B-167120, AUG. 1, 1969

B-167120, AUG. 1, 1969

CONTRACTS - TIMBER SALES - MODIFICATION DECISION TO SECRETARY OF AGRICULTURE HOLDING THAT THERE WAS A BASIS FOR FINDING THAT TIMBER CUTTING WORK WAS DELAYED BY WEATHER CONDITIONS AND THAT PURCHASER'S COMMUNICATION COULD BE CONSIDERED AS AN APPLICATION FOR EXTENSION OF THE EXPIRATION DATE OF THE CONTRACT. ACCORDINGLY, STUMPAGE RATES SHOULD BE ADJUSTED TO THOSE IN EFFECT PRIOR TO EXTENSION.

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER (2430) DATED MAY 26, 1969, WITH ENCLOSURES, FROM THE REGIONAL FORESTER, U.S. FOREST SERVICE, ROCKY MOUNTAIN REGION, COLORADO, REQUESTING OUR VIEWS AS TO THE PROPER INTERPRETATION OF CONTRACT NO. 12-11-332-428, DATED JUNE 27, 1961, AS MODIFIED BY SUPPLEMENTAL AGREEMENTS DATED MAY 14 AND 22, 1968, COVERING THE SALE OF NATIONAL FOREST TIMBER TO M. M. BRANDT, FOXPARK, WYOMING.

IT IS REPORTED THAT JUST PRIOR TO NOVEMBER 30, 1968, THE EXPIRATION DATE OF THE CONTRACT, THE TERM WAS EXTENDED PURSUANT TO 36 CFR 221.7 TO DECEMBER 31, 1970, AND THE STUMPAGE RATES TO BE PAID BY THE PURCHASER WERE INCREASED. THE QUESTION SUBMITTED FOR OUR RESOLUTION IS WHETHER THE LOGS CUT AND DECKED IN THE WOODS PRIOR TO NOVEMBER 30, 1968, BUT HAULED AND SCALED AT THE MILL DURING THE MONTH OF DECEMBER 1968, WILL BE CHARGED FOR AT THE OLD CONTRACT RATES OR THE NEW REDETERMINED RATES EFFECTIVE NOVEMBER 30, 1968. SECTION 2B OF THE CONTRACT PROVIDES FOR APPLICATION OF THE RATES IN EFFECT WHEN THE TIMBER IS SCALED.

SECTION 6A, ENTITLED METHOD OF SCALING, OF THE SUBJECT CONTRACT AS SIGNED ON JUNE 27, 1961, PROVIDED FOR SAMPLE LOG SCALING OF ONE LOG IN TEN, AND REQUIRED THAT PLACES, METHODS OF PRESENTING AND ARRANGEMENTS FOR SCALING SHOULD BE SUCH THAT SCALING MAY BE DONE ECONOMICALLY AND SAFELY. THE FOREST SERVICE WAS REQUIRED TO PROVIDE SCALING SERVICE DURING ANY 8 HOUR DAY, MONDAY THROUGH FRIDAY, WHEN AT LEAST 30 MBF WAS PRESENTED FOR SCALING. UNDER THIS PROVISION THE METHOD EMPLOYED UNTIL THE YEAR 1968 (EXCEPT AS MODIFIED IN 1964 FOR 8 AND 10 FOOT LOGS) WAS SAMPLE LOG SCALING OF THE DECKED LOGS IN THE WOODS, AND LOGS WERE CONSIDERED TO BE PRESENTED FOR SCALING WHEN THEY WERE DECKED ALONG PRIMARY ROADS IN THE SALE AREA. ON MAY 14, 1968, AN AGREEMENT TO MODIFY SECTION 6A WAS EXECUTED, WHICH PROVIDED THAT LOGS WOULD BE SCALED BY THE SCRIBNER DECIMAL C LOG RULE AND IN ACCORDANCE WITH THE NATIONAL FOREST SCALING HANDBOOK, 1940 EDITION. PAGE 10 OF THE HANDBOOK STATES THAT "THE PLACES WHERE TIMBER IS TO BE SCALED WILL BE DESIGNATED BY THE OFFICER IN CHARGE * * * (FOREST SERVICE).' THE REVISED SECTION 6A ALSO PROVIDED FOR SAMPLE WEIGHT OR SAMPLE LOAD SCALING. SUBSEQUENTLY, ON MAY 22, AN AGREEMENT FOR SAMPLE WEIGHT SCALING WAS SIGNED BY PURCHASER BRANDT AND THE FOREST SUPERVISOR, BUT IT DOES NOT APPEAR THAT THIS METHOD WAS IN FACT PUT INTO PRACTICE UNTIL AUGUST 1968. UNDER THIS SAMPLE WEIGHT SCALING AGREEMENT, BRANDT WAS REQUIRED TO HAUL THE LOGS TO THE FOXPARK MILL FOR SCALING INSTEAD OF DECKING THE LOGS ALONG THE PRIMARY ROADS.

