractor the
opportunity to take depositions is not precluded.
5 The contractor strains credulity with another argument as to this point.  It says
that the insect damage “rendered the black cherry of little or no value.”  Opposition at 27. 
By its own admission, the contractor derived from selling the black cherry timber it cut under
this contract nearly one million dollars –  more than the FS had estimated.  That value cannot
conceivably be considered “little or no.”

CBCA 2621 9
to the situation here:  “Where the FS makes clear throughout the contract that it is not
warranting [an] estimate and that the purchaser was assuming risks, even if the estimate was
in error, appellant is unable to establish a mutual mistake of fact.”  09-2 at 168,837.
In Count II, Grasser maintains that the black cherry timber suffered catastrophic
damage, such that a change in the contract’s rate of payment is required.  To constitute
“catastrophic damage,” as that term is defined in contract clause BT2.133, damage must meet
two separate tests.  In our earlier decision in this case, we determined that the second of these
tests, which we labeled (b), could not be met because the allegedly damaged timber was
insufficient in volume.  Grasser disagrees with this conclusion and asks us to revisit it.  The
first requirement for timber to have been the subject of catastrophic damage, which we
labeled (a), is that it must have been “[c]aused by forces, or a combination of forces, beyond
control of Purchaser, occurring within a 12-month period, including, but not limited to, wind,
flood, earthquake, landslide, fire, forest pest epidemic, or other major natural phenomenon.” 
Grasser raises two points regarding this requirement.  First, it suggests that the term “within
a 12-month period” is ambiguous, so reading it to mean “a 12-month period during the life
of the contract” is unreasonable; the ambiguity should be construed against its drafter, the
FS.  Second, says Grasser, we should follow the decision in Don Dwyer Development Co.,
AGBCA 2000-107-1, 02-2 BCA ¶ 31,980, and hold that insect damage that is progressive
and occurs after (as well as before) a timber sale contract is entered into constitutes
catastrophic damage.
We decline to revisit our conclusion as to requirement (b).  Grasser did not timely ask
us to reconsider it, see Board Rule 26(c) (48 CFR 6101.26(c) (2014)), and it advances no
arguments on the matter which are different from the contentions it made earlier.  We do not
agree with either of Grasser’s arguments as to requirement (a).   We discuss the first here and
the second with regard to count I, below.  A contract provision which is not patently
ambiguous may be construed against the drafter under the rule of contra proferentem.
The essential ingredients of the rule are: (1) that the contract specifications
were drawn by the Government; (2) that language was used therein which is
susceptible of more than one interpretation; (3) that the intention of the parties
does not otherwise appear; and (4) that the contractor actually and reasonably
construed the specifications in accordance with one of the meanings of which
the language was susceptible.
HPI/GSA-3C, LLC v. Perry, 364 F.3d 1327, 1334 (Fed. Cir. 2004) (quoting W. Contracting
Corp. v. United States, 144 Ct. Cl. 318, 326 (1958) and adding emphasis).  Grasser does not
meet the last part of this test.  It argues in its Opposition that “a defoliating event is
necessarily an event that occurs ‘within a 12-month period’ because the defoliation only

CBCA 2621 10
occurs during the leaf growing season, which is always less than 12-months in the . . .
location of the Sale Area.”  Opposition at 16.  This interpretation is not reasonable.  It 
essentially reads the twelve-month period requirement out of the contract clause, for if
defoliation can only occur during such a period, any major damage by insects at any time
would be catastrophic.  Even if, as Grasser suggests, the FS could be better served by stating
in the clause when the twelve-month period can begin (or end), the agency has not made the
argument the contractor poses as a straw man.  Documentation Grasser has appended to its
Opposition makes clear that sources which were publicly available prior to the FS’s
advertisement of this sale noted and discussed insect damage in the area of the sale as
occurring since the 1980s and extensively in the 1990s.  Whenever the twelve-month period
might be construed to run, it is clear that the insect damage to the black cherry trees in the
sale area has a far lengthier history than any particular twelve-month period.  Thus, even if
we were wrong in concluding that the damage cannot be deemed “catastrophic” under the
volume test ((b)), the damage is not “catastrophic” under the other test ((a)).
Count I fares no better than count II.  Here, we are asked to focus on clause BT8.12’s
statement that with a specified exception, “[i]f Included Timber is destroyed or damaged by
an unexpected event that significantly changes the nature of Included Timber, such as . . .
insects, . . . the party holding title shall bear the timber value loss resulting from such
destruction or damage.”  Don Dwyer discussed the application of a clause like BT8.12 at
length.  It concluded that the clause in Dwyer’s contract did not preclude a finding that insect
damage (blue stain, there) which began before the contract period and continued into that
period justified a rate adjustment.  In Dwyer, the FS argued that the damage had to be
unexpected to qualify, but the board held that because the clause did not contain the word
“unexpected,” the agency’s reading was not persuasive.  02-2 BCA at 158,042-43.  The
board noted, “[I]f the FS wants to put the risk of loss for expected insect and disease
deterioration on the purchaser . . . , it can insert language in its future contracts to do that.” 
Id. at 158,044-45.  That is exactly what the FS has done here: it has inserted the word
“unexpected” into the clause.  Because the extensiveness and long duration of insect damage
was known (at least through the published documents cited in a study included in the exhibit
to Grasser’s Opposition), finding that damage during the contract period cannot be
considered unexpected.  Dwyer is consequently not controlling.
Decision
We conclude that while there are clearly disputes between the parties as to the matters
raised in Grasser’s complaint, there are no genuine issues of material fact which prevent our
resolving any of these disputes on the Forest Service’s motion for summary relief.  The issues

CBCA 2621 11
advanced by Grasser concern matters of law and issues which are irrelevant to the case.  We
grant the motion, thereby DENYING THE APPEAL.
_________________________
STEPHEN M. DANIELS
Board Judge
We concur:
_________________________ _________________________
ALLAN H. GOODMAN H. CHUCK KULLBERG
Board Judge Board Judge