B-154133, SEP. 17, 1964

B-154133, SEP. 17, 1964

TO THE HONORABLE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO LETTER OF MAY 6, 1964, FROM THE ASSISTANT SECRETARY OF THE INTERIOR, REQUESTING A DECISION CONCERNING THE CLAIM BY K. B. WOOD AND ASSOCIATES, INCORPORATED, FOR $25,855.20 IN EXCESS OF THE AMOUNT SPECIFIED IN CONTRACT NO. 14-20-0650-1058.

THE CONTRACT IS A NEGOTIATED AGREEMENT FOR AERIAL PHOTOGRAPHY, MAPPING, AND FOREST INVENTORY OF THE BLACKFEET, ROCKY BOY'S AND WIND RIVER INDIAN RESERVATIONS. THE CLAIM IS MADE ON THE BASIS THAT THE ESTIMATE OF 490,000 ACRES UNDER ITEM 1, AERIAL PHOTOGRAPHY, AND ITEM 2, MAPPING, WAS GROSSLY UNDERSTATED; AND THAT IT WAS NECESSARY TO PHOTOGRAPH AND MAP A GROSS AREA OF 1,007,104 ACRES. THE AMOUNT OF THE CLAIM IS BASED ON THE DIFFERENCE BETWEEN THE ESTIMATED 490,000 ACRES AND THE GROSS ACTUAL ACREAGE OF 1,007,104 ACRES AT 5 CENTS PER ACRE, THE AMOUNT STATED TO HAVE BEEN USED IN COMPUTING ITS ORIGINAL OFFER.

ARTICLES I, II, AND IV OF THE CONTRACT PROVIDE, IN PERTINENT PART, AS FOLLOWS:

"ARTICLE I. SCOPE OF THE CONTRACT

"A. THE CONTRACTOR SHALL PERFORM WORK UNDER THIS CONTRACT AS STIPULATED IN "SPECIAL CONDITIONS FOR AERIAL PHOTOGRAPHY, MAPPING, AND FOREST INVENTORY FOR THE BLACKFEET, ROCKY BOY'S WIND RIVER INDIAN RESERVATIONS," "GENERAL CONDITIONS APPLICABLE TO ITEMS I AND II--- AERIAL PHOTOGRAPHY AND MAPPING," "SPECIFICATIONS FOR AERIAL PHOTOGRAPHY AND MAPPING FOR BLACKFEET, ROCKY BOY'S AND WIND RIVER INDIAN RESERVATIONS," "GENERAL SPECIFICATIONS, ITEM III--- FOREST INVENTORY--- BLACKFEET, ROCKY BOY-S, AND WIND RIVER INDIAN RESERVATIONS," "DETAILED SPECIFICATIONS FOR BLACKFEET, ROCKY BOY'S AND WIND RIVER INDIAN RESERVATIONS" FOREST INVENTORY.'"

"ARTICLE II. CONSIDERATION AND METHOD OF PAYMENT

"THE GOVERNMENT SHALL PAY THE CONTRACTOR A TOTAL FIXED SUM OF FORTY EIGHT THOUSAND FIVE HUNDRED ($48,500.) DOLLARS.' (THERE FOLLOWS A DETAILED STATEMENT OF AMOUNTS TOTALING $48,500, THAT WILL BE PAID AT THE CONCLUSION OF EIGHT CATEGORIES OF WORK ON EACH OF THE THREE RESERVATIONS.)

"ARTICLE IV. PAYMENTS

"B. NO TERMS OR PROVISIONS OF THIS CONTRACT SHALL BE INTERPRETED OR CONSTRUED TO PLACE ANY LIABILITY WHATSOEVER ON THE UNITED STATES GOVERNMENT OTHER THAN THE PAYMENT OF THE STIPULATED SUMS PROVIDED HEREIN.'

THE SPECIAL CONDITIONS REFERRED TO IN ARTICLE I, QUOTED ABOVE, PROVIDE AS FOLLOWS:

"SPECIAL CONDITIONS

"FOR AERIAL PHOTOGRAPHY, MAPPING, AND FOREST INVENTORY FOR THE

BLACKFEET, ROCKY BOY-S, WIND RIVER INDIAN RESERVATIONS

"THE BUREAU OF INDIAN AFFAIRS REQUIRES THE FURNISHING OF THE FOLLOWING ITEMS FOR THE AREA INDICATED ON THE ATTACHED MAP (EXHIBIT IA) AND LISTED BELOW:

"ITEM I. AERIAL PHOTOGRAPHY:

AERIAL PHOTOGRAPH NEGATIVES AND NEW CONTACT PRINTS OF THE FORESTED AREA OF THE ABOVE INDIAN RESERVATIONS, ESTIMATED TO BE 490,000* ACRES.