IN THE DISTRICT RANGER'S MEMORANDUM DATED MARCH 7, 1969, IT IS REPORTED THAT R. H. STRAND, FORESTER, DISCUSSED WOODS OPERATION WITH THE PURCHASER DURING SEPTEMBER 1968, AND ADVISED MR. BRANDT THAT BASED ON RECENT TIMBER PRICE TRENDS, STUMPAGE RATES FOR THE SMITH NORTH SALE WOULD LIKELY BE INCREASED BY SEVERAL DOLLARS EFFECTIVE DECEMBER 1, 1968, AND THAT EVERY EFFORT SHOULD BE MADE TO HAUL ALL LOGS TO THE MILL YARD FOR SCALING PRIOR TO THE EFFECTIVE DATE OF THE NEW RATES. DURING THE EARLY PART OF OCTOBER, THE PURCHASER INQUIRED WHETHER THE FOREST SERVICE WOULD SCALE ALL THE LOGS DECKED IN THE WOODS SO THAT ALL LOGS WOULD BE SCALED BEFORE THE NEW STUMPAGE RATES BECAME EFFECTIVE. THE ANSWER OF THE FORESTER IS REPORTED TO HAVE BEEN: "THE OPERATOR SHOULD MAKE EVERY EFFORT TO DELIVER ALL MATERIAL TO THE MILL YARD.' MR. BRANDT, HOWEVER, STATES THAT HE WAS ASSURED BY THE RANGER ON AT LEAST TWO OCCASIONS IN LATE OCTOBER AND EARLY NOVEMBER THAT ALL DECKED LOGS IN THE WOODS WOULD BE SCALED BY NOVEMBER 30. THE RECORD INDICATES THAT IT WAS THE OPINION OF THE DISTRICT OFFICIALS THAT THE PURCHASER WAS ENTITLED TO HAVE THE LOGS SCALED ON THE GROUND, AND MR. BRANDT WAS NEVER ADVISED TO THE CONTRARY.

ON NOVEMBER 9 AND 10, 1968, THE TIMBER SALE AREA RECEIVED AN UNSEASONABLY EARLY AND HEAVY SNOW OF UP TO 28 INCHES. DURING THE FOLLOWING SEVERAL DAYS THERE WAS CONSIDERABLE WIND AND DRIFTING OF SNOW WHICH MADE THE ROADS LEADING TO THE CUT LOGS ALMOST IMPASSABLE FOR HAULING PURPOSES. NOVEMBER 27, 1968, THE FOXPARK DISTRICT RANGER RECEIVED A LETTER FROM MR. BRANDT, CONFIRMING HIS SEVERAL PREVIOUS REQUESTS THAT THE FOREST SERVICE SCALE THE DECKED LOGS IN THE WOODS. NO REPLY WAS RECEIVED, BUT ON NOVEMBER 29, 1968, THE FOXPARK DISTRICT PERSONNEL, APPARENTLY UPON INSTRUCTIONS FROM THE REGIONAL FORESTER, SCALED IN THE WOODS 193,400 B.F. OF LOGS WHICH APPARENTLY HAD BEEN CUT AND DECKED SINCE THE SNOW. HOWEVER, SOME 300 MBF OF LOGS WHICH HAD BEEN CUT AND DECKED 4 TO 6 WEEKS EARLIER WERE COVERED WITH 12 TO 24 INCHES OF SNOW AND REMAINED IN THE WOODS AFTER NOVEMBER 30, 1968. WHEN THE ROADS WERE CLEARED, THE PURCHASER HAULED 226,100 B.F. OF LOGS TO THE MILL BY DECEMBER 11, 1968.

