DENIED: September 29, 2017

DENIED: September 29, 2017

CBCA 5299

SYLVAN B. ORR,

Appellant,

v.

DEPARTMENT OF AGRICULTURE,

Respondent.

Sylvan B. Orr, pro se, Salmon, ID.

Daniel B. Rosenbluth, Office of the General Counsel, Department of Agriculture,

Golden, CO, counsel for Respondent.

Before Board Judges GOODMAN, SULLIVAN,1 and LESTER.

LESTER, Board Judge.

In this appeal of a contracting officer’s decision under the Contract Disputes Act

(CDA), 41 U.S.C. §§ 7101-7109 (2012), appellant, Sylvan B. Orr, seeks monetary

compensation under an incident blanket purchase agreement (I-BPA) with the United States

1

Judge Richard C. Walters, who was a part of the panel that issued an earlier

decision in this appeal, retired from federal service in January 2017. Judge Marian E.

Sullivan was selected by random assignment to replace him as a panel member.

CBCA 5299

2

Forest Service (USFS) (an entity within the Department of Agriculture, the respondent in this

appeal) and a task order issued pursuant to the I-BPA for weed washing units for use in the

E-60 Bobcat fire. By decision dated October 18, 2016, the Board dismissed most of Mr.

Orr’s appeal, but found that Mr. Orr could pursue that portion of his claim seeking

compensation for delays in solid waste disposal allegedly arising from actions under the

Bobcat fire resource order that post-dated an executed release of claims. Sylvan B. Orr v.

Department of Agriculture, CBCA 5299, 16-1 BCA ¶ 36,522, at 177,931. In allowing Mr.

Orr to preserve that portion of his damages claim, we held that, “[t]o the extent that Mr. Orr’s

solid waste disposal claim is based upon a Forest Service employee’s alleged actions, or

inactions, after execution of the release, the release, at least based upon the information

currently in the record, does not bar that claim.” Id. at 177,928 (emphasis in original).

The parties have now supplemented the record, providing additional factual

information to the Board, and submitted the remaining portion of Mr. Orr’s claim for a

decision on the record pursuant to Rule 19 of the Board’s rules. 48 CFR 6101.19 (2016).

The Board has thoroughly reviewed the parties’ submissions, including the USFS’s motion

for judgment on the administrative record, Mr. Orr’s cross-motion and various responses to

the Government’s motion, the USFS’s reply, several declarations, and the exhibits in the

appeal file. Those submissions establish that the allegedly defective direction, or absence

of direction, that the USFS gave Mr. Orr regarding disposal of his solid waste occurred

before Mr. Orr signed a full release of claims under the resource order and that Mr. Orr

should have been aware of the defect before signing the release. As we explain below,

because Mr. Orr signed a full release of claims without mentioning that the USFS had not

given him valid instructions for disposing of the solid waste captured during resource order

performance, we deny the portion of Mr. Orr’s claim that is still pending before us.

Findings of Fact

I.

The I-BPA

On April 9, 2013, the USFS awarded Mr. Orr an I-BPA for the supply of weed

washing equipment and associated services for use in Regions 2 and 4 (Rocky Mountain and

Intermountain Regions) during fire suppression and all-hazard incidents. Appeal File,

Exhibit A at 1.2 Weed washing involves the use of portable commercial high-pressure/lowvolume power washers in washing fire engines, heavy equipment, logging equipment, and

other vehicles to remove soil, plant parts, and seeds from them. Id. at 28-30. The I-BPA,

2

All exhibits referenced in this decision are found in the appeal file, unless

otherwise noted.

CBCA 5299

3

which identified the contractor’s place of business as being located in Salmon, Idaho, was

to be effective for three years from the date of award. Id. at 1, 25. Pursuant to the terms of

the I-BPA, the USFS would issue an unspecified number of orders to Mr. Orr, called

“resource orders,” and Mr. Orr, in response, would choose which, if any, of the orders to

accept. Id. at 28-29.

Once Mr. Orr accepted an order, he would be “responsible for [providing] all

equipment, transportation to/from incident, and setup/takedown necessary to meet or exceed

the Agreement specifications.” Exhibit A at 28. He would also be responsible for providing

at least two skilled and knowledgeable operators who would thoroughly wash all vehicles

and equipment being used in fire suppression efforts to remove any soil, plant parts, and/or

seeds from their undercarriages, cross-members, frames, belly pans, bumpers, wheel wells,

and radiator grills of those vehicles and equipment. Id. at 28-30.

