B-169273, APR. 14, 1970

B-169273: Apr 14, 1970

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COST OF NEITHER IS COMPENSABLE TO PURCHASER. ANDERSON: REFERENCE IS MADE TO YOUR LETTER (REFERENCE 6540) DATED MARCH 3. WHICH IS AN EARLIER VERSION OF CONTRACT FORM 2400-5. WE HAVE REVIEWED THE INSTANT CONTRACT FORM. IT IS OUR OPINION THAT FORM 2400-2 IMPOSES A SIMILAR DUTY ON THE CONTRACTOR. ENTITLED "SLASH DISPOSAL" IS NOT DIRECTLY RELEVANT TO YOUR INQUIRY OF MARCH 3. SINCE IT DEALS WITH FIRES WHICH ARE INTENTIONALLY SET FOR THE BENEFICIAL PURPOSE OF DISPOSING OF THE DEBRIS GENERATED DURING CONTRACT PERFORMANCE. IT IS ALSO PROVIDED THEREIN THAT ON THE REQUEST OF THE FOREST SERVICE THE PURCHASER WILL FURNISH. THE PURCHASER'S OBLIGATION IS SPECIFICALLY LIMITED UNDER THIS PARAGRAPH TO A MAXIMUM NUMBER OF MEN.

B-169273, APR. 14, 1970

TIMBER SALES--PATROL SERVICES BY PURCHASER--COMPENSATION UNDER TIMBER SALE CONTRACT REQUIRING PURCHASER TO FURNISH PATROLMEN AND NECESSARY EQUIPMENT DURING FIRE DANGER SEASON, COST OF NEITHER IS COMPENSABLE TO PURCHASER, NOTWITHSTANDING FOREST SERVICE (FS) HIRED PURCHASER'S MEN ON FIRE TIME SLIPS, SINCE CONTRACT PERMITTED FS COMPENSATION FOR FIRE FIGHTING SERVICES ONLY, AND NOT FOR REQUIRED PRECAUTIONARY MEASURES. MOREOVER, PATROL SERVICES CANNOT BE CONSIDERED AS "UNNECESSARY TO PROTECT THE AREA ADEQUATELY" SO AS TO BE ELIGIBLE FOR WAIVER UNDER PAR. 9E.2. TO INTERPRET CONTRACT OTHERWISE WOULD PERMIT FS TO DO INDIRECTLY WHAT IT COULD NOT DO DIRECTLY, I.E; WAIVE VESTED GOVERNMENT CONTRACT RIGHTS WITHOUT ADEQUATE CONSIDERATION. SEE COMP. GEN. DECS. CITED.

TO MR. LOUIS B. ANDERSON:

REFERENCE IS MADE TO YOUR LETTER (REFERENCE 6540) DATED MARCH 3, 1970, REQUESTING OUR ADVICE AS TO THE PROPER HANDLING OF AN ACCOUNT BETWEEN THE FOREST SERVICE, DEPARTMENT OF AGRICULTURE, AND ROSBORO LUMBER COMPANY. THE MATTER ARISES UNDER TIMBER SALE CONTRACT FORM 2400 2, WHICH IS AN EARLIER VERSION OF CONTRACT FORM 2400-5. IN OUR DECISION B-164949, AUGUST 27, 1968, WE CONSIDERED FORM 2400-5 AND CONCLUDED THAT THE CONTRACT REQUIRED THE TIMBER PURCHASER TO FURNISH REQUESTED FIRE PATROL SERVICES AS PART OF HIS CONTRACTUAL OBLIGATION. WE HAVE REVIEWED THE INSTANT CONTRACT FORM, AND IT IS OUR OPINION THAT FORM 2400-2 IMPOSES A SIMILAR DUTY ON THE CONTRACTOR.

