B-164949, AUG. 27, 1968

B-164949: Aug 27, 1968

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JENSEN: REFERENCE IS MADE TO YOUR LETTER 6570 OF JULY 17. SPECIFIC FIRE PRECAUTIONARY MEASURES ARE LISTED IN C7.21 AND SHALL BE EFFECTIVE EACH YEAR DURING THE TERM OF THIS CONTRACT FOR THE PERIOD DESCRIBED IN A16. * * * "B7.23 EMERGENCY MEASURES. STATES THAT THE FIRE PRECAUTIONARY PERIOD IS FROM APRIL 1 TO OCTOBER 31. SECTION C7.21 OF THE CONTRACT PROVIDES THAT THE SPECIFIC FIRE PRECAUTIONARY MEASURES TO BE FOLLOWED ARE PRESCRIBED IN THE FOLLOWING SUBSECTIONS. FOREST SERVICE WILL REQUIRE PATROLMAN SERVICE WHEN FIRE DANGER WARRANTS AND THE FOREST FUEL IN OR IMMEDIATELY ADJACENT TO THE OPERATION AREA HAS A HIGH RATE OF SPREAD AND/OR A HIGH RESISTANCE TO CONTROL. RADIO COMMUNICATIONS WHEN RADIOS ARE REQUIRED ON PURCHASER'S OPERATION.

B-164949, AUG. 27, 1968

TO MR. JENSEN:

REFERENCE IS MADE TO YOUR LETTER 6570 OF JULY 17, 1968, REQUESTING A DECISION ON THE CLAIM OF GLANVILLE BOX CO. FOR $1,686.08, REPRESENTING THE COST OF PATROL SERVICE PROVIDED IN CONNECTION WITH TIMBER SALE CONTRACT 20 -00110-3. PART B7.0 OF THE CONTRACT PROVIDES: "B7.2 FIRE PRECAUTIONS

"B7.21 NORMAL PRECAUTIONS. SPECIFIC FIRE PRECAUTIONARY MEASURES ARE LISTED IN C7.21 AND SHALL BE EFFECTIVE EACH YEAR DURING THE TERM OF THIS CONTRACT FOR THE PERIOD DESCRIBED IN A16. * * *

"B7.23 EMERGENCY MEASURES. FOREST SERVICE MAY REQUIRE EMERGENCY MEASURES, INCLUDING THE NECESSARY CLOSING DOWN OF EQUIPMENT OR PORTIONS OF PURCHASER'S OPERATIONS ON SALE AREA OR VICINITY, DURING PERIODS OF FIRE EMERGENCY CREATED BY HAZARDOUS CLIMATIC CONDITIONS. FOREST SERVICE SHALL COMPENSATE PURCHASER FOR REQUESTED STANDBY SERVICES OF PURCHASER'SEQUIPMENT AND PERSONNEL AT FIRE FIGHTING RATES COMMON IN THE AREA.'

PART A16 OF THE CONTRACT, REFERRED TO ABOVE, STATES THAT THE FIRE PRECAUTIONARY PERIOD IS FROM APRIL 1 TO OCTOBER 31.

SECTION C7.21 OF THE CONTRACT PROVIDES THAT THE SPECIFIC FIRE PRECAUTIONARY MEASURES TO BE FOLLOWED ARE PRESCRIBED IN THE FOLLOWING SUBSECTIONS. THESE SUBSECTIONS PROVIDE FOR THE PURCHASER TO FURNISH FIREMEN, WATCHMEN, AND CERTAIN FIRE EQUIPMENT AND TOOLS, AND TO IMPOSE CERTAIN RESTRICTIONS TO REDUCE THE RISK OF FIRE. SUBSECTION C7.21Q PROVIDES AS TO THE FURNISHING OF FIRE PATROLMEN:

"DURING PERIODS OF FIRE DANGER LISTED BELOW, PURCHASER SHALL FURNISH A COMPETENT, ADEQUATELY EQUIPPED FIRE PATROLMAN TO PREVENT, DETECT, AND SUPPRESS FIRES. FOREST SERVICE SHALL NOTIFY PURCHASER WHEN THE FOLLOWING FIRE DANGER CONDITIONS EXIST. FIRE PATROLMAN SHALL CARRY OUT DUTIES AS REQUIRED BY THESE CONDITIONS. "IN OPERATION AREAS ON ROAD RIGHTS-OF-WAY, FELLING OPERATIONS, ROAD CONSTRUCTION, ROCK PIT OPERATIONS, ETC., FOREST SERVICE WILL REQUIRE PATROLMAN SERVICE WHEN FIRE DANGER WARRANTS AND THE FOREST FUEL IN OR IMMEDIATELY ADJACENT TO THE OPERATION AREA HAS A HIGH RATE OF SPREAD AND/OR A HIGH RESISTANCE TO CONTROL. THE FIRE DANGER CONDITIONS AND THE PATROLMAN REQUIREMENTS SHALL BE SPECIFIED IN WRITING. PATROLMEN SHALL BE EQUIPPED WITH SUITABLE TRANSPORTATION, FIRE TOOLS, AND RADIO COMMUNICATIONS WHEN RADIOS ARE REQUIRED ON PURCHASER'S OPERATION.