The I-BPA placed on the USFS the burden of either removing any solid waste

captured as a result of the weed washing efforts or designating an appropriate disposal site.

Exhibit A at 28 (“The Government will . . . [r]emove solid waste or designate an appropriate

disposal site.”). The solid waste that is typically captured during weed washing work is

composed of non-hazardous mud, soil, small particulate matter, and seeds from weeds and

other plants that fall from the undercarriages of the firefighting vehicles during the washing

process. Declaration of David V. Haston ¶ 9 (Jan. 20, 2017); Declaration of Kyah LaPorta

¶ 11 (Jan. 25, 2017) (LaPorta Declaration); Declaration of Jan Williams ¶ 6 (Jan. 23, 2017)

(Williams Declaration). It was Mr. Orr’s obligation to gather any solid waste and package

it, with appropriate labels, in transportable containment devices:

The Contractor shall . . . [c]apture, package and label solid waste in secure,

easily transportable containment packages/devices, approved by the

government representative at the incident, and place them at a location

specified by the government. Containers/packages of solid waste shall weigh

no more than 50 lbs each.

Exhibit A at 28-29.

The I-BPA expressly precluded the contractor from disposing of solid waste on his

own unless and until the Government had designated an acceptable disposal site:

The Contractor shall not:

Dispose of solid waste unless an acceptable disposal site is designated by the

government for the waste to be disposed of; otherwise this is the responsibility

of the government (The intention is to ensure proper disposal).

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Exhibit A at 29; see id. at 29 (I-BPA section D.2.1.1(a)(6): “Solid waste shall be disposed

of by the host agency unless an appropriate disposal site has been identified by the

government.”). Once the agency identified an appropriate disposal site, it became the

contractor’s responsibility to “dispose of the solid waste at this designated site.” Id. at 29-30.

The I-BPA provided that, if and when Mr. Orr accepted a resource order that the

USFS had issued, the USFS would soon thereafter give him, among other things, a resource

order number, the name of the incident, the date and time that he needed to report to the

incident, and an “[i]ncident contact phone number for further information.” Exhibit A at

32-33. It also indicated that “[t]he Incident Commander or responsible Government

Representative is authorized to administer the technical aspects of this agreement.” Id. at 28.

Under a clause in the I-BPA titled “Payments,” the USFS indicated that the host

agency for each incident would be responsible for payment to the contractor, based upon the

amount of time the “resource” was away from its point of hire:

The time under hire shall start at the time the resource begins traveling to the

incident after being ordered by the Government, and end at the estimated time

of arrival back to the point of hire after being released, except as provided in

[a provision not applicable here].

Exhibit A at 40. An appendix incorporated into the I-BPA defined the term “resource” as

“[e]quipment, personnel, supplies, or a service used to support incidents.” Id. at 54. The

term “point of hire” was defined as “the resource location (City, State) the vendor designates

in its offer.” Id. Mr. Orr’s point of hire was identified in the I-BPA as Salmon, Idaho.

The “Payments” clause also defined the manner in which Mr. Orr would be

compensated for supplying weed washing equipment and personnel:

Payment will be at rates specified and, except as provided in [a provision not

applicable here], shall be in accordance with the following:

(a)

On-Shift includes time worked, time that resource is held or directed to

be in a state of readiness, and compensable travel (resource traveling under its

own power) that has a specific start and ending time.

(b)

Daily Rate – Payment will be made on basis of calendar days (0001 2400). For fractional days at the beginning and ending of time under hire,

payment will be based on 50 percent of the Daily Rate for periods less than

8 hours.

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5

Id. at 40-41. That clause also provided that “[t]he vendor will be paid for travel to and from

the incident from the equipment City and State they designated in their offer,” but that the

“[v]endor must meet date and time needed.” Id. at 41. It further provided that “[l]ump-sum

payment will normally be processed at the end of the emergency assignment,” although

“partial payment may be authorized as approved by the incident agency.” Id. “Payment for

each calendar day” was to “be made for actual units ordered and performed under Daily

rates.” Id.