SECTIONS 8 AND 9 OF CONTRACT FORM 2400-2 INVOLVE THE SUBJECT OF FIRES. SECTION 8, ENTITLED "SLASH DISPOSAL" IS NOT DIRECTLY RELEVANT TO YOUR INQUIRY OF MARCH 3, SINCE IT DEALS WITH FIRES WHICH ARE INTENTIONALLY SET FOR THE BENEFICIAL PURPOSE OF DISPOSING OF THE DEBRIS GENERATED DURING CONTRACT PERFORMANCE. NEVERTHELESS, WE BELIEVE IT HAS A TANGENTIAL BEARING ON THE ISSUE. PARAGRAPH 8A.1.A IMPOSES UPON THE FOREST SERVICE THE RESPONSIBILITY FOR DISPOSING OF SLASH. HOWEVER, IT IS ALSO PROVIDED THEREIN THAT ON THE REQUEST OF THE FOREST SERVICE THE PURCHASER WILL FURNISH, AT HIS EXPENSE, MEN AND EQUIPMENT TO ASSIST IN THE DISPOSAL EFFORT. BUT THE PURCHASER'S OBLIGATION IS SPECIFICALLY LIMITED UNDER THIS PARAGRAPH TO A MAXIMUM NUMBER OF MEN, AND TO AMOUNTS AND KINDS OF EQUIPMENT "NORMALLY USED FOR THIS TYPE OF WORK" IN THE AREA. THIS PARAGRAPH FURTHER RECOGNIZES THAT THE SLASH FIRE MIGHT ESCAPE. IN SUCH AN EVENT, UTILIZATION OF THE MEN AND EQUIPMENT MADE AVAILABLE BY THE PURCHASER MIGHT BECOME NECESSARY. ACCORDINGLY, PARAGRAPH 8A.1.A PROVIDES:

"* * * SUCH USE SHALL BE AT THE PURCHASER'S EXPENSE ONLY FOR THE HOURS WORKED DURING REMAINDER OF DAY ON WHICH THE FIRE ESCAPES. FOR ANY ADDITIONAL MEN AND EQUIPMENT FURNISHED BY THE PURCHASER FOR CONTROLLING AND SUPPRESSING THE ESCAPED SLASH FIRE OUTSIDE THE BOUNDARIES OF THE CUTTING UNIT ON WHICH SLASH IS BEING BURNED, THE FOREST SERVICE SHALL REIMBURSE THE PURCHASER AT RATES ESTABLISHED BY THE FOREST SERVICE FOR SERVICES OF SIMILAR CHARACTER. IN LIEU THEREOF, THE PURCHASER SHALL MAKE AVAILABLE FOR DIRECT EMPLOYMENT AND USE BY THE FOREST SERVICE, AT RATES ESTABLISHED BY THE FOREST SERVICE FOR SIMILAR SERVICES, THE DESIGNATED MEN AND EQUIPMENT."

WE NOTE THAT SUBSECTION 8B REQUIRES THE PURCHASER WITHIN STATED LIMITS, TO CONSTRUCT FIRE LINES, FIRE LINE CLEARINGS AND FIRE BREAK, WHEN SUCH MEASURES ARE NECESSARY IN THE JUDGMENT OF THE FOREST SERVICE. INDEPENDENT PROVISION IS MADE FOR REIMBURSEMENT OF THE PURCHASER'S EXPENSES INCURRED IN SUCH WORK.

SECTION 9 OF CONTRACT FORM 2400-2 CONCERNS "FIRE SUPPRESSION AND FIRE PRECAUTIONS," AND RELATES TO HOSTILE FIRES. PARAGRAPH 9A.1 PROVIDES THAT, WHEN SO REQUESTED BY THE FOREST SERVICE, THE CONTRACTOR AND THE FOREST SERVICE SHALL JOINTLY PREPARE A DETAILED FIRE PLAN FOR THE PREVENTION, CONTROL, AND EXTINGUISHMENT OF FIRES ON THE LOCATION OF THE SALE AREA AND THE ADJACENT VICINITY. PARAGRAPH 9A.2 STATES:

"THE PREPARATION OF SAID PLAN OR ANYTHING CONTAINED THEREIN SHALL NOT RELIEVE THE PURCHASER FROM ANY OTHER RESPONSIBILITY UNDER THE TERMS OF THIS CONTRACT. PERFORMANCE IN THE PREVENTION, CONTROL, AND EXTINGUISHING OF FIRES SHALL FOLLOW THIS FIRE PLAN, EXCEPT AS SAID PLAN MAY BE CHANGED IN WRITING."