"ITEM II. MAPPING.

PLANIMETRIC BASE MAP OF THE FORESTED AREAS OF THE ABOVE INDIAN RESERVATIONS, ESTIMATED TO BE 490,000* ACRES, PHOTO INDEX FLIGHT MAP, PLANIMETRIC BASE MAP, AND COVER TYPE MAP FOR EACH BLOCK OF FOUR TOWNSHIPS WITHIN THE RESERVATION THAT CONTAINS AT LEAST 10 ACRES OF COMMERCIAL TIMBER TYPE AND OWNERSHIP OVERLAY FOR EACH BLOCK OF FOUR TOWNSHIPS WITHIN THE RESERVATION.

"ITEM III. FOREST INVENTORY

FOREST INVENTORY DATA TO BE COLLECTED AND COMPILED USING PLOT CLUSTERS OF TWO 1/4 ACRE CIRCULAR SUBPLOTS PLACED IN THE COMMERCIAL FOREST AREA, ESTIMATED TO BE 303,000* ACRES, ON A SYSTEMATIC GRID TO GIVE AN OVERALL STATISTICAL ERROR IN TOTAL BOARD FEET AND CUBIC FEET VOLUMES OF NOT GREATER THAN 5 PERCENT IN TERMS OF ONE STANDARD ERROR.

"* THE AREA FIGURE IS NOT INTENDED TO LIMIT THE AREA TO BE INCLUDED, BUT IS GIVEN ONLY TO INDICATE THE APPROXIMATE SIZE OF THE PROJECT.

"BREAKDOWN BY RESERVATION IS ESTIMATED AS:

TABLE

PHOTOGRAPHY AND MAPPING FOREST INVENTORY

BLACKFEET 116,000 ACRES 34,000 ACRES

ROCKY BOY'S 16,000 ACRES 11,000 ACRES

WIND RIVER 358,000 ACRES 258,000 ACRES

TOTAL 490,000 ACRES 303,000 ACRES"

WITH RESPECT TO THE CLAIM THAT IT WAS NECESSARY TO PHOTOGRAPH AND MAP AN AREA OVER TWICE "THE QUANTITY GIVEN US FOR "ESTIMATING THE SCOPE OF THE PROJECT" AND THAT THERE WAS NO OTHER WAY TO CHECK THESE ESTIMATES UNTIL IT WAS COMPLETED," THE AREA DIRECTOR, BUREAU OF INDIAN AFFAIRS, REPORTS AS FOLLOWS:

"THE CONTRACTOR APPARENTLY JUSTIFIES HIS REQUEST BY EQUATING THE GROSS AREA MAPPED WITH THE ESTIMATED FOREST AREA AS SHOWN UNDER SPECIAL CONDITIONS, SECTION B, OF THE CONTRACT. THIS SECTION PROVIDES THAT AERIAL PHOTOS AND MAPS BE FURNISHED OF THE AREAS AS INDICATED ON AN ATTACHED MAP AND LISTED AS:

"ITEM 1: AERIAL PHOTOGRAPHS ... OF THE FORESTED AREA ... ESTIMATED TO BE 490,000 ACRES.

"ITEM 2: PLANIMETRIC BASE MAP OF THE FORESTED AREA ... ESTIMATED TO BE 490,000 ACRES, ... FOR EACH BLOCK OF FOUR TOWNSHIPS ... THAT CONTAINS AT LEAST 10 ACRES OF COMMERCIAL TIMBER TYPE. ...

"THE FOREGOING ITEMS PROVIDE AN ESTIMATE OF THE NUMBER OF FORESTED ACRES ON THESE RESERVATIONS. ITEM 2 CLEARLY REQUIRES THE MAPPING OF ALL TOWNSHIPS THAT CONTAIN VERY SMALL AREAS OF COMMERCIAL TIMBER. THIS INEVITABLY WOULD REQUIRE THE MAPPING OF NONFOREST AREAS.