The I-BPA established an invoicing process that the contractor was to follow to

receive payment. The invoicing clause provided that, “[a]fter each operational period

worked, time will be verified and approved by the Government Agent responsible for

ordering and/or directing use [of] the resource.” Exhibit A at 42. After both the Government

and the contractor verify the hours worked, “[t]he Finance Unit or designated representative

will receive [the] vendor[’]s commercial invoices and documents providing itemized

breakdown charges” and “will validate [them] with shift tickets, review, sign, and submit to

the payment center.” Id. at 42-43. “When the resource is released to return to the Designated

Dispatch Point (DDP), the Finance Unit will sign commercial invoices and submit them to

the payment center.” Id. at 43. “The incident will [then] submit a payment package

including all signed originals, including a detailed invoice that supports each day[’]s activity”

and other documentation, “to the designated payment office.” Id.

The I-BPA incorporated by reference FAR 52.212-4, Contract Terms and Conditions

– Commercial Items, Exhibit A at 23, which provided that “[c]hanges in the terms and

conditions of this contract may be made only by written agreement of the parties.” 48 CFR

52.212-4(c) (2013).

II.

The Bobcat Fire Resource Order

On August 20, 2015, the Central Idaho Interagency Fire Center placed resource order

no. E-60 under Mr. Orr’s I-BPA for a weed washing unit for the Bobcat fire outside Salmon,

Idaho. Exhibit B at 79. Mr. Orr accepted the order. The agency indicated on the resource

order that the incident site at which the equipment was needed was a driving distance of

7.1 miles from Salmon. Id. On the resource order was a telephone number for the Central

Idaho Interagency Dispatch. Id. The dispatch center provided assistance seven days a week

from mid-June to mid-October 2015, and an on-call dispatcher was available twenty-four

hours a day, seven days a week, during that period to provide guidance and assistance to

vendors. Declaration of James Tucker ¶ 6 (Jan. 21, 2017); Williams Declaration ¶ 5.

CBCA 5299

III.

6

Performance Under the Resource Order

Mr. Orr arrived at the incident site on August 21, 2015, to set up his weed washing

equipment. During that set-up, the lead on-site resource advisor, who was an employee not

of the USFS but of the Department of the Interior’s Bureau of Land Management (BLM),

informed Mr. Orr that solid waste material was “usually double bagged and taken to the local

landfill.” Declaration of James Townley ¶ 3 (Jan. 20, 2017). There was an initial dispute

upon Mr. Orr’s arrival about whether he had set up the equipment properly in accordance

with I-BPA requirements, and he was required to relocate his equipment. Exhibit D at

140-44. It was not until the next day, August 22, 2015, that Mr. Orr, assisted by three

employees (William D. Maupin, Paul Fisher, and Luther Phillips), was ready to perform the

work required by the resource order. Exhibit D at 180. During pre-inspection of Mr. Orr’s

weed washing unit on August 22, 2015, Ms. Kyah LaPorta, the USFS representative assigned

as the incident manager for the E-60 Bobcat fire incident site, informed Mr. Orr that he did

not have, as required under the I-BPA, a method in place to deposit and label solid waste and

that he needed to correct that deficiency. Exhibit A at 29; Exhibit D at 135, 140.

Nevertheless, she and her on-site trainer, Mr. Larry Sinclair, allowed work under the resource

order to begin, and Mr. Orr and his employees completed the assignment on August 25,

2017.

Amongst her many other job assignments, Ms. LaPorta was responsible for

coordinating the removal of any liquid and solid waste collected as a result of the work

performed under the E-60 Bobcat fire resource order and/or designating an appropriate

disposal site. LaPorta Declaration ¶ 3. The BLM on-site resource advisor suggested that Ms.

LaPorta contact a local contractor, Pep’s Septic Plumbing, LLC (Pep’s), to assist in disposing

of both liquid and solid waste from contractors’ weed washing stations. Pep’s, which

specializes in septic tank cleaning and pumping, was listed in the Virtual Incident

Procurement Program (VIPR) as a vendor capable of providing firefighting incident support,

and it had been dispatched to the Bobcat fire on August 18, 2015, to service port-a-potties

and wash stations on a daily basis. Declaration of Ed Peterson ¶¶ 2-3 (Jan. 21, 2017)

(Peterson Declaration).