SUBSECTIONS 9B AND 9C ARE ADDRESSED TO THE MATTER OF SUPPRESSION OF FIRES. SPECIFICALLY, SUBSECTION 9B DEFINES THE ACTIONS REQUIRED OF THE PURCHASER IN SUPPRESSING FOREST FIRES. PARAGRAPH 9C.1 STATES WHEN AND TO WHAT EXTENT THE PURCHASER SHALL BE LIABLE FOR FIRE SUPPRESSION COSTS, AND PARAGRAPH 9C.3 THEREOF INDICATES THE CIRCUMSTANCES IN WHICH THE FOREST SERVICE IS OBLIGATED TO REIMBURSE THE PURCHASER FOR FIRE SUPPRESSION SERVICES PERFORMED BY THE PURCHASER PURSUANT TO THE CONTRACTUAL REQUIREMENTS IN SUBSECTION 9B "OR OTHERWISE AT THE REQUEST OF THE FOREST SERVICE."

SUBSECTION 9D GRANTS TO THE FOREST SERVICE DURING PERIODS OF FIRE EMERGENCY CAUSED BY HAZARDOUS CLIMATIC CONDITIONS OR OTHERWISE THE RIGHT TO REQUIRE OTHER EMERGENCY MEASURES AS IT DETERMINES TO BE NECESSARY. THESE REQUIREMENTS, AS FAR AS PRACTICABLE, ARE TO BE SET FORTH IN THE PLAN PROVIDED FOR IN SUBSECTION 9A. IN ADDITION, PARAGRAPH 9D.2 PROVIDES:

"WHEN CONDITIONS BECOME SO HAZARDOUS THAT SUCH ADDITIONAL PRECAUTIONS ARE NOT ADEQUATE, OR IF THERE IS NOT PROPER COMPLIANCE WITH THE EMERGENCY MEASURES REQUIRED, OR COMPLIANCE WITH ANY PART OF THE FIRE PLAN, THE FOREST SERVICE MAY CLOSE DOWN SUCH EQUIPMENT OR SUCH PORTIONS OF THE OPERATIONS AS, IN ITS JUDGMENT, SHOULD BE DISCONTINUED DURING THE PERIOD OF EMERGENCY OR UNTIL THE EMERGENCY OR FIRE PLAN REQUIREMENTS ARE MET BY THE PURCHASER." HOWEVER, SUBSECTION 9D DOES NOT INDICATE WHICH CONTRACTING PARTY IS TO BEAR THE COSTS OF THE EMERGENCY MEASURES.

SUBSECTION 9C IS ENTITLED "FIRE PRECAUTIONS." PARAGRAPH 9E.1 STATES IN PART:

"THE PURCHASER SHALL COMPLY WITH, AND SHALL REQUIRE HIS EMPLOYEES, SUBCONTRACTORS, AND THEIR EMPLOYEES, ENGAGED IN THE PERFORMANCE OF ANY PART OF THIS CONTRACT TO COMPLY WITH, THE FIRE PRECAUTIONARY MEASURES SET FORTH HEREIN. * * *" THE PARAGRAPH REQUIRES THAT SUCH MEASURES BE TAKEN DURING THE PERIOD OF APRIL 1 TO OCTOBER 31, EXCEPT THAT SUCH PERIOD MAY BE ALTERED BY THE FOREST SERVICE, IF THE CONDITIONS JUSTIFY SUCH ACTION. PARAGRAPH 9E.2 PROVIDES IN PART:

"THE SPECIFIC FIRE PRECAUTIONARY MEASURES ARE LISTED IN THE SECTIONS IMMEDIATELY FOLLOWING. THE FOREST SERVICE MAY AUTHORIZE SUBSTITUTE MEASURES OR EQUIPMENT, OR MAY WAIVE SPECIFIC REQUIREMENTS, BY NOTICE IN WRITING, IF SUBSTITUTE MEASURES OR EQUIPMENT WILL GIVE EQUAL PROTECTION OR CERTAIN REQUIRED MEASURES AND EQUIPMENT ARE UNNECESSARY TO PROTECT THE AREA ADEQUATELY. * * *"

SUBSECTIONS 9F THROUGH 9V SET FORTH THE SPECIFIC FIRE PRECAUTIONARY MEASURES REQUIRED OF THE PURCHASER. THE PROVISION PERTINENT TO YOUR INQUIRY IS 9U, ENTITLED "FIRE (FOREMAN AND) PATROL." IT STATES:

