### ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of

-- ) ) 

### ChloetaFire, LLC ) ) 

### Under ContractNo. W9128F-ll-M-E023 ) APPEARANCE FORTHEAPPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 59211

Mr. Mark D. Masters

ChiefExecutive Officer Thomas H. Gourlay, Jr., Esq.

Engineer ChiefTrial Attorney MelissaM. Head, Esq.

Engineer Trial Attorney U.S. Army Engineer District, Omaha OPINION BYADMINISTRATIVE JUDGE THRASHER This appeal arises out ofa contract to perform aprescribed bumon approximately 650 acres offederal land at FortRandall, South Dakota. The government does not believe the contractor, ChloetaFire, LLC (Chloeta), completedthe prescribedbumon all the acres required and refused to remit Chloetathe full contractprice. Chloeta asserts it did complete the contract and is entitled to the full contractprice. Theparties have chosen toproceed solely upon the record submitted, 1

### pursuantto BoardRule 11. We havejurisdictionpursuantto 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 ofEngineers (government orUSACE) administers approximately 18,066 acres offederal land located onFortRandall, South Dakota, through the USACE FortRandall Project (project). The government awarded Contract No. W9128F-ll-M-E023 (contract) to Chloeta on 23 September 2011 to provide a prescribed bum ofvegetation on a specific track ofapproximately 650 acres ofthe project land. The initial period ofperformance 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 submittedrecord consist solely ofthe 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 ofthe contract

To effectively bum all vegetation on approximately 650 acres offederal land administered by the USACE Fort Randall Project. Thepurpose ofthe prescribed bum is to suppress and control invasive eastern red[ ]cedar, reduce the biomass of cedarpiles that were cut and stacked in 2009, increase the abundance ofnative cool and warm season grasses and forbs, and to decrease the abundance ofnon-native species. (R4, tab 4 at 5, 

### if 1.3) 3. The contract defined the scope ofwork in relevant part as follows: '"The contractor shall complete theprescribed bum on approximately 650 acres offederal land administered bythe USACEFort Randall Project that complies with the standards in this PWS. Services include

...2) a complete bum ofall the vegetation and downed cedarpiles 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 pertinentpart as: 5.1. Basic Services: The contractor shall provide prescribed bum services on approximately 650 acres offederal land administered by the USACE Fort Randall Project. Services include 1) the preparation ofa bumplan that has been approved

...,2) a complete bum ofall the vegetation and downed cedarpiles located within the 650 acre unit

....

5.2.1. BumPlan and Prescribed Bum: The contractor shall be required to write a bumplan[21 

### that has been approved

...to completely bum all vegetation and downed cedarpiles located within the 650 acre unit offederal land administered by the USACE Fort Randall Project. (R4, tab 4 at 15)

2 

### The bumplan was not included within the record.

25. Contractparagraph 1.6.10 describes the point ofcontact's (POC's) pertinent general duties as: The POC monitors all technical aspects ofthe contract and assists in contract administration. The POC is authorized to perform the following functions: assure thatthe contractor performs the technical requirements ofthe contract; perform inspections necessary in connection with contract performance; maintain written and oral communications with the contractor concerning technical aspects ofthe contract; issue written interpretations oftechnical requirements, including government drawings, designs, specifications; monitor contractor'sperformance and notifies boththe KO and contractor ofany deficiencies; coordinate availability of government furnished property; andprovide site entry of contractorpersonnel. (R4, tab 4 at 7) Paragraph 4.6.8 provides the POC with the responsibility to determine when the work has been satisfactorily completed andthe authority to accept the work stating in pertinentpart, "Paymentwill be made after satisfactory completion, inspection, and acceptance by the POC ofall contract work performed" (R4, tab 4 at 15). Mr. Cody Wilson was the POC duringperformance (app. supp. R4, tab 1 at 2, 

### if 8)3
B. ContractPerformance
6. In March 2012, Chloetapersonnel mobilized to the site to begin sitepreparation for the bum. Burning operations were halted due to an extreme drought. As a result, the contract was amended by ModificationNo. POOOOl to extend the period ofperformance 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 ofthe contract was increasedby $21,801.11 to include costs for additional mobilization and demobilization, and other direct and indirect costs, increasing the total contractprice 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 statedthat a letter would be issued identifyingthe POC's specific responsibilities and limitations. (R4, tab 4 at 7, 

