ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

Chloeta Fire, LLC ) 

) 

Under Contract No. W9128F-l l-M-E023 ) 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 59211 

Mr. Mark D. Masters 

Chief Executive Officer 

Thomas H. Gourlay, Jr., Esq. 

Engineer Chief Trial Attorney 

Melissa M. Head, Esq. 

Engineer Trial Attorney 

U.S. Army Engineer District, Omaha 

OPINION BY ADMINISTRATIVE JUDGE THRASHER 

This appeal arises out of a contract to perform a prescribed bum on approximately 

650 acres of federal land at Fort Randall, South Dakota. The government does not 

believe the contractor, Chloeta Fire, LLC (Chloeta), completed the prescribed bum on all 

the acres required and refused to remit Chloeta the full contract price. Chloeta asserts it 

did complete the contract and is entitled to the full contract price. The parties 

have chosen to proceed solely upon the record submitted, 1 pursuant to Board Rule 11. 

We have jurisdiction pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. 

§ § 7101-7109. Only entitlement is before the Board for decision. 

FINDINGS OF FACT 

A. Background 

1. The U.S. Army Corps of Engineers (government or USACE) administers 

approximately 18,066 acres of federal land located on Fort Randall, South Dakota, 

through the USACE Fort Randall Project (project). The government awarded Contract 

No. W9128F-l l-M-E023 (contract) to Chloeta on 23 September 2011 to provide a 

prescribed bum of vegetation on a specific track of approximately 650 acres of the project 

land. The initial period of performance was from 30 September 2011 to 30 September 

2012. (R4, tab 4 at 1, 5) The original contract price was $52,888.30 (id. at 3). 

1 The submitted record consist solely of the Rule 4 file (tabs 1-7) and appellant's 

supplemental Rule 4 file (tabs 1-4). 
were: 

2. The performance work statement (PWS) stated the objectives of the contract 

To effectively bum all vegetation on approximately 650 acres 

of federal land administered by the USA CE Fort Randall 

Project. The purpose of the prescribed bum is to suppress and 

control invasive eastern red[ ]cedar, reduce the biomass of 

cedar piles that were cut and stacked in 2009, increase the 

abundance of native cool and warm season grasses and forbs, 

and to decrease the abundance of non-native species. 

(R4, tab 4 at 5, if 1.3) 

3. The contract defined the scope of work in relevant part as follows: '"The 

contractor shall complete the prescribed bum on approximately 650 acres of federal land 

administered by the USACE Fort Randall Project that complies with the standards in this 

PWS. Services include ... 2) a complete bum of all the vegetation and downed cedar piles 

located within the 650 acre unit." (R4, tab 4 at 5, if 1.4) 

4. The PWS described the specific tasks under the contract in pertinent part as: 

5.1. Basic Services: The contractor shall provide prescribed 

bum services on approximately 650 acres of federal land 

administered by the USACE Fort Randall Project. Services 

include 1) the preparation of a bum plan that has been 

approved ... ,2) a complete bum of all the vegetation and 

downed cedar piles located within the 650 acre unit .... 

5.2.1. Bum Plan and Prescribed Bum: The contractor shall be 

required to write a bum plan[2

1 that has been approved ... to 

completely bum all vegetation and downed cedar piles located 

within the 650 acre unit of federal land administered by the 

USACE Fort Randall Project. 

(R4, tab 4 at 15) 

2 The bum plan was not included within the record. 

2 
5. Contract paragraph 1.6.10 describes the point of contact's (POC's) pertinent 

general duties as: 

The POC monitors all technical aspects of the contract and 

assists in contract administration. The POC is authorized to 

perform the following functions: assure that the contractor 

performs the technical requirements of the contract; perform 

inspections necessary in connection with contract 

performance; maintain written and oral communications with 

the contractor concerning technical aspects of the contract; 

issue written interpretations of technical requirements, 

including government drawings, designs, specifications; 

monitor contractor's performance and notifies both the KO 

and contractor of any deficiencies; coordinate availability of 

government furnished property; and provide site entry of 

contractor personnel. 