"1. (THE PURCHASER SHALL EMPLOY DURING THE DESIGNATED FIRE SEASON AS SPECIFIED IN SECTION 9E, A FIRE FOREMAN WHOSE * * * DUTY * * * SHALL BE THE PREVENTION AND SUPPRESSION OF FOREST FIRES ON THE OPERATION WITHIN THE NATIONAL FOREST.) DURING THE PERIOD OF FIRE DANGER, AS DETERMINED BY THE FOREST SERVICE, THE PURCHASER AGREES TO FURNISH *** ADDITIONAL MEN, AS REQUIRED BY THE FOREST SERVICE, FOR PATROL OF THE AREA UPON WHICH LOGGING OPERATIONS ARE IN PROGRESS, AND OF OTHER PARTS OF THE SALE AREA WHERE THE FIRE HAZARD IS INCREASED ON ACCOUNT OF UNBURNED BRUSH OR SLASH. THE (FIRE FOREMAN AND) PATROLMEN SHALL BE PROVIDED WITH ADEQUATE MEANS OF TRANSPORTATION AND SHALL BE SATISFACTORY TO THE FOREST SERVICE."

IN ADDITION, SUBSECTION 9R PROVIDES:

"1. THE PURCHASER SHALL MAINTAIN AT EACH TAIL BLOCK AND CORNER HAUL BACK BLOCK OF EACH OPERATING LOGGING ENGINE ONE BACK-PACK HAND FORCE TANK PUMP FILLED WITH WATER, ONE AXE AND ONE SHOVEL. UNLESS RELIEVED IN WRITING OF THIS REQUIREMENT BY THE FOREST SERVICE THE AREA AROUND ALL TAIL BLOCKS AND CORNER HAUL-BACK BLOCKS SHALL BE CLEARED TO MINERAL SOIL IN ALL DIRECTIONS FOR A RADIUS OF 10 FEET. SPECIAL PATROL ALONG THE LINES MAY BE REQUIRED BY THE FOREST SERVICE."

THERE IS NOTHING IN SUBSECTIONS 9E THROUGH 9V WHICH SPECIFICALLY OBLIGATES THE FOREST SERVICE TO COMPENSATE THE PURCHASER FOR THE COSTS OF THESE REQUIRED PRECAUTIONS DURING PERIODS WHEN THERE IS A THREAT OF FIRE. BY WAY OF CONTRAST, THE PURCHASER'S SERVICES RELATING TO THE ACTUAL SUPPRESSION OF FIRES, EITHER UNDER SECTION 8 OR SUBSECTIONS 9B AND 9C, ARE EXPLICITLY COMPENSABLE.

THE FIRE PLAN EXECUTED PURSUANT TO PARAGRAPH 9A.1 OF THE ROSBORO CONTRACT RELATES IN PART TO FIRE SUPPRESSION MEASURES. MOREOVER, ON PAGE 5 OF THE PLAN THERE IS THIS NOTE:

"FOLLOWING THIS FIRE PLAN ARE DEFINITIONS OF SPECIFIC FIRE PRECAUTIONARY MEASURES WHICH THE TIMBER SALE CONTRACT HAS LEFT TO THE JUDGMENT OF THE FOREST SERVICE. EACH DEFINITION IS NUMBERED WITH THE CONTRACT NUMBER OF THE MEASURE IT DEFINES."

THEREAFTER, THIS LANGUAGE APPEARS:

"SPECIFIC FIRE PRECAUTIONARY MEASURES NOT DEFINED IN THE TIMBER SALE CONTRACT

"THESE DEFINITIONS DO NOT LIST PRECAUTIONS DEFINED IN THE CONTRACT NOR DO THEY INCLUDE ALL MEASURES AND DUTIES REQUIRED UNDER STATE AND FEDERAL FIRE LAWS."

ON THE SAME PAGE AS THE ABOVE, THERE IS THIS PROVISION:

"IN ADDITION TO MEASURES NEEDED TO MEET UNFORESEEABLE CIRCUMSTANCES, THE PURCHASER SHALL FURNISH COMPETENT AND ADEQUATELY EQUIPPED PATROLMEN TO PREVENT, DETECT, AND SUPPRESS FIRES IN THE AREAS. IF FOREST SERVICE CONSIDERS THE DANGER OF A FIRE STARTING TOO GREAT, ALL OPERATIONS SHALL BE SHUT DOWN. THE FOREST SERVICE WILL NOTIFY THE PURCHASER WHEN SUCH FIRE DANGER PERIODS EXIST." IN THE RECORD BEFORE US, A COPY OF SECTION 9 OF THE CONTRACT, INCLUDING THE ABOVE-QUOTED SUBSECTION 9U, IS ATTACHED TO THE FIRE PLAN.