### if 1.6.11) No such letter was included in the record.

38. Chloetapersonnel performed a bum on 27 April 2013. Approximately 60-70% ofEastern Red Cedars on-site were consumed, and all Eastern Red Cedarpiles were burned. (App. supp. R4, tabs 1, 2, 3,**~** 7) Mr. Stanton, Chloeta's fire management officer, testified that: The evening ofthe bum I met with Cody Wilson in his office. Wilson told me that he expected a consumption rate ofEastern Red Cedar ofapproximately 30%. I asked Mr. Wilson ifthe bumhad met his objectives and he said yes. He estimated a mortality rate ofapproximately 70% ofthe 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 ofthe project site during which Mr. Wilson told him that the project was complete and extremely successful. He also testified that he asked Mr. Wilson ifChloeta 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, Chloetaresubmitted its invoice in the amount of$43,739.10, the total remaining balance according to the government, minus an earlierpayment of$19,000. In May 2013, Chloeta was paidthe $43,739.10. (R4, tab 2 at 3-4,**~~** 16-17, 19) C. Chloeta 's Claim 11. On 3 June 2013, Chloeta submitted a claim for $11,950.31, asserting it completedthe work under the contract and was entitledto payment ofthe remaining contractprice (R4, tab 3). Chloeta argued that the deduction was improper because the government misinterpreted the requirements ofthe contract, asserting: First and foremost, the Schedule ofItems 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 ofItems in this

4 The invoices were not included in the record butthe 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.

4contract, it is clearthat payment was not intended to be based on a per acreage completionbasis. Rather, the schedule indicates a quantity ofone (1) prescribed bum with a unit of Lump Sum (not Acre) to be completed with an approved bum plan on approximately sixhundred fifty (650) acres perthe contract specifications. (Id. at 1) Chloeta's claim also asserted Mr. Wilson had accepted the work, as follows:

(Id. at 3) [A] final inspection ofthe project site occurred on the day after the prescribed bumwas 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 conveyedto McAffrey that the project was complete and extremely successful. Therefore, we were surprised when we receivedword from your office thatthe contractprice would not be paid in full. Had we been aware thatMr. Wilson found the work unsatisfactory orunacceptable, we would have addressed Wilson's concerns immediately. Instead, ourpersonnel 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 ofthe contractrequirements supporting her decision: The contract delineated that approximately 650 acres ofland was to be burnedby the Contractor. The contract further showed a map ofthe area to beburned. The Contractor, using its own discretion, did not bum over 100 acres ofland as it was required to do underthe Contract. The Contractorburned approximately 550 acres ofland. The Contractor's decision to not bumthese remaining 100 acres was due to weather conditions and otherpending work for a different contract. Under the contract, the Contractor was charged with "determiningburning conditions due to facts such as weather priorto mobilization to the site."

...The contractplaced squarely on the Contractorresponsibility to "inspectthe sites



### 5where services are to be performed to satisfy themselves as to all general and local conditions that may affect the cost ofthe performance ofthe contract." The Contractor did not bum over 100 acres indicatedwithin the mapped region ofthis projectto 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 thejob and Mr. Wilson accepted thejob, the COFD's finding offacts 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 usedtopography to divide the area into two units. Ignition occurred onthe main unit on April 26, 2013, with a successful completion by late that evening. The plan was for the Contractorto return on April 27, 2013, to bumthe secondunit. Corps employee, Cody Wilson, met withthe Contractor on site the morning ofApril 27, 2013, afterthey conducted a reconnaissance onthe second unit. It was the Contractor's opinion at thattime that the second unit would not bumeffectively due to the developing weather conditions that day. Mr. Wilson discussed with the Contractor's employee, Chad [McAffrey], the possibility of the Contractorreturning to complete the bum orthe potential ofaprice adjustmentto reduce the contractproportionally for the unburned portion. Mr. [McAffrey] indicated that the Contractor had another bumto attend and that the Contractor would work through a fair price adjustment ifthey could not return within the contractperiod ofperformance. (R4, tab 2 at 3,**~** 14) Toreinforce her argument, the COFD findings offact also referenced an email from Mr. Wilson, stating: OnMay 9, 2013, Mr. Wilson sent you an email further explaining why the contractprice 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 yourtop notch crew. Ifby chance you would like to take a run at completing the remaining portion, our

6(R4, tab 2 at 3,**~** 18)bumwindowruns 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 ofthe remaining requirement which we are willing to do.
Mr. Wilson further relayed to the Contractorto submit a final invoice "anytime for the remaining $1,045.66."

13. Chloeta appealedthe 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, pursuantto Board Rule 11. 14. Chloetaprovided evidence in the form ofsworn affidavits that industry practice in the prescribed fire community defines a complete bum as less than a 100% bum rate withinthe prescribedbum area. Mr. Masters' testified that "[i]t is unrealistic from my professional experience to expect that 100% ofall 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% ofall 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 ofthese witnesses to be credible based upon the evidence oftheirprofessional experience in the prescribed bum community (app. supp. R4, tab 1at 1,**~** 3, tab 2 at 3-4). 15. Two Chloeta employees testified about their conversations with Mr. Wilson in support ofChloeta's contention that Mr. Wilson accepted the work and authorized Chloetato demobilize (app. supp. R4, tabs 1-3). Mr. Stanton's sworn affidavit stated: The evening ofthe bumI met with Cody Wilson in his office. Wilson told me that he expected a consumption rate ofEastern Red Cedar ofapproximately 30%. I asked Mr. Wilson ifthe bumhad met his objectives and he said yes. He estimated a mortality rate ofapproximately 70% ofthe cedars, which I concurred with. Onthe following day Mr. Wilson conducted