"THE MAPS ATTACHED TO THE CONTRACT AND REFERRED TO AS ITEM 2 IN THE CONTRACTOR'S JUSTIFICATION WERE 1"--- 12 MILE SCALE MAPS OF EACH RESERVATION. THESE MAPS INDICATE BY CROSSHATCHING THE APPROXIMATE PORTIONS OF EACH RESERVATION CONTAINING FORESTED AREAS. THESE CROSSHATCHED PORTIONS OF THE MAPS ATTACHED TO THE CONTRACT TOTAL APPROXIMATELY 785,000 ACRES AS FOLLOWS:

TABLE

BLACKFEET 227,000

ROCKY BOY'S 34,000

WIND RIVER 525,000

TOTAL 786,000 (APPROXIMATELY 785,000 ACRES)

"THE ABOVE WAS DETERMINED USING A DOT GRID WITH 100 DOTS PER SQUARE INCH, OR 25 DOTS PER TOWNSHIP.

"THE COVER TYPES IN SECTION C, PAGE 15 OF THE CONTRACT, CLEARLY PROVIDE FOR NONTIMBER TYPES TO BE USED IN TIMBER TYPING ON MAPS AND PHOTOS. ITEM I (D) IN SECTION C, PAGE 10 OF THE CONTRACT, PROVIDES THAT NONTIMBERED AREAS WILL BE DELINEATED DOWN TO 2.5 ACRES. THESE CLEARLY INDICATE THAT NONTIMBER AREAS WILL BE FOUND WITHIN THE PORTIONS OF THESE RESERVATIONS CONTAINING FORESTED AREAS.

"THE CONTRACT DOES NOT ATTEMPT TO ESTIMATE GROSS AREA TO BE MAPPED. THE ABOVE POINTS DEMONSTRATE THAT THE CONTRACT ESTIMATE OF ACREAGE OF FORESTED AREAS CANNOT BE EQUATED WITH GROSS AREA TO BE MAPPED.

"ITEM II 2 (B) IN SECTION C, PAGE 12 OF THE CONTRACT, REQUIRES THAT, "EACH MAP SHALL BE EXTENDED TO INCLUDE A PERIPHERAL STRIP ONE MILE WIDE.' OUR NOTES INDICATE THE FOLLOWING APPROXIMATE ACREAGE MAPPED BY THE CONTRACTOR, NOT INCLUDING ANY PERIPHERAL STRIPS:

TABLE

BLACKFEET 250,000

ROCKY BOY'S 35,000

WIND RIVER 565,000

TOTAL 850,000

"THIS ACREAGE IS APPROXIMATE BUT CAN BE ROUGHLY ESTIMATED FROM THE AREAS SHOWN ON THE MAPS ATTACHED TO THE CONTRACT. THE MAPPING INEVITABLY INVOLVES A LARGER ACREAGE BECAUSE THE CONTRACT REQUIRES THAT FULL TOWNSHIPS BE MAPPED, AND THE MAPS ATTACHED TO THE CONTRACT PROVIDE A ROUGH DELINEATION OF THE PORTIONS OF THE RESERVATIONS CONTAINING FORESTED LAND WITHOUT REGARD TO LEGAL SUBDIVISIONS.

"THE 850,000 ACRE FIGURE DOES NOT INCLUDE ANY ACREAGE IN PERIPHERAL STRIPS. THOSE PERIPHERAL STRIPS WITHIN RESERVATION BOUNDARIES AND ON THE EDGES OF THE MAPPED AREA TOTAL APPROXIMATELY 120,000 ACRES. THIS, PLUS THE ABOVE 850,000 ACRE ESTIMATE, TOTALS 970,000 ACRES. THIS IS ROUGHLY COMPARABLE TO THE CONTRACTOR'S FIGURE OF 1,007,104 ACRES. THE ACREAGE IN THE PERIPHERAL STRIPS LYING OUTSIDE THE TIMBERED AREAS ALSO CANNOT BE EQUATED WITH THE CONTRACT ESTIMATE OF FORESTED ACRES OR THE PORTIONS OF THE RESERVATIONS CONTAINING THESE FORESTED ACRES.