THE DOCUMENTS TRANSMITTED TO US INDICATE THAT ROSBORO BELIEVES IT IS OBLIGATED ONLY TO THE EXTENT PRESCRIBED IN THE FIRE PLAN. IF THIS CONTENTION WERE CORRECT, WE THINK ROSBORO WOULD STILL HAVE BEEN OBLIGATED TO PROVIDE FIRE PATROL SERVICES. THERE IS NOTHING IN THE PLAN WHICH RELIEVES IT OF ITS CONTRACTUAL OBLIGATION, AND INDEED THE PLAN IS A REAFFIRMANCE OF THIS DUTY. MOREOVER, IF ROSBORO'S RESPONSIBILITY FOR FURNISHING SUCH SERVICES WAS SPECIFICALLY NEGATED BY THE FIRE PLAN, THE CONTRACTUAL REQUIREMENT THEREFORE WOULD CONTROL BY VIRTUE OF PARAGRAPH 9A.2, SUPRA.

UPON EXAMINATION OF CONTRACT FORM 2400-2, WE CONCLUDE THAT UNDER SECTION 9 THEREOF THE PURCHASER IS RESPONSIBLE FOR FURNISHING PATROLMEN WHEN REQUESTED TO DO SO. FURTHERMORE, SINCE THERE IS NO INDIVIDUAL CONTRACTUAL PROVISION FOR REIMBURSEMENT TO THE PURCHASER FOR THE COST OF THE PATROL, WE ARE OF THE OPINION THAT THE COST IS TO BE BORNE BY THE PURCHASER AS PART OF ITS GENERAL CONTRACT COMMITMENT. THE FIRST TWO QUESTIONS STATED IN YOUR LETTER OF MARCH 3, 1970, ARE ANSWERED ACCORDINGLY.

THE THIRD QUESTION IS:

"IF THE PURCHASER IS REQUIRED TO FURNISH PATROL SERVICES WHEN REQUESTED TO DO SO, CAN A FOREST SERVICE OFFICER WAIVE THIS OBLIGATION BY HIRING THE PURCHASER'S EMPLOYEES ON A FIRE TIME SLIP?"

SPECIFIC FIRE PRECAUTIONARY MEASURES REQUIRED OF THE PURCHASER MAY GENERALLY BE WAIVED IN ACCORDANCE WITH PARAGRAPH 9E.2, QUOTED ABOVE. ADDITION, CERTAIN OF THE INDIVIDUAL PRECAUTIONARY PROVISIONS INCLUDE LANGUAGE WHICH WOULD PERMIT THEIR WAIVER BY THE FOREST SERVICE. FOR EXAMPLE, SUBSECTIONS 9J AND 9K BEGIN WITH THE CLAUSE "UNLESS RELIEVED IN WRITING OF THIS REQUIREMENT BY THE FOREST SERVICE." THERE IS NO SUCH WAIVER PROVISION IN SUBSECTION 9U, QUOTED ABOVE.

IT DOES NOT APPEAR THAT THE REQUIRED PATROLS WERE CONSIDERED "UNNECESSARY TO PROTECT THE AREA ADEQUATELY." AS WE READ THE SECOND SENTENCE OF PARAGRAPH 9E.2, WAIVER OF A SPECIFIC PRECAUTIONARY MEASURE IS PERMISSIBLE ONLY WHEN THE REQUIREMENT WAIVED IS UNNECESSARY FOR ADEQUATE PROTECTION. THAT SENTENCE ALSO CONTEMPLATES THE SUBSTITUTION OF A DIFFERENT PRECAUTIONARY MEASURE WHERE THE NEW MEASURE WILL PROVIDE PROTECTION EQUAL TO THAT PROVIDED BY THE EXISTING MEASURE. HOWEVER, THE INTENTION IMPLICIT IN THE LANGUAGE AUTHORIZING SUBSTITUTION IS, IN OUR OPINION, THAT THE NEW PRECAUTIONARY MEASURE BE ONE WHICH INVOLVES A DIMINISHED BURDEN ON THE PURCHASER. WE DO NOT THINK THAT SUBSTITUTION OF ONE MEASURE FOR ANOTHER WAS INTENDED TO CAST A FINANCIAL RESPONSIBILITY ON THE FOREST SERVICE WHICH DID NOT PERTAIN UNDER THE OLD MEASURE. IN SHORT, A FAIR CONSTRUCTION OF THIS SENTENCE IN PARAGRAPH 9E.2 IS THAT THE PROVISION AUTHORIZING SUBSTITUTION WAS INTENDED TO EASE THE PURCHASER'S OBLIGATION, NOT TO CREATE A NEW OBLIGATION ON THE PART OF THE FOREST SERVICE.