IN THE MEANTIME, THE PURCHASER HAD PROPOSED THAT THE VOLUME SCALED FROM THE LOGS CUT AND DECKED IN NOVEMBER BE INCLUDED IN THE REPORT OF NOVEMBER SCALINGS. THE DISTRICT RANGER CONSIDERED THIS IMPOSSIBLE, BUT AGREED TO REQUEST AN INTERPRETATION IF THE REMAINING LOGS SCALED IN THE EARLY PART OF DECEMBER COULD BE TALLIED AND RECORDED SEPARATELY AND CHARGED FOR AT THE OLD STUMPAGE RATE. THIS QUESTION WAS NOT RESOLVED BY THE REGIONAL OFFICE UNTIL THE LATTER PART OF DECEMBER, AND MR. BRANDT WAS NOT NOTIFIED UNTIL JANUARY 3, 1969, THAT IT WAS THE GOVERNMENT'S POSITION THAT UNDER THE CONTRACT ALL LOGS SCALED AFTER NOVEMBER 30 WOULD HAVE TO BE CHARGED FOR AT THE NEW RATE.

WE BELIEVE THAT CONCLUSION IS CORRECT, UNLESS THE PURCHASER IS FOUND TO BE ENTITLED TO ADJUSTMENT OR EXTENSION OF THE EXPIRATION DATE OF NOVEMBER 30, 1968. THE PERTINENT PROVISIONS OF THE CONTRACT ARE AS FOLLOWS: "SECTION 5A. PERIOD OF CONTRACT.

1. THE PURCHASER AGREES TO CUT AND REMOVE FROM THE SALE AREA ALL TIMBER INCLUDED IN THIS CONTRACT PRIOR TO NOVEMBER 30, 1968 UNLESS THE TERMINATION DATE IS ADJUSTED PURSUANT TO SECTION 5A-2, OR THE CONTRACT PERIOD IS EXTENDED BY THE FOREST SERVICE. ALL OTHER OBLIGATIONS OF THE PURCHASER LIKEWISE SHALL BE DISCHARGED PRIOR TO THE ABOVE DATE, OR ANY ADJUSTMENT OR EXTENSION THEREOF: PROVIDED, THAT IF THE PURCHASER FAILS TO DISCHARGE ALL OF SUCH OBLIGATIONS BY THE DATE STATED ABOVE OR AS ADJUSTED OR EXTENDED, AND IS GIVEN WRITTEN PERMISSION TO DO SO AFTER SUCH DATE, HE SHALL NOT THEREBY BE RELIEVED DURING THE PERIOD OF SUCH PERMISSION OF ANY OBLIGATIONS UNDER THIS CONTRACT TO PREVENT DAMAGE TO IMPROVEMENTS, SOIL AND COVER, TO PREVENT AND SUPPRESS FOREST FIRES, TO MAINTAIN FIRE PRECAUTIONARY MEASURES AND SUCH OTHER OF HIS OBLIGATIONS HEREUNDER WHICH ARE NECESSARY TO PROTECT NATIONAL FOREST INTERESTS.

2. IF THE PURCHASER, WITHIN FIFTEEN (15) DAYS FROM THE TERMINATION OF AN ABNORMAL INTERRUPTION OF TEN (10) OR MORE OPERATING DAYS IN THE PERFORMANCE OF THIS CONTRACT AFTER OPERATIONS HAVE STARTED AND BEFORE OPERATIONS HAVE CLOSED DURING A NORMAL OPERATING SEASON, BEGINNING ON MAY 15 AND ENDING ON DECEMBER 15 OF ANY YEAR, WHICH WAS DUE TO CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE PURCHASER, INCLUDING, BUT NOT LIMITED TO, ACTS OF GOD, OR OF THE PUBLIC ENEMY, ACTS OF THE GOVERNMENT, STRIKES, FIRES, AND FLOODS, GIVES WRITTEN NOTICE OF AN ACCEPTABLE REASON FOR THE INTERRUPTION AND THE NUMBER OF OPERATING DAYS LOST, THE FOREST SERVICE SHALL ADJUST THE TERMINATION DATE OF THIS CONTRACT TO INCLUDE AN EQUIVALENT ADDITIONAL NUMBER OF OPERATING DAYS: PROVIDED, THAT THE RATES FOR STUMPAGE AND FOR REQUIRED DEPOSITS IN EFFECT WHEN THE ADJUSTMENT IS MADE SHALL CONTINUE DURING THE ADJUSTED PERIOD UNLESS SUCH RATES ARE INCREASED OR DECREASED THROUGH REDETERMINATION, IF PROVIDED FOR HEREIN.'