(R4, tab 4 at 7) Paragraph 4.6.8 provides the POC with the responsibility to determine when 

the work has been satisfactorily completed and the authority to accept the work stating in 

pertinent part, "Payment will be made after satisfactory completion, inspection, and 

acceptance by the POC of all contract work performed" (R4, tab 4 at 15). Mr. Cody Wilson 

was the POC during performance (app. supp. R4, tab 1 at 2, if 8)3 

B. Contract Performance 

6. In March 2012, Chloeta personnel mobilized to the site to begin site preparation 

for the bum. Burning operations were halted due to an extreme drought. As a result, the 

contract was amended by Modification No. POOOOl to extend the period of performance 

until 31May2013 (R4, tab 6). Chloeta submitted an invoice for services rendered to that 

point and was paid a partial payment of $19,000 to cover on-site preparations, travel, and 

planning. (App. supp. R4, tab 1 at 1, if 5) 

7. On 27 February 2013, the contract was further modified by Modification 

No. P00002 to make an equitable adjustment due to unavoidable weather delays. The 

price of the contract was increased by $21, 801.11 to include costs for additional 

mobilization and demobilization, and other direct and indirect costs, increasing the total 

contract price to $74,689.41. (R4, tab 7; app. supp. R4, tab 1 at 1, if 6) 

3 Ms. Dawn Rodriguez was appointed POC at award. The contract also stated that a letter 

would be issued identifying the POC's specific responsibilities and limitations. 

(R4, tab 4 at 7, if 1.6.11) No such letter was included in the record. 

3 
8. Chloeta personnel performed a bum on 27 April 2013. Approximately 60-70% 

of Eastern Red Cedars on-site were consumed, and all Eastern Red Cedar piles were 

burned. (App. supp. R4, tabs 1, 2, 3, ~ 7) Mr. Stanton, Chloeta's fire management 

officer, testified that: 

The evening of the bum I met with Cody Wilson in his office. 

Wilson told me that he expected a consumption rate of Eastern 

Red Cedar of approximately 30%. I asked Mr. Wilson ifthe 

bum had met his objectives and he said yes. He estimated a 

mortality rate of approximately 70% of the cedars, which I 

concurred with. 

(App. supp. R4, tab 3 at 2, ~ 8) 

9. Mr. McAffrey, Chloeta's division chief, testified that the following day he 

accompanied Mr. Wilson as he conducted a final inspection of the project site during 

which Mr. Wilson told him that the project was complete and extremely successful. He 

also testified that he asked Mr. Wilson if Chloeta could demobilize from the work site, to 

which Mr. Wilson replied yes. (App. supp. R4, tab 2 at 2, ~ 10) 

10. On 5 May 2013, Chloeta submitted an invoice in the amount of $55,689.41. The 

government refused to pay the full amount, and instead calculated payment for $43,739.10. 4 

On 9 May 2013, Chloeta resubmitted its invoice in the amount of$43,739.10, the total 

remaining balance according to the government, minus an earlier payment of $19,000. In 

May 2013, Chloeta was paid the $43,739.10. (R4, tab 2 at 3-4, ~~ 16-17, 19) 

C. Chloe ta 's Claim 

11. On 3 June 2013, Chloeta submitted a claim for $11,950.31, asserting it 

completed the work under the contract and was entitled to payment of the remaining 

contract price (R4, tab 3). Chloeta argued that the deduction was improper because the 

government misinterpreted the requirements of the contract, asserting: 

First and foremost, the Schedule of Items does not afford the 

agency a per acre pricing strategy; a lump sum was to be paid 

for one ( 1) prescribed bum completion, which is what 

occurred. When referring to the Schedule of Items in this 

4 The invoices were not included in the record but the parties do not dispute these facts. 

However, the government's date for Chloeta's first invoice differs from 

Mr. Master's affidavit which states the invoice was submitted on 27 May 2013 

(app. supp. R4, tab 1 at 2, ~ 10). We do not find this discrepancy to be relevant in 

deciding this appeal. 

4 
contract, it is clear that payment was not intended to be based 

on a per acreage completion basis. Rather, the schedule 

indicates a quantity of one ( 1) prescribed bum with a unit of 

Lump Sum (not Acre) to be completed with an approved bum 

plan on approximately six hundred fifty ( 650) acres per the 

contract specifications. 

(Id. at 1) Chloeta's claim also asserted Mr. Wilson had accepted the work, as follows: 

(Id. at 3) 

[A] final inspection of the project site occurred on the day 

after the prescribed bum was completed. Representing the 

Contractor at this meeting was Project Superintendent 

Brian Chad McAffrey and representing the Government as the 

[POC] listed in the contract was Cody Wilson, Natural 

Resources Manager. Mr. Wilson conveyed to McAffrey that 

the project was complete and extremely successful. 

Therefore, we were surprised when we received word from 

your office that the contract price would not be paid in full. 

Had we been aware that Mr. Wilson found the work 

unsatisfactory or unacceptable, we would have addressed 

Wilson's concerns immediately. Instead, our personnel 

demobilized from the work site back to Oklahoma on the 

understanding that the project was considered a complete 

success by the Government POC, Cody Wilson. 

12. The contracting officer (CO) issued a final decision (COFD) on 12 December 

2013 denying Chloeta's claim in its entirety (R4, tab 2). The COFD explained the CO's 

interpretation of the contract requirements supporting her decision: 

The contract delineated that approximately 650 acres of land 

was to be burned by the Contractor. The contract further 

showed a map of the area to be burned. The Contractor, using 

its own discretion, did not bum over 100 acres of land as it 

was required to do under the Contract. The Contractor burned 

approximately 550 acres ofland. The Contractor's decision to 

not bum these remaining 100 acres was due to weather 

conditions and other pending work for a different contract. 

Under the contract, the Contractor was charged with 

"determining burning conditions due to facts such as weather 

prior to mobilization to the site." ... The contract placed 

squarely on the Contractor responsibility to "inspect the sites 

5 
where services are to be performed to satisfy themselves as to 

all general and local conditions that may affect the cost of the 

performance of the contract." The Contractor did not bum 

over 100 acres indicated within the mapped region of this 

project to be burned. Therefore, the Government is not 

required to pay for services not rendered. 

(R4, tab 2 at 5, ~ 3) Responding to Chloeta's assertion that it completed the job and 

Mr. Wilson accepted the job, the COFD's finding of facts differed from those in Chloeta's 

claim, stating: 

In April 2013, the Contractor remobilized to the site, 

reestablished the necessary fire control lines, and developed 

an ignition plan that used topography to divide the area into 

two units. Ignition occurred on the main unit on April 26, 

2013, with a successful completion by late that evening. The 

plan was for the Contractor to return on April 27, 2013, to 

bum the second unit. Corps employee, Cody Wilson, met 

with the Contractor on site the morning of April 27, 2013, 

after they conducted a reconnaissance on the second unit. It 

was the Contractor's opinion at that time that the second unit 

would not bum effectively due to the developing weather 

conditions that day. Mr. Wilson discussed with the 

Contractor's employee, Chad [McAffrey ], the possibility of 

the Contractor returning to complete the bum or the potential 

of a price adjustment to reduce the contract proportionally for 

the unburned portion. Mr. [McAffrey] indicated that the 

Contractor had another bum to attend and that the Contractor 

would work through a fair price adjustment if they could not 

return within the contract period of performance. 

(R4, tab 2 at 3, ~ 14) To reinforce her argument, the COFD findings of fact also 

referenced an email from Mr. Wilson, stating: 

On May 9, 2013, Mr. Wilson sent you an email further 

explaining why the contract price was reduced due to the 

contract not being fully performed. In this email, Mr. Wilson 

stated: 

As I stated before, I am very pleased with the results of 

the portion that was completed and applaud you on 

your top notch crew. Ifby chance you would like to 

take a run at completing the remaining portion, our 

6 
(R4, tab 2 at 3, ~ 18) 

bum window runs through May 31. However, I am 

assuming that will not be feasible for you and that we 

will need to mod the contract to let you out of the 

remaining requirement which we are willing to do. 

Mr. Wilson further relayed to the Contractor to submit 

a final invoice "anytime for the remaining $1,045.66." 

13. Chloeta appealed the COFD to the Board on 12 March 2014 asserting 

entitlement to $12,018.93. On 2 April 2015, the parties agreed to proceed solely upon the 

record submitted, pursuant to Board Rule 11. 

14. Chloeta provided evidence in the form of sworn affidavits that industry practice 

in the prescribed fire community defines a complete bum as less than a 100% bum rate 

within the prescribed bum area. Mr. Masters' testified that "[i]t is unrealistic from my 

professional experience to expect that 100% of all fuel at a prescribed fire site will be 

consumed by the prescribed fire" (app. supp. R4, tab 1 at 2, ir 13). Mr. McAffrey's 

testimony echoed Mr. Master's, stating: 

In my experience, it is impossible to bum 100% of all 

vegetation at a prescribed bum site. In the prescribed fire 

community, a bum at a site with similar fuels as the Fort 

Randall Project site achieving 60-70% consumption of 

Eastern Red Cedar would be considered extremely successful 

and would be considered a "complete" bum. 

