B-175646, JUN 2, 1972

B-175646: Jun 2, 1972

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AGENTS AND OFFICERS OF THE GOVERNMENT HAVE NO AUTHORITY. OR TO WAIVE CONTRACT RIGHTS WHICH HAVE VESTED IN THE UNITED STATES. 47 COMP. THERE IS SUFFICIENT JUSTIFICATION FOR THE MODIFICATION OF THE CONTRACTS AS PROPOSED. IT IS REPORTED THAT THERE ARE PRESENTLY TWO PRINCIPAL CONTRACT FORMS IN USE. FORM 2400-5 HAS BEEN IN USE SINCE 1965 BUT IS BEING PHASED OUT AND REPLACED BY FORM 2400-6. IT IS REPORTED THAT A MAJOR PART OF THE TIMBER CUTTING CONTRACTS FOR THE NEXT TWO TO FIVE YEARS WILL BE GOVERNED BY THE TERMS AND CONDITIONS OF FORM 2400-5. THE OLDER FORM DIFFERS FROM FORM 2400-6 WITH RESPECT TO THE PRICE TO BE PAID FOR LOGS OR PORTIONS OF TREES REMOVED BY THE CONTRACTOR WHICH ARE OF SMALLER SIZE THAN THE MINIMUM UTILIZATION STANDARDS SPECIFIED IN THE CONTRACTS.

B-175646, JUN 2, 1972

CONTRACTS - MODIFICATION - WAIVER OF GOVERNMENT'S RIGHTS DECISION ALLOWING THE FOREST SERVICE TO MODIFY THE STANDARD TIMBER SALES CONTRACT CURRENTLY IN USE, SO AS TO ALLOW THE WAIVER OF THE UNDERSIZED TIMBER PAYMENT PROVISIONS. AGENTS AND OFFICERS OF THE GOVERNMENT HAVE NO AUTHORITY, WITHOUT A COMPENSATING BENEFIT TO THE GOVERNMENT, TO MODIFY EXISTING CONTRACTS, OR TO WAIVE CONTRACT RIGHTS WHICH HAVE VESTED IN THE UNITED STATES. 47 COMP. GEN. 732 (1968). HOWEVER, SINCE THE REQUESTED MODIFICATION WOULD RESULT IN CERTAIN ADDITIONAL BENEFITS TO THE GOVERNMENT, THERE IS SUFFICIENT JUSTIFICATION FOR THE MODIFICATION OF THE CONTRACTS AS PROPOSED.

TO MR. SECRETARY:

BY LETTER DATED APRIL 6, 1972, THE ASSISTANT SECRETARY REQUESTED OUR DECISION ON A MATTER INVOLVING MODIFICATION OF STANDARD TIMBER SALE CONTRACTS IN USE BY THE FOREST SERVICE FOR SELLING TIMBER.

IT IS REPORTED THAT THERE ARE PRESENTLY TWO PRINCIPAL CONTRACT FORMS IN USE. FORM 2400-5 HAS BEEN IN USE SINCE 1965 BUT IS BEING PHASED OUT AND REPLACED BY FORM 2400-6. HOWEVER, IT IS REPORTED THAT A MAJOR PART OF THE TIMBER CUTTING CONTRACTS FOR THE NEXT TWO TO FIVE YEARS WILL BE GOVERNED BY THE TERMS AND CONDITIONS OF FORM 2400-5.

THE OLDER FORM DIFFERS FROM FORM 2400-6 WITH RESPECT TO THE PRICE TO BE PAID FOR LOGS OR PORTIONS OF TREES REMOVED BY THE CONTRACTOR WHICH ARE OF SMALLER SIZE THAN THE MINIMUM UTILIZATION STANDARDS SPECIFIED IN THE CONTRACTS. BY THE TERMS OF FORM 2400-5 UNDERSIZED TIMBER MUST BE PAID FOR AT CURRENT CONTRACT RATES, WHEREAS THE SAME TIMBER MAY BE REMOVED WITHOUT CHARGE UNDER THE TERMS OF FORM 2400-6. THE LATTER PROVISION IS DESIGNED TO ENCOURAGE THE REMOVAL OF TIMBER BELOW MINIMUM SIZE BECAUSE OF CERTAIN ADVANTAGES TO THE GOVERNMENT. IT IS REPORTED THAT REMOVAL OF SUCH TIMBER IS ADVANTAGEOUS BECAUSE IT REDUCES THE RISK OF FIRE, REDUCES THE COST OF DEBRIS DISPOSAL, REDUCES SMOKE POLLUTION INVOLVED IN DISPOSAL, IMPROVES SITE PREPARATION FOR PLANTING, AND AVOIDS WASTE OF A RAW MATERIAL HAVING SOME VALUE. THESE ADVANTAGES ARE CONSIDERED TO GREATLY OUTWEIGH ANY SLIGHT DISADVANTAGE RESULTING FROM FOREGOING THE CHARGE UNDER THE OLDER FORM. THEREFORE, OUR DECISION ON AUTHORITY TO MODIFY THE OLDER CONTRACTS ACCORDINGLY IS REQUESTED.

IT IS A WELL-ESTABLISHED RULE THAT AGENTS AND OFFICERS OF THE GOVERNMENT HAVE NO AUTHORITY, WITHOUT A COMPENSATING BENEFIT TO THE GOVERNMENT, TO MODIFY EXISTING CONTRACTS, OR TO WAIVE CONTRACT RIGHTS WHICH HAVE VESTED IN THE UNITED STATES. 47 COMP. GEN. 732, 736 (1968). SINCE MODIFICATION OF THE CONTRACTS GOVERNED BY THE TERMS OF FORM 2400-5 TO PROVIDE FOR WAIVER OF THE GOVERNMENT'S VESTED RIGHT TO CHARGE A FEE FOR REMOVAL OF UNDERSIZED TIMBER WOULD RESULT IN THE DESCRIBED ADDITIONAL BENEFITS TO THE GOVERNMENT UPON REMOVAL OF SUCH TIMBER, IT IS OUR VIEW THAT THERE IS SUFFICIENT JUSTIFICATION FOR THE MODIFICATION OF THE CONTRACTS AS PROPOSED.

ACCORDINGLY, OUR OFFICE WILL INTERPOSE NO OBJECTION TO SUCH MODIFICATIONS.