On the morning of August 24, 2015, Ms. LaPorta asked Ed Peterson, the owner of

Pep’s, to collect the waste generated from Mr. Orr’s weed wash station and dispose of it at

a site that the BLM resource advisor had designated. LaPorta Declaration ¶ 8. It appears

from the record that there was a slight misunderstanding between Ms. LaPorta and Mr.

Peterson about the scope of Ms. LaPorta’s request. Ms. LaPorta’s records indicate that she

verbally asked Mr. Peterson to take care of both the liquid and solid waste at Mr. Orr’s work

site. In the fast-paced atmosphere associated with efforts to suppress an active fire at an

incident site, though, the direction as Mr. Peterson understood it (in line with the type of

CBCA 5299

7

work that his business normally performs) was to remove the liquid waste. Peterson

Declaration ¶ 3. Mr. Peterson, who was demobilizing from the Bobcat fire site that morning

to move immediately to work another fire incident (the Elevenmile fire) at Challis, Idaho,

went to Mr. Orr’s work area on the afternoon of August 24 after completing some other work

in the area and cleaned out the liquid waste. Ms. LaPorta was attending to other duties and

was not at the site of Mr. Orr’s equipment when Pep’s came to remove the waste, but she had

informed Mr. Orr earlier that day that Pep’s would take both his liquid and solid waste while

restating the importance of having Mr. Orr properly label the solid waste. LaPorta

Declaration ¶ 8. When Mr. Peterson arrived to remove waste from Mr. Orr’s equipment, no

one (including Mr. Orr) said anything about Pep’s taking solid waste, and Mr. Peterson did

not see any such waste. Peterson Declaration ¶ 3. Mr. Peterson disposed of the liquid waste

at an approved water treatment plant and immediately remobilized at the Elevenmile fire.

Id. ¶¶ 3-4.

On the morning of August 25, 2015, it was announced that the entire Bobcat fire

incident management team would be released from the Bobcat fire at 5 p.m. that day for

reassignment to the Elevenmile fire. LaPorta Declaration ¶ 9. As part of her overall effort

to wrap up activities at the Bobcat fire site, Ms. LaPorta wanted to close out Mr. Orr’s weed

washing unit resource order and release his equipment before she had to move to the

Elevenmile fire incident site. She went to Mr. Orr’s weed washing station that afternoon to

discover that the solid waste material was still on the site, inside a black plastic bag in a

container that Mr. Orr had not labeled. Id. Because of difficulties in dealing with additional

issues associated with closing out Mr. Orr’s resource order unrelated to the solid waste

disposal issue, as well as her other close-out responsibilities at the Bobcat fire incident site,

Ms. LaPorta was unable to complete the Orr resource order close-out before she had to depart

for the Elevenmile fire site. Id. ¶¶ 9-10. As she was departing the Bobcat fire site, Ms.

LaPorta handed over her remaining duties, including coordination for the disposal of the

weed washing waste materials, to Mr. Sinclair, who was the USFS fleet manager for the

Salmon-Challis National Forest. Id. ¶ 10. Ms. LaPorta provided Mr. Sinclair with Mr.

Peterson’s business card and asked him to contact Mr. Peterson to have Pep’s remove the Orr

weed washing solid waste materials. Id.

At approximately 4:30 p.m. on August 25, 2015, while Mr. Orr and his employees

were packing up at the Bobcat fire site, Mr. Orr asked Mr. Sinclair what to do with the solid

waste. Appellant’s Submission at 2 (Dec. 1, 2016); Declaration of William D. Maupin, Paul

Fisher, & Luther Phillips at 1 (Mar. 24, 2017) (Employees Declaration). By this point in

time, Pep’s, which Ms. LaPorta thought she had assigned to take Mr. Orr’s solid waste, had

already moved to the Elevenmile fire, rendering it unavailable to take the waste. One of Mr.

Orr’s employees asked Mr. Sinclair whether he should load the bags of solid waste that had

been captured – bags of mud, seeds, and small particulate matter – into Mr. Sinclair’s pickup

CBCA 5299

8

truck.3 Declaration of William D. Maupin at 1 (Mar. 21, 2017) (Maupin Declaration). Mr.