(App. supp. R4, tab 2 at 1, ~ 7) The government did not proffer any evidence to rebut this 

testimony. We find this testimony of these witnesses to be credible based upon the 

evidence of their professional experience in the prescribed bum community (app. supp. 

R4, tab 1 at 1, ~ 3, tab 2 at 3-4). 

15. Two Chloeta employees testified about their conversations with Mr. Wilson in 

support of Chloeta's contention that Mr. Wilson accepted the work and authorized 

Chloeta to demobilize (app. supp. R4, tabs 1-3). Mr. Stanton's sworn affidavit stated: 

The evening of the bum I met with Cody Wilson in his office. 

Wilson told me that he expected a consumption rate of Eastern 

Red Cedar of approximately 30%. I asked Mr. Wilson ifthe 

bum had met his objectives and he said yes. He estimated a 

mortality rate of approximately 70% of the cedars, which I 

concurred with. On the following day Mr. Wilson conducted 

7 
a final inspection and said that the project was successful and 

complete. 

I was surprised to learn that the Government refused to pay 

Chloeta the entire contract price. At the completion of the 

project Mr. Wilson had said that the bum had achieved a 

higher consumption rate than anticipated and that the project 

was complete and highly successful. The day following the 

bum, Chloeta demobilized with Mr. Wilson's approval that 

the project had been completed to his satisfaction. 

(App. supp. R4, tab 3 at 2, iii! 8, 9) Mr. McAffrey's sworn affidavit stated: 

Only approximately 30% of the Eastern Red Cedar remained 

untreated. In a prescribed bum it is impractical to completely 

·bum 100% of the vegetation on site. In my conversations on 

site with Cody Wilson, he recognized this fact and stated that 

he was only expecting about 30% of the Eastern Red Cedar to 

be consumed. We estimated that a total of 25 acres of the 

project area had not been burned due to snow cover on the 

north aspect. Cody Wilson told me that this unburned area 

should not be a problem in getting paid for the project, since 

this area would likely never bum. He did not request that we 

come back at a future time to attempt to bum this area. 

A day later, I accompanied Cody Wilson as he conducted a 

final inspection of the Project site. Wilson told me that the 

project was complete and extremely successful. I asked if we 

could demobilize from the work site, and he said yes. 

(App. supp. R4, tab 2 at 2, ii~ 9, 10) The government did not submit any testimony or 

documentation to contradict Mr. McAffrey or Mr. Stanton's testimony on this issue. 

Additionally, the government did not indicate Mr. Wilson was unavailable to provide his 

account of his conversations and action on this issue. 

DECISION 

Appellant argues the government misreads the contract language, interpreting the 

price to be measured on a per-acre or percentage basis of the bum (app. br. at 7). Instead, 

appellant asserts the contract language required it to "complete a bum of all vegetation 

and downed cedar piles within the unit," i.e., within the 650 acres, not a bum of all 650 

acres. Since appellant safely conducted the bum by consuming all of the downed cedar 

piles and approximately 60-70% consumption of the standing cedar, which within the 

8 
prescribed bum community is considered a complete bum, appellant asserts it is entitled 

to the remaining balance of the contract price because it satisfactorily completed the 

contract. (App. br. at 6) In contrast, the government, argues that the contract language is 

unambiguous that appellant was required to complete a burn on all 650 acres identified. 

Consequently, since appellant admits it did not burn all the vegetation of the 650 acres 

(over a 100 acres), the government argues we should reject appellant's interpretation of 

the contract. (Gov't br. at 4-6) 

Appellant readily admits it did not burn 30-40% of the standing Eastern Red Cedar 

on site. Despite this, appellant proposes two arguments why it completed the job and is 

entitled to payment of the full price. 

First, appellant argues that: 

In the prescribed fire community, a burn at a site 

with similar fuels as the Fort Randall project achieving 

60-70% consumption of the ERC would be considered 

extremely successful and would be considered a 

"complete" burn. CFI CEO Mark Masters has over 

14 years' experience in prescribed burning. He testified that 

in his professional, expert opinion, it is unrealistic to expect 

that 100% of all fuel at a prescribed fire site would be 

consumed by the prescribed fire. Thus, when the overall 

ecological objectives are met or exceeded, as they were at 

this project, the contractor is entitled to full payment 

without deductions for fuel not consumed, as 100% 

consumption is not practically attainable. 