7a final inspection and said that the project was successful and complete.
I was surprisedto learn that the Government refused to pay Chloeta the entire contractprice. At the completion ofthe project Mr. Wilson had said that the bumhad 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 projecthadbeen completed to his satisfaction. (App. supp. R4, tab 3 at 2, 

### iii! 8, 9) Mr. McAffrey's sworn affidavit stated: Only approximately 30% ofthe Eastern Red Cedarremained untreated. In a prescribedbum it is impractical to completely ·bum 100% ofthe vegetation on site. In my conversations on site with Cody Wilson, he recognized this fact and statedthat he was only expecting about 30% ofthe Eastern Red Cedarto be consumed. We estimated that a total of25 acres ofthe project area hadnot beenburned due to snow cover on the north aspect. Cody Wilson told me that this unburned area should not be a problem in gettingpaid for the project, since this area would likely neverbum. He did notrequest that we comeback at a future time to attempt to bumthis area. A day later, I accompanied Cody Wilson as he conducted a final inspection ofthe Project site. Wilson told me that the projectwas complete and extremely successful. I asked ifwe 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 ofhis 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 orpercentage basis ofthe bum (app. br. at 7). Instead, appellant asserts the contract language required it to "complete a bum ofall vegetation and downed cedarpiles within the unit," i.e., within the 650 acres, not a bum ofall 650 acres. Since appellant safely conductedthe bumby consuming all ofthe downed cedar piles and approximately 60-70% consumption ofthe standing cedar, which within the

8prescribedbum community is considered a complete bum, appellant asserts it is entitled to the remaining balance ofthe contractprice 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 ofthe 650 acres (over a 100 acres), the government argues we should reject appellant's interpretation of the contract. (Gov'tbr. at 4-6) Appellant readily admits it did not burn 30-40% ofthe standing Eastern Red Cedar on site. Despite this, appellant proposes two arguments why it completedthejob and is entitled to payment ofthe 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 ofthe conversation between Mr. Wilson and appellant's employees never occurred; thatMr. Wilson never accepted the workundertheproject as complete or approved appellant's demobilization (gov'tbr. at 6). Our findings establish Mr. Wilson was the POC and the contract delegated authority to the POC to determine ifappellant had completedthejob and to accept performance underthe contract (finding 5). Thus, we conclude Mr. Wilson possessed authority under the contract to accept the work. 

### HenryAngelo & 

### Co., ASBCA

9No. 30502, 87-1BCAii19,619. The government did not question his authority to accept the work only whether acceptance factually occurred. Whetherthere was government acceptance is a question offact and the burden of proofis on appellant to prove acceptance. 

### Hogan Construction, Inc., ASBCA No. 39014, 95-1BCAii27,398 at 136,595 (citing

### HenryAngelo & 

### Co., 87-1BCAii19,619). Appellantproffers 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 ofproofon this issue.
In rebuttal, the government relies solely upon two finding offact 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 offact have no presumptive evidentiary weight and are not binding on the parties orthe Board. The parties have the burden ofproving their case 

### de nova. Wilner v. UnitedStates, 24 F.3d 1397, 1401 (Fed. Cir. 1994) (en bane) (findings offact in a COFD are notbinding upon theparties and are not entitled to any deference); 

### Precision Specialties, Inc., ASBCANo. 48717, 96-1BCAii28,054 at 140,087 (a final decision retains nopresumptive evidentiary weight nor is it binding on the Board); 41 U.S.C. 

### § 7103(e). Thus, the burden ofproduction has shifted to the government to rebut appellant's proofon this issue.
Mr. Wilson's testimony would be credible evidence ofwhether 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 offact 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 ofthe 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, ASBCANo. 51105, 00-2 BCA ii 31,099 at 153,595 (citing 

### Grunley-Walsh Construction Co., ASBCANo. 33004, 90-1 BCAii 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 ofgovernment acceptance. We conclude Mr. Wilson possessed the authority to accept the work and did approve appellant's completion ofthejob and thus, accepted appellant's performance.5

5 Given we conclude the government is bound by Mr. Wilson's acceptance ofappellant's Performance, we need not address the parties' arguments regarding interpretation ofthe contractrequirements.
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 ofContract Appeals JO Administrative Judge Armed Services Board ofContract Appeals

I concur

RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCANo. 59211, Appeal ofChloetaFire, LLC, rendered in conformance with the Board's Charter. Dated:

11 JEFFREYD. GARDIN Recorder, Armed Services Board ofContract Appeals