"A. HIGH FIRE DANGER WITH RISK OF LIGHTNING (R-2) OR VERY HIGH FIRE DANGER. FOREST SERVICE MAY REQUEST PURCHASER TO PROVIDE ONE OR MORE PATROLMEN FOR SLASH AREAS NOT ACCEPTED UNDER B6.33, AND FOR PATROL OF THE AREA WHERE LOGGING OPERATIONS ARE IN PROGRESS.

"B. EXTREME FIRE DANGER. SPECIAL MEASURES AS MAY BE REQUIRED IN ACCORDANCE WITH B7.23.'

BY LETTER OF AUGUST 16, 1967, THE GLANVILLE BOX CO. WAS NOTIFIED UNDER SUBSECTION C7.21Q THAT, BECAUSE THERE HAD BEEN NO MEASURABLE AMOUNT OF PRECIPITATION FOR MORE THAN 50 DAYS, PATROLMAN SERVICES WOULD BE REQUIRED TO PATROL THE TIMBER SALE SLASH AREAS 7 DAYS A WEEK FROM 1 P.M. TO 8 P.M., BEGINNING AUGUST 19, 1967. THE LETTER STATED THAT THE PRIMARY OBJECTIVE WAS TO PREVENT, DETECT AND SUPPRESS FIRES DURING THE "EXTREME FIRE DANGER.'

BY LETTER OF SEPTEMBER 22, 1967, GLANVILLE BOX CO. PRESENTED AN ITEMIZED BILL FOR $1,686.08 FOR PATROL SERVICES PROVIDED ON AUGUST 26 AND 27 AND SEPTEMBER 1 THROUGH 5, 9, 10, 16 AND 17. PAYMENT WAS DENIED BY LETTER OF SEPTEMBER 28, 1967, ON THE BASIS THAT THERE WAS NO CONTRACTUAL REQUIREMENT TO MAKE REIMBURSEMENT FOR THE SERVICES. ESSENTIALLY, IT IS THE POSITION OF GLANVILLE BOX CO. THAT IT IS ENTITLED TO REIMBURSEMENT UNDER SUBSECTION B7.23 BECAUSE ITS OPERATIONS WERE SHUT DOWN DURING A PERIOD OF FIRE EMERGENCY.

THE PERIODS OF NONOPERATION FROM AUGUST 19, 1967, THROUGH SEPTEMBER 17, 1967, WERE WEEKENDS, A CLOSURE ON THE CHEMULT DISTRICT ON AUGUST 30, AND A REGIONWIDE CLOSURE FROM SEPTEMBER 1 THROUGH 5. ALSO, ALTHOUGH THE LETTER OF AUGUST 16, 1967, STATED THAT THE OBJECTIVE OF THE PATROL WAS TO PREVENT, DETECT AND SUPPRESS FIRES DURING THE "EXTREME FIRE DANGER," THE PERIOD OF AUGUST 19, 1967, THROUGH SEPTEMBER 17, 1967, WAS ACTUALLY CLASSED AS A PERIOD OF VERY HIGH FIRE DANGER WITH AUGUST 26 AND SEPTEMBER 5 BEING CLASSED AS LIGHTNING-RISK DAYS AS WELL. FURTHER, THE FOREST SUPERVISOR POINTED OUT THAT SUBSECTION B7.23 PROVIDED REIMBURSEMENT FOR STANDBY SERVICES ONLY.

SUBSECTION B7.21, QUOTED ABOVE, PROVIDES THAT THE FIRE PRECAUTIONARY MEASURES LISTED UNDER SUBSECTION C7.21 ARE EFFECTIVE EACH YEAR FROM APRIL 1 THROUGH OCTOBER 31. SUBSECTION C7.21Q PROVIDES THAT THE PURCHASER SHALL FURNISH FIRE PATROLMEN TO COVER SLASH AREAS DURING PERIODS OF HIGH FIRE DANGER WITH RISK OF LIGHTNING OR VERY HIGH FIRE DANGER. GLANVILLE BOX CO. WAS REQUIRED BY THE FOREST SERVICE, PURSUANT TO SUBSECTION C7.21Q, TO PERFORM THE PATROL SERVICE DURING A PERIOD OF VERY HIGH FIRE DANGER THAT FELL WITHIN THE FIRE PRECAUTIONARY PERIOD. THERE IS NOTHING IN SUCH SUBSECTION, AS DISTINGUISHED FROM SUBSECTION B7.23, WHICH AUTHORIZES THE PAYMENT OF COMPENSATION FOR THE PERFORMANCE OF PATROL SERVICES THEREUNDER. WE NOTE IN THIS REGARD THAT SUBSECTION B7.23 PROVIDES FOR COMPENSATION ONLY FOR STANDBY SERVICES OF THE PURCHASER'S EQUIPMENT AND PERSONNEL AT FIRE-FIGHTING RATES. THE MEN AND EQUIPMENT FOR WHICH REIMBURSEMENT IS CLAIMED HERE WERE ACTIVELY EMPLOYED IN PATROL WORK AND WERE NOT HELD IN A RESERVE OR STANDBY STATUS AS CONTEMPLATED BY SUBSECTION B7.23.

ACCORDINGLY, WE AGREE THAT THE PURCHASER WAS REQUIRED TO PROVIDE THE CLAIMED PATROL SERVICES AS A PART OF HIS CONTRACT OBLIGATIONS. THE VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT.