B-165984, FEB. 7, 1969

B-165984, FEB. 7, 1969

TO MR. DEINEMA:

REFERENCE IS MADE TO LETTER 6540 OF JANUARY 16, 1969, REQUESTING A DECISION WHETHER THE $7,442.13 ESCALATION ADJUSTMENT IN STUMPAGE COSTS UNDER TIMBER SALE CONTRACT 10-426 WHICH RESULTED FROM AN EXTENSION OF THE CONTRACT PERIOD MAY BE REFUNDED TO THE CONTRACTOR, CLAUDE J. MILLER.

THE CONTRACT AWARDED TO MR. MILLER ON JUNE 21, 1967, SPECIFIED DECEMBER 15, 1967, AS THE TERMINATION DATE. ON DECEMBER 15, 1967, BY MUTUAL AGREEMENT, THE TERMINATION DATE WAS EXTENDED TO MAY 17, 1968, TO ALLOW THE CONTRACTOR ADDITIONAL OPERATING DAYS DURING THE NORMAL OPERATING SEASON TO CUT AND REMOVE ADDITIONAL TIMBER DESIGNATED FOR CUTTING BY THE FOREST SERVICE. THE CONTRACT SPECIFIES THAT THE NORMAL OPERATING SEASON IS FROM MARCH 15 TO NOVEMBER 15.

SECTION B3.21 OF THE CONTRACT PROVIDES THAT CERTAIN TIMBER PAYMENT RATES PROVIDED IN THE CONTRACT ARE SUBJECT TO QUARTERLY ADJUSTMENT IN ACCORDANCE WITH A PRESCRIBED PROCEDURE. FOR THE TIMBER CUT DURING THE EXTENDED PERIOD IN MARCH AND APRIL 1968, THE ESCALATION AMOUNTED TO $7,442.13.

ACCORDING TO THE OCTOBER 2, 1968, REPORT OF THE ASSISTANT CHIEF OF THE DIVISION OF TIMBER MANAGEMENT IN THE CALIFORNIA REGION, THE CONTRACTOR RECOGNIZES THAT ESCALATION IS A CONTRACT REQUIREMENT, BUT BELIEVES THAT HE SHOULD NOT HAVE BEEN CHARGED ESCALATION FOR THE TIMBER CUT DURING THE EXTENDED CONTRACT PERIOD BECAUSE HE CONTENDS HE COULD HAVE COMPLETED THE CONTRACT BY THE ORIGINAL TERMINATION DATE IF IT HAD NOT BEEN FOR CONDITIONS BEYOND HIS CONTROL. THE CONDITIONS HE REFERS TO AS BEING BEYOND HIS CONTROL ARE THAT, DUE TO AN ERROR ON THE SALE AREA MAP, HE DID NOT BECOME AWARE OF THE EXISTENCE OF BLOCK "K" UNTIL IT WAS TOO LATE TO COMPLETE CUTTING IN THAT SECTION BEFORE THE ORIGINAL TERMINATION DATE; THAT THE VOLUME OF TIMBER FOR CUTTING UNDER THE CONTRACT WAS INCREASED BY 30 PERCENT; AND THAT THE ACCESS ROAD WAS CLOSED FOR 14 DAYS IN SEPTEMBER 1967 AND AGAIN IN DECEMBER 1967.

IF THE CONTRACTOR IS CORRECT THAT THE CONDITIONS CAUSING THE DELAY IN COMPLETING THE CUTTING WERE BEYOND HIS CONTROL, THEN SECTION B8.22 OF THE CONTRACT MIGHT BE FOR APPLICATION. THAT SECTION PROVIDES THAT IF THE CONTRACTOR EXPERIENCES AN ABNORMAL DELAY OR INTERRUPTION OF 10 OR MORE CONSECUTIVE OPERATING DAYS DURING A NORMAL OPERATING SEASON DUE TO CAUSES BEYOND HIS CONTROL AND FURNISHES NOTICE AS PRESCRIBED, HE IS ENTITLED TO AN EQUIVALENT NUMBER OF OPERATING DAYS IN THE APPLICABLE OPERATING SEASON BUT THAT THE CONTRACT RATES SHALL BE THOSE SPECIFIED IN SECTION B3.14. THAT SECTION PROVIDES, WHEN THE TERMINATION DATE IS ADJUSTED UNDER SECTION B8.22, CURRENT CONTRACT RATES SHALL BE DETERMINED IN THE SAME MANNER AS PRIOR TO THE ADJUSTMENT PERIOD. AS NOTED ABOVE, SECTION B3.21 PROVIDES FOR THE QUARTERLY ADJUSTMENT OF TIMBER RATES. THUS, THE CONTRACT REQUIRES A QUARTERLY ADJUSTMENT FOR TIMBER CUT DURING AN EXTENDED CONTRACT PERIOD EVEN IF THE LATE CUTTING MAY BE ATTRIBUTABLE TO CAUSES BEYOND THE CONTRACTOR'S CONTROL.

THE REFUND SOUGHT BY THE CONTRACTOR IS BEYOND THE TERMS OF THE CONTRACT. IN ESSENCE, AS THE ASSISTANT CHIEF OF THE DIVISION OF TIMBER MANAGEMENT RECOGNIZES, THE CONTRACTOR SEEKS TO HAVE THE CONTRACT REFORMED TO PROVIDE A DIFFERENT BASIS FOR PAYMENT THAN WAS INCLUDED IN THE CONTRACT. HOWEVER, A CONTRACT MAY NOT BE REFORMED BECAUSE ONE PARTY BECOMES DISSATISFIED WITH SOME PART OF THE CONTRACT DURING PERFORMANCE. 20 COMP. GEN. 782; 26 ID. 654; 26 ID. 744; AND 26 ID. 899. TO JUSTIFY REFORMATION, THERE MUST HAVE BEEN A MISTAKE MADE IN REDUCING TO WRITING THE CONTRACT UPON WHICH THE PARTIES HAD AGREED. IBID.

ACCORDINGLY, THE CONTRACTOR MAY NOT BE REFUNDED THE $7,442.13 ESCALATION ADJUSTMENT HERETOFORE COLLECTED AS PROVIDED FOR IN THE CONTRACT.