Orr alleges that, after Mr. Sinclair allegedly said that he did not want the waste in his pickup

truck, Mr. Sinclair told Mr. Orr to “wait a second,” made a short telephone call, and then told

Mr. Orr to “take [the solid waste] to the SO,” meaning the USFS’s Salmon-Challis National

Forest Supervisor’s Office (also known as the Salmon Office) in Salmon, Idaho. Appellant’s

Submission at 2 (Dec. 1, 2016). Mr. Orr’s statement is corroborated by declarations from

Mr. Orr’s three employees (William D. Maupin, Paul Fisher, and Luther Phillips), all of

whom aver that they were present during the conversation between Mr. Orr and Mr. Sinclair.

For his part, Mr. Sinclair, in his declaration, asserts that the allegation “is unequivocally and

blatantly false and [that he] vehemently den[ies] having ever said anything of the kind!”

Declaration of Larry T. Sinclair ¶ 4 (Jan. 25, 2017). Mr. Sinclair’s statement is supported

by Mr. Orr’s original submission to the contracting officer dated January 21, 2016, in which

Mr. Orr asserted that, when demobilizing from the Bobcat site, he was “instructed to remove

the solid waste from the site but had no instruction as to where to dispose of it.” Exhibit C

at 121.

Whatever the direction (or lack thereof) for solid waste disposal was, it is clear that

Mr. Sinclair released the weed washing equipment from the incident site at approximately

7:15 p.m. on August 25, 2015. Exhibit D at 146-47, 177. Mr. Orr and his employees

immediately removed the weed wash equipment from the Bobcat fire incident site. Mr. Orr’s

employees loaded the solid waste into the back of Mr. Orr’s 2012 Dodge Ram pickup truck,

and Mr. Orr departed the incident site in his truck.

IV.

Execution of a Release

On the next day, August 26, 2015, Mr. Orr either returned to the Bobcat fire incident

site or went to the Salmon Office – the record does not make clear which – to close out his

3

The parties argue in their briefs at length about the amount of solid waste that was

allegedly captured. Mr. Orr avers that the solid waste material was contained in seven bags

weighing 350 pounds. See Appellant’s Submission at 2 (Dec. 1, 2016); Employees

Declaration at 1. The USFS has submitted several declarations indicating that it would have

been impossible for Mr. Orr to have collected that much solid waste in four days of weed

washing and that, at most, the waste filled a “five gallon bucket.” See, e.g., LaPorta

Declaration ¶ 11. We need not resolve this factual dispute because the specific amount of

solid waste that Mr. Orr captured is irrelevant to the resolution of this appeal. Although both

parties believe that this factual dispute needs to be resolved as a matter of principle, it is not

the Board’s function to resolve disputes that ultimately have no effect on the monetary issues

before the Board. See Octagon Process Inc., GSBCA 1004, 1963 WL 899 (Oct. 25, 1963).

CBCA 5299

9

resource order. Declaration of Thomas R. Geiser ¶ 3 (Sept. 28, 2016) (Geiser Declaration).

Under the invoicing clause of the I-BPA, to obtain payment from the USFS, Mr. Orr would

have to have presented documentation showing the length of his work on the site and that he

had been released from the project, although the record here is devoid of any evidence about

what Mr. Orr presented to obtain payment. The USFS receiving officer assigned to close out

various resource orders, Thomas R. Geiser, prepared a draft invoice (on Optional Form 286)

indicating that Mr. Orr had worked on the order from August 22 through 25, 2015, and was

entitled to payment at daily rates totaling $5860. See Exhibit D at 180; Geiser Declaration

¶ 4. Mr. Geiser asked Mr. Orr to review the draft invoice and to make sure that there were

no errors so that payment could be expedited. Geiser Declaration ¶ 4. The invoice contained

the following pre-printed release language:

Contract Release For And In Consideration Of Receipt Of Payment In The

Amount Shown On “Net Amount Due” Line 28 [$5860]. Contractor Hereby

Releases The Government From Any And All Claims Arising Under This

Agreement Except As Reserved In “Remarks” Block 22.

Exhibit D at 180. In block 22, titled “Remarks,” was the pre-printed word “Final,” and Mr.

Geiser handwrote the words “No Damage No Claims” in block 22. Id.