"IN SHORT, THE CONTRACTOR APPARENTLY BASES HIS REQUEST ON GROSS AREA MAPPED WITHIN THE RESERVATIONS. THE CONTRACT DOES NOT ATTEMPT TO ESTIMATE GROSS ACRES TO BE MAPPED, NOR DOES IT ANYWHERE IMPLY THAT FOREST ACREAGE ESTIMATES OR AREAS DELINEATED ON MAPS ATTACHED TO THE CONTRACT WOULD EQUAL GROSS ACREAGE MAPPED ALTHOUGH A ROUGH ESTIMATE OF THE GROSS AREA TO BE MAPPED MAY BE MADE FROM THE CONTRACT MAPS. FURTHER, THE CONTRACT TERMS MENTIONED ABOVE CONSISTENTLY INDICATE THAT GROSS ACREAGE MAPPED WOULD HAVE TO EXCEED THE AREAS DELINEATED ON THE MAPS ATTACHED TO THE CONTRACT AND THE ESTIMATE OF ACRES ACTUALLY FORESTED.

"THE CONTRACTOR STATES THAT, IN EFFECT, THE GROSS ACREAGE OF MAPPING COULDN-T BE DETERMINED UNTIL THE PROJECT WAS COMPLETED. SINCE THE TERMS OF THE CONTRACT CLEARLY REQUIRED THAT TOWNSHIPS WERE THE MINIMUM MAPPING UNIT, A VERY BRIEF CHECK OF THE CONTRACT MAPS WOULD HAVE INDICATED THAT GROSS MAPPING ACREAGE MIGHT EASILY INVOLVE 800,000 TO 1,000,000 ACRES, NOT INCLUDING ANY PERIPHERAL STRIPS IN UNMAPPED TOWNSHIPS.

"THE SPECIFICATIONS FOR AERIAL PHOTOS AND MAPPING, SECTION C, PAGE 1 OF THE CONTRACT, STATES THAT THE LOCATION, DIMENSION AND BOUNDARIES OF THE AREAS TO BE PHOTOGRAPHED AND MAPPED ARE SET FORTH IN THE SCHEDULE OF THE ADVERTISEMENT AND ON THE MAP ATTACHED HERETO. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT SUCH DIMENSIONS ARE APPROXIMATE ONLY.

"THE LOCATIONS, DIMENSIONS AND BOUNDARIES OF THE AREAS INVOLVED COULD ONLY BE TAKEN FROM THE MAPS. ANY ESTIMATE OF THE GROSS AREA TO BE MAPPED MADE BY THE CONTRACTOR WOULD HAVE HAD TO BE DRAWN FROM THESE MAPS AND AN EXAMINATION OF THE MAPPING SPECIFICATIONS.'

IT APPEARS CLEAR AS STATED BY THE AREA DIRECTOR THAT THE ESTIMATE OF 490,000 ACRES SET FORTH IN ITEMS I AND II OF THE SPECIAL CONDITIONS REFERS ONLY TO "FORESTED AREAS" TO BE PHOTOGRAPHED AND MAPPED AND NOT TO THE TOTAL GROSS AREA. THIS WOULD SEEM TO BE SUPPORTED BY THE ESTIMATED 303,000 ACRES GIVEN UNDER ITEM III FOR WHICH FOREST INVENTORY DATA WAS TO BE COLLECTED AND COMPILED WITHIN THE "FORESTED AREA" AND NOT THE TOTAL GROSS AREA. THUS, THERE WOULD APPEAR NO BASIS TO PAY FOR THE PHOTOGRAPHING AND MAPPING WORK ON A GROSS AREA BASIS AS REQUESTED BY THE CONTRACTOR.

FURTHERMORE, ARTICLE IV (B) OF THE CONTRACT PROVIDES THAT NO TERMS OR PROVISIONS OF THIS CONTRACT SHALL BE INTERPRETED OR CONSTRUED TO PLACE ANY LIABILITY WHATSOEVER ON THE GOVERNMENT OTHER THAN THE PAYMENT OF THE STIPULATED SUMS PROVIDED THEREIN. ARTICLE II PROVIDES THAT THE GOVERNMENT SHALL PAY THE CONTRACTOR A TOTAL FIXED SUM OF $48,500 FOR ALL THE WORK COVERED BY THE CONTRACT. ACCORDINGLY, YOU ARE ADVISED THAT THERE IS NO BASIS FOR PAYMENT TO K. B. WOOD AND ASSOCIATES, INCORPORATED, OF ANY AMOUNT IN EXCESS OF THE FIXED SUM SPECIFIED IN CONTRACT NO. 14-20-0650- 1058.