THE RECORD SUBMITTED CONTAINS A LEGAL OPINION THAT THE PURCHASER MAY NOT BE GRANTED RELIEF UNDER THESE PROVISIONS BECAUSE HE FAILED TO GIVE THE REQUIRED NOTICE. HOWEVER, THE OBVIOUS PURPOSE OF THE 15 DAY NOTICE REQUIREMENT IN PARAGRAPH 2 OF THE ABOVE SECTION IS TO ENABLE THE GOVERNMENT TO INVESTIGATE ALLEGED CAUSES OF DELAY WHILE THE EVIDENCE IS FRESH, AND WHERE THE GOVERNMENT ACTUALLY KNOWS OF THE EXCUSABLE CAUSE AND IS NOT PREJUDICED BY THE LACK OF FORMAL NOTICE, THE NOTICE REQUIREMENT IS NOT REQUIRED TO BE ENFORCED. SEE VINEGAR HILL ZINC COMPANY V U.S., 149 CT. CL. 494, HIRSCH V U.S., 94 CT. CL. 602. THE DISTRICT RANGER'S REPORT OF DECEMBER 3, 1968, STATES: "ON NOVEMBER 9 AND 10, THE AREA RECEIVED AN UNSEASONABLY EARLY AND HEAVY SNOW, UP TO 24 INCHES. OF COURSE, THIS ELIMINATED THE POSSIBILITY OF DOING ANY SCALING IN THE WOODS, MATERIAL WHICH HAD BEEN CUT AND DECKED PRIOR TO THIS TIME. IT WAS HOPED THE MATERIAL COULD BE HAULED PRIOR TO NOVEMBER 30, BUT DUE TO THE SNOW REMOVAL PROBLEM, SOME 18-20 MILES OF ROAD AND CONTINUING SNOWFALL WITH WIND, THE OPERATOR WAS NOT ABLE TO HAUL FROM THIS AREA FOR 7-10 DAYS. AS A RESULT AN ESTIMATED 200 TO 300 MBM IS STILL DECKED IN THE WOODS AS OF 12/1/68.'

THIS CLEARLY CONSTITUTES AN ADEQUATE BASIS FOR FINDING THAT THE WORK WAS DELAYED BY ,UNSEASONABLY EARLY AND HEAVY SNOW," SINCE THE WEATHER CONDITIONS AND THEIR EFFECT ON THE OPERATIONS WERE WITHIN THE ACTUAL KNOWLEDGE OF THE DISTRICT RANGER, WHO APPEARS TO HAVE BEEN THE GOVERNMENT'S REPRESENTATIVE RESPONSIBLE FOR ADMINISTRATION OF THE CONTRACT ON THE SITE.

THE GENERAL TERMS OF THE CONTRACT INCLUDE A STIPULATION THAT UPON DISAGREEMENT BETWEEN THE PURCHASER AND THE FOREST SERVICE AS TO THE INTERPRETATION OR PERFORMANCE OF THE CONTRACT THE DECISION OF THE FOREST SERVICE SHALL PREVAIL, SUBJECT TO THE LIMITATIONS OF THE ACT OF MAY 11, 1954, 68 STAT. 81 (41 U.S.C. 321-322). THE FOREST SUPERVISOR, OR SUCH FOREST OFFICER AS HE MAY DESIGNATE, IS AUTHORIZED TO EXERCISE AND DISCHARGE ALL RIGHTS AND DUTIES OF THE FOREST SERVICE UNDER THE CONTRACT. DEPARTMENTAL REGULATIONS PUBLISHED AS 36 CFR PART 211, SUBPART B, PROVIDE FOR APPEALS OF ADMINISTRATIVE DECISIONS CONCERNING FOREST SERVICE CONTRACTS.

ON THE RECORD SUBMITTED IT IS OUR CONCLUSION THAT THE PURCHASER'S LETTER TO THE REGIONAL FORESTER (THE SUPERIOR OF THE FOREST SUPERVISOR) DATED FEBRUARY 20, 1969, MAY PROPERLY BE CONSIDERED AS AN APPLICATION FOR EXTENSION OF THE EXPIRATION DATE OF THE ORIGINAL CONTRACT, AND THAT IF IT BE FOUND THAT THE PURCHASER IS ENTITLED UNDER THE PROVISIONS OF SECTION 5A -2 OF THE CONTRACT TO SUCH EXTENSION, THE TIME THEREOF SHOULD BE DETERMINED AND STUMPAGE CHARGES ON TIMBER SCALED PRIOR TO THE EXTENDED EXPIRATION DATE ADJUSTED TO THE RATES IN EFFECT PRIOR THERETO.

THE FILES RECEIVED WITH THE REGIONAL FORESTER'S LETTER OF MAY 26, 1969, ARE RETURNED.