Mr. Orr reviewed the draft invoice, with the words “No Damage No Claims” on it,

and signed it. As we held in our October 18, 2016, decision, Mr. Orr did not sign the release

under duress. Sylvan B. Orr, 16-1 BCA at 177,925-27. Neither before nor after signing the

invoice and release did Mr. Orr mention to Mr. Geiser that there was an outstanding issue

about disposing of solid waste.

V.

Solid Waste Disposal Efforts

It is unclear from the record whether Mr. Orr signed the invoice containing the release

before or after he first attempted to deliver solid waste to the Salmon Office. Either way, Mr.

Orr alleges that, beginning August 26 and continuing through August 31, he continually

drove his 2012 Dodge Ram pickup truck to and from the Salmon Office to try to find a way

to dispose of the solid waste and that his employee, Mr. Maupin, accompanied him for four

of those six days. Appellant’s Submission at 2-3 (Dec. 1, 2016); Exhibit D at 163. He alleges

that, on the first visit on August 26, Mr. Sinclair was at the Salmon Office and declared that

he “did not have time” to deal with Mr. Orr. Exhibit D at 163. Mr. Orr apparently kept the

solid waste in his truck and took it home with him. During each of his six daily trips to the

Salmon Office, Mr. Orr allegedly asked various individuals – random USFS or BLM

employees who were stationed in the Salmon Office (including a BLM temporary hire who

happened to be walking by, to whom Mr. Orr talked for a large part of a day), none of whom

CBCA 5299

10

had any responsibility for Mr. Orr’s resource order – about solid waste disposal, but none of

them knew how to handle or dispose of Mr. Orr’s waste. Appellant’s Submission at 3;

Maupin Declaration at 1.

On August 31, 2015, Mr. Orr received a telephone call at approximately 9:00 a.m.

from Paul Chase, a USFS employee working out of the Salmon Office, telling him that Mr.

Chase could accept the solid waste. Exhibit D at 163. Mr. Orr delivered the solid waste

packages to the Salmon Office and received a receipt on a pre-printed card titled “Emergency

Equipment Shift Ticket,” signed by Mr. Chase. Exhibit D at 163, 166.

VI.

Claim Submission and Appeal

On September 25, 2015, as supplemented on January 21, 2016, Mr. Orr submitted a

claim to the contracting officer seeking, among other things, $8790 for six days of trying to

deliver solid waste from August 26 to 31, 2016. Exhibit C at 81-119, 121-22. Mr. Orr

calculated that $8790 amount by multiplying the daily rate for the E-60 weed washing station

of $1465 by six. Exhibit C at 121-22. On March 18, 2016, the USFS contracting officer

issued a decision denying all of Mr. Orr’s claims, including his solid waste disposal claim,

finding the solid waste claim barred by the release that he had signed. Exhibit E at 199.

On April 26, 2016, Mr. Orr appealed the contracting officer’s decision to the Board.

By decision dated October 18, 2016, we dismissed virtually all of Mr. Orr’s appeal, but found

that the USFS had not established, based upon the record before us at that time, that the

release necessarily barred Mr. Orr’s request for compensation for post-performance delays

in solid waste disposal. Sylvan B. Orr, 16-1 BCA at 177,928. The parties subsequently

requested that we decide the solid waste disposal issue on the basis of the administrative

record pursuant to CBCA Rule 19. After the parties submitted substantial additional

evidence and briefing, we closed the record on May 31, 2017.

Discussion

I.

Standard of Review

The parties are entitled, under CBCA Rule 19, to include in the written record “(1) any

relevant documents or other tangible things they wish the Board to admit into evidence;

(2) affidavits, depositions, and other discovery materials that set forth relevant evidence; and

(3) briefs or memoranda of law that explain each party’s positions and defenses.” 1-A

Construction & Fire, LLP v. Department of Agriculture, CBCA 2693, 15-1 BCA ¶ 35,913,

at 175,551 (citing 48 CFR 6101.19(a)), appeal dismissed, No. 15-1623 (Fed. Cir. Jan. 28,

2016). Based on the parties’ submissions, the Board is authorized to make findings of fact,

CBCA 5299

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even if such findings require “credibility determinations on a cold [paper] record, without the

benefit of questioning the persons involved,” and can decide issues of law based on those

factual findings. Bryant Co., GSBCA 6299, 83-1 BCA ¶ 16,487