(App. br. at 6) (Citations omitted) 

Second, appellant argues that the government, the POC Mr. Wilson, accepted their 

performance when he told appellant the project was complete to the government's 

satisfaction and specifically approved appellant to demobilize its crew (app. br. 6-7). The 

government does not argue that Mr. Wilson lacked the requisite authority to accept 

appellant's performance but instead argues that appellant's version of the conversation 

between Mr. Wilson and appellant's employees never occurred; that Mr. Wilson never 

accepted the work under the project as complete or approved appellant's demobilization 

(gov't br. at 6). 

Our findings establish Mr. Wilson was the POC and the contract delegated 

authority to the POC to determine if appellant had completed the job and to accept 

performance under the contract (finding 5). Thus, we conclude Mr. Wilson possessed 

authority under the contract to accept the work. Henry Angelo & Co., ASBCA 

9 
No. 30502, 87-1BCAii19,619. The government did not question his authority to accept 

the work only whether acceptance factually occurred. 

Whether there was government acceptance is a question of fact and the burden of 

proof is on appellant to prove acceptance. Hogan Construction, Inc., ASBCA No. 39014, 

95-1BCAii27,398 at 136,595 (citing Henry Angelo & Co., 87-1BCAii19,619). 

Appellant proffers two sworn affidavits from Chloeta employees testifying to their 

personal interaction with Mr. Wilson to prove acceptance (finding 15). We find this 

testimony credible and that appellant has met its burden of proof on this issue. 

In rebuttal, the government relies solely upon two finding of fact in the COFD as 

evidence that Mr. Wilson did not accept appellant's work; one finding that recounts a 

conversation between Mr. Wilson and Chloeta employees on 27 April 2013 and a second 

finding quoting an email from Mr. Wilson to appellant on 9 May 2013 (finding 12). We 

have long held that COFD findings of fact have no presumptive evidentiary weight and 

are not binding on the parties or the Board. The parties have the burden of proving their 

case de nova. Wilner v. United States, 24 F.3d 1397, 1401 (Fed. Cir. 1994) (en bane) 

(findings of fact in a COFD are not binding upon the parties and are not entitled to any 

deference); Precision Specialties, Inc., ASBCA No. 48717, 96-1BCAii28,054 at 

140,087 (a final decision retains no presumptive evidentiary weight nor is it binding on 

the Board); 41 U.S.C. § 7103(e). Thus, the burden of production has shifted to the 

government to rebut appellant's proof on this issue. 

Mr. Wilson's testimony would be credible evidence of whether or not he accepted 

appellant's performance. However, the government did not submit any testimony from 

Mr. Wilson or anyone else. Instead, the government completely relies upon the findings 

of fact in the COFD. Further, the government did not indicate Mr. Wilson was 

unavailable to testify. Likewise, the government did not submit Mr. Wilson's email of 

9 May 2013 as part of the record. The Board may, as we do in this instance, draw adverse 

inferences from a parties' failure to call witnesses whose testimony would otherwise be 

expected to be favorable to it. Nobe General Construction, ASBCA No. 51105, 00-2 BCA 

ii 31,099 at 153,595 (citing Grunley-Walsh Construction Co., ASBCA No. 33004, 90-1 

BCA ii 22,362 at 112,343); Wilner Construction Co., ASBCA No. 32449, 88-2 BCA 

ii 20,614 at 104,174. Consequently, we conclude the government has failed to rebut 

appellant's evidence of government acceptance. We conclude Mr. Wilson possessed the 

authority to accept the work and did approve appellant's completion of the job and thus, 

accepted appellant's performance.5 

5 Given we conclude the government is bound by Mr. Wilson's acceptance of appellant's 

Performance, we need not address the parties' arguments regarding interpretation 

of the contract requirements. 

10 
CONCLUSION 

Appellant's appeal is sustained. The matter is remanded to the parties to negotiate 

quantum. 

Dated: 9 November 2015 

I concur 

MARK N. STEMPL 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

JO 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

RICHARD SHACKLEFORD 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 

I certify that the foregoing is a true copy of the Opinion and Decision of the Armed 

Services Board of Contract Appeals in ASBCA No. 59211, Appeal of Chloeta Fire, LLC, 

rendered in conformance with the Board's Charter. 

Dated: 

11 

JEFFREYD. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals