B-195933.OM, JUL 29, 1980

B-195933.OM: Jul 29, 1980

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PRECIS-UNAVAILABLE COMPTROLLER GENERAL: HEREWITH IS THE FILE RELATIVE TO THE CLAIM OF POTLATCH CORPORATION. 780 IN PURCHASER CREDITS WAS ALLOWED FOR THE WORK TO BE DONE IN RECONSTRUCTING THE ESTIMATED 5.0 MILES OF ROAD. IT WAS DISCOVERED AFTER THE SALE THAT THE ROAD ENDED AT MILE POST 6. HE CITES CONTRACT BOARD OF APPEALS CASE AGBCA NO. 76-166 AS THE BASIS FOR HIS DECISION AS THE FACTS OF THE TWO CLAIMS ARE ESSENTIALLY THE SAME. IT WAS HELD THE CONTRACT DID NOT PROVIDE MEANS FOR CORRECTING ERRORS MADE IN THE ORIGINAL ROAD SURVEY AND/OR COST ESTIMATES AS THE CONSTRUCTION AND VOLUME ESTIMATES WERE NOT GUARANTEED AND PROSPECTIVE PURCHASERS WERE EXPECTED TO MAKE THEIR OWN INDEPENDENT ESTIMATES AND BID ACCORDINGLY.

B-195933.OM, JUL 29, 1980

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

HEREWITH IS THE FILE RELATIVE TO THE CLAIM OF POTLATCH CORPORATION, WOOD PRODUCTS, WESTERN DIVISION (POTLATCH), FOR REFORMATION OF PINE CREEK TIMBER SALE CONTRACT 01239-8 TO ALLOW ADDITIONAL PURCHASER CREDIT ALLOWANCE OF $12,365.00 REGARDING AN ERROR IN THE LENGTH OF ROAD 660.

POTLATCH PURCHASED THE PINE CREEK SALE, CONTRACT #01239-8, FROM THE U. S. FOREST SERVICE ON AUGUST 5, 1976. THE DRAWING AND CONTRACT SHEETS SHOWED ROAD 660 AS ENDING AT MILE POST 5, AND A TOTAL OF $95,780 IN PURCHASER CREDITS WAS ALLOWED FOR THE WORK TO BE DONE IN RECONSTRUCTING THE ESTIMATED 5.0 MILES OF ROAD.

IT WAS DISCOVERED AFTER THE SALE THAT THE ROAD ENDED AT MILE POST 6, A DIFFERENCE OF ONE MILE. THE EXTRA LENGTH NECESSITATED ADDITIONAL WORK OTHER THAN THAT COVERED BY THE PURCHASER CREDIT.

THE CONTRACTING OFFICER HAS STATED THE CLAIM MAY NOT BE ALLOWED AS THE PROVISIONS OF THE TIMBER SALE CONTRACT DO NOT ALLOW ANY REMEDY FOR ADDITIONAL PURCHASE CREDIT FOR CLERICAL ERRORS. HE CITES CONTRACT BOARD OF APPEALS CASE AGBCA NO. 76-166 AS THE BASIS FOR HIS DECISION AS THE FACTS OF THE TWO CLAIMS ARE ESSENTIALLY THE SAME. IN THE CITED CASE, IT WAS HELD THE CONTRACT DID NOT PROVIDE MEANS FOR CORRECTING ERRORS MADE IN THE ORIGINAL ROAD SURVEY AND/OR COST ESTIMATES AS THE CONSTRUCTION AND VOLUME ESTIMATES WERE NOT GUARANTEED AND PROSPECTIVE PURCHASERS WERE EXPECTED TO MAKE THEIR OWN INDEPENDENT ESTIMATES AND BID ACCORDINGLY.

IN PRIOR C.G. DECISIONS, MODIFICATION OF THE CONTRACT PRICE HAS BEEN PERMITTED WHERE THERE HAS BEEN AN ERRONEOUS REPRESENTATION OF A MATERIAL FACT BY THE GOVERNMENT CONCERNING THE WORK TO BE DONE.

THE MATTER IS SUBMITTED FOR YOUR CONSIDERATION AND INSTRUCTIONS AS TO WHETHER THE ERROR REGARDING THE LENGTH OF THE ROAD WOULD JUSTIFY REFORMATION OF THE CONTRACT TO ALLOW PAYMENT OF THE ADDITIONAL PURCHASER CREDIT.

INDORSEMENT

ASSOCIATE DIRECTOR, FGMS DIVISION - CLAIMS GROUP

RETURNED. ATTACHED IS THE FILE CONCERNING THE CLAIM OF POTLATCH CORPORATION WOOD PRODUCTS, WESTERN DIVISION (POTLATCH), FOR REFORMATION OF PINE CREEK TIMBER SALE CONTRACT 01239-8 TO ALLOW ADDITIONAL PURCHASER ROAD CREDIT ALLOWANCE OF $12,365 BASED ON AN ERROR IN THE LENGTH OF ROAD 660. THIS ERROR WAS NOT DISCOVERED UNTIL AFTER THE CONTRACT WAS ENTERED INTO. NEVERTHELESS, THE FOREST SERVICE DID REQUEST THAT POTLATCH RECONSTRUCT THE ENTIRE INTENDED ROAD LENGTH. THE FILE INDICATES THAT HAD THE CORRECT LENGTH BEEN USED, THE PURCHASER ROAD CREDIT WOULD HAVE BEEN $108,145, NOT $95,780.

ROAD 660, WHICH RUNS FROM THE JUNCTION OF ROAD 250 TO THE JUNCTION OF ROAD 5218, WAS STAKED BY THE FOREST SERVICE PRIOR TO THE AWARD OF THE CONTRACT TO POTLATCH. THE ENTIRE LENGTH WAS DETERMINED TO BE 31,700 FEET. HOWEVER, DUE TO AN ERROR BY THE FOREST SERVICE'S ROAD DESIGNER, THE LENGTH OF ROAD 660 WAS STATED TO BE 5 MILES (26,400 FEET). THIS FIGURE WAS REFLECTED IN THE SALE AREA MAP AND IN SOME OF THE CONTRACT DOCUMENTS.

THE FOREST SERVICE NOTES, HOWEVER, THAT IN ONE PART OF THE CONTRACT DOCUMENTS THE LENGTH OF THE ROAD TO BE CONSTRUCTED WAS STATED TO BE "APPROXIMATELY" 5 MILES (26,400 FEET); THEREFORE, THE FOREST SERVICE APPARENTLY CONTENDS THAT OUR CASES CONCERNING ERRONEOUS GOVERNMENT ESTIMATES ARE FOR APPLICATION AND THAT UNDER THESE CASES THE CLAIM SHOULD BE DENIED.

THE FOREST SERVICE KNEW THE EXACT LENGTH OF ROAD 660 BUT, DUE TO AN ERROR, FAILED TO UTILIZE IT WITH THE RESULT THAT THE PURCHASER ROAD CREDIT ALLOWANCE WAS MISCALCULATED. IN THESE CIRCUMSTANCES, THE ERRONEOUS GOVERNMENT ESTIMATE CASES ARE NOT APPLICABLE. IN ADDITION, THE FILE SHOWS THAT IT WAS THE FOREST SERVICE'S INTENT TO HAVE THE ENTIRE RECONSTRUCTION OF ROAD 660 PERFORMED. THEREFORE, THE PURCHASER ROAD CREDIT SHOULD BE ADJUSTED TO REFLECT THE AMOUNT IT WOULD HAVE BEEN HAD THE CORRECT LENGTH BEEN STATED INITIALLY.

THE CLAIM MAY BE ALLOWED.

DIGEST

CLAIM FOR ADDITIONAL PURCHASER ROAD CREDIT ALLOWANCE MAY BE PAID SINCE FOREST SERVICE KNEW EXACT LENGTH OF ROAD, BUT DUE TO ERROR FAILED TO UTILIZE CORRECT LENGTH WHICH RESULTED IN MISCALCULATION OF PURCHASER ROAD CREDIT ALLOWANCE.