WE THINK THIS INTERPRETATION OF PARAGRAPH 9E.2 IS FURTHER INDICATED FOR THE REASON THAT THE CONTRARY CONSTRUCTION WOULD ALLOW THE FOREST SERVICE TO DO INDIRECTLY WHAT IT IS PROHIBITED FROM DOING DIRECTLY. THAT IS, THE FOREST SERVICE WOULD BE PERMITTED TO WAIVE A VESTED CONTRACT RIGHT OF THE GOVERNMENT WITHOUT ADEQUATE CONSIDERATION. AS WE STATED IN OUR DECISION B -166606, MAY 15, 1969:

"* * * WITHOUT A COMPENSATING BENEFIT TO THE UNITED STATES, AGENTS AND OFFICERS OF THE GOVERNMENT HAVE NO AUTHORITY TO DISPOSE OF THE MONEY OR PROPERTY OF THE UNITED STATES, TO MODIFY EXISTING CONTRACTS, OR TO SURRENDER OR WAIVE CONTRACT RIGHTS THAT HAVE VESTED IN THE GOVERNMENT. SEE UNITED STATES V. AMERICAN SALES CORPORATION, 27 F. 2D 389, AFFIRMED 32 F. 2D 141, CERTIORARI DENIED 280 U.S. 574; THE PACIFIC HARDWARE & STEEL CO. V. UNITED STATES, 49 CT. CL. 327, 335; AND BAUSCH & LOMB OPTICAL COMPANY V. UNITED STATES, 78 CT. CL. 584, 607."

ACCORDINGLY, YOUR THIRD QUESTION IS ANSWERED IN THE NEGATIVE.

THE FOURTH QUESTION POSED BY YOU IS:

"IF THE PURCHASER'S MEN ARE HIRED ON A FIRE TIME SLIP, AND THUS ARE UNDER THE CONTROL OF FOREST SERVICE, CAN THE FOREST SERVICE PROPERLY BILL THE PURCHASER FOR HIREES' SALARY UNDER PURCHASER'S OBLIGATION TO FURNISH PATROL SERVICE UNDER EITHER 2400-5 OR 2400-2 CONTRACT FORMS?" IN VIEW OF OUR CONCLUSIONS IN THIS CASE AND IN B-164949, SUPRA, THAT THE PURCHASERS WERE REQUIRED TO PROVIDE THE REQUESTED FIRE PATROL SERVICES TO THE FOREST SERVICE AS A PART OF THEIR BASIC CONTRACT OBLIGATION AND WITHOUT REIMBURSEMENT BY THE GOVERNMENT, THE PAYMENT BY THE FOREST SERVICE OF THE SALARIES OF THE PURCHASERS' EMPLOYEES WAS IMPROPER, EVEN THOUGH IN ROSBORO'S CASE THE MEN WERE PLACED ON THE FOREST SERVICE PAYROLL AND EVEN THOUGH THE FOREST SERVICE DIRECTED AND CONTROLLED THEIR ACTIVITIES WITHOUT THE COMPANY'S CONCURRENCE. THE ADMINISTRATIVE ACTIONS IN THIS MATTER COULD NOT SERVE TO RELIEVE ROSBORO OF ITS OBLIGATIONS WITHOUT A COMPENSATING BENEFIT TO THE GOVERNMENT. FURTHER, SUBSECTION 9U DOES NOT EXPLICITLY GIVE THE PURCHASER THE RIGHT TO DIRECT AND CONTROL THE PATROL ACTIVITIES OF ITS EMPLOYEES. BY IMPLICATION, THAT RIGHT IS IN THE FOREST SERVICE, AND WE OBSERVE IN THE RECORD AN INDICATION THAT THE USUAL PRACTICE IS FOR THE FOREST SERVICE TO CONTROL THESE ACTIVITIES "THROUGH" ROSBORO AS AN INTERMEDIARY. IN ADDITION, SUBSECTION 9U CLEARLY DOES NOT PROVIDE A BASIS UPON WHICH ROSBORO COULD PROPERLY OBJECT TO A REASONABLE FOREST SERVICE REQUEST FOR ADDITIONAL MEN FOR PATROL. THEREFORE, ROSBORO'S NONCONCURRENCE IN THE FOREST SERVICE'S HIRING AND DIRECTION OF THE PATROLMEN IS IMMATERIAL.

THE FOREST SERVICE COULD HAVE FOLLOWED THE USUAL PROCEDURE OF REQUESTING THE PURCHASER TO FURNISH ADDITIONAL PATROLMEN, AND IN SUCH EVENT THE PURCHASER WOULD HAVE BEEN REQUIRED TO PAY THE WAGES OF ITS EMPLOYEES WITHOUT REIMBURSEMENT. WE DO NOT VIEW THE DEPARTURE FROM THIS NORMAL PROCEDURE AS AFFECTING THE RIGHTS AND DUTIES OF THE PARTIES TO THE CONTRACT. THEREFORE, WE BELIEVE THAT THE SALARIES PAID TO THE PURCHASER'S EMPLOYEES BY THE FOREST SERVICE SHOULD BE RECOVERED FROM THE PURCHASER.

YOU HAVE PRESENTED A FIFTH QUESTION, AS FOLLOWS:

"IF PURCHASER'S MEN ARE HIRED ON FIRE TIME SLIPS, AND PAID BY FOREST SERVICE, WILL PAYMENTS TO THE PURCHASER FOR EQUIPMENT RENTAL BE PROPERLY RECOVERABLE FROM THE PURCHASER EVEN IF AMOUNTS PAID DIRECTLY TO THE MEN ARE NOT?" EARLIER IN YOUR LETTER IT WAS DISCLOSED THAT ROSBORO "WAS PAID FOR THE USE OF VEHICLES IN CONNECTION WITH THE PATROL ACTIVITIES."

CONTRACT FORM 2400-2 CLEARLY STATES IN SUBSECTION 9U THAT THE "PATROLMEN SHALL BE PROVIDED WITH ADEQUATE MEANS OF TRANSPORTATION." IN PARAGRAPH C7.21Q OF CONTRACT FORM 2400-5, IT IS STATED: "PATROLMEN SHALL BE EQUIPPED WITH SUITABLE TRANSPORTATION." NEITHER CONTRACT FORM PROVIDES FOR REIMBURSEMENT TO THE PURCHASER OF THE EXPENSES ASSOCIATED WITH AFFORDING THE PATROLMEN THE REQUIRED TRANSPORTATION. WE THEREFORE CONCLUDE THAT THESE COSTS, LIKE THE WAGES PAID TO THE PATROLMEN, ARE NOT REIMBURSABLE BY THE FOREST SERVICE, AND THE RENTAL PAID BY THE FOREST SERVICE SHOULD BE RECOVERED FROM THE PURCHASER.

THE SIXTH AND SEVENTH QUESTIONS ARE:

"SHOULD THE OUTSTANDING PORTION OF THE BILL BE COLLECTED AS FUNDS BECOME AVAILABLE FOR SETOFF?

"SHOULD THE AMOUNTS ALREADY COLLECTED BE REFUNDED, OR SHOULD THE PORTION REPRESENTING EQUIPMENT RENTAL BE RETAINED WITH THE BALANCE REFUNDED?"

IN LIGHT OF OUR CONCLUSIONS IN THIS MATTER, THERE SHOULD BE NO REFUND OF AMOUNTS ALREADY COLLECTED. COLLECTION OF ANY AMOUNTS DETERMINED TO BE DUE THE GOVERNMENT BY REASON OF OUR HOLDINGS HEREIN SHOULD BE UNDERTAKEN PURSUANT TO THE PROCEDURES CONTAINED IN THE FEDERAL CLAIMS COLLECTION STANDARDS, 4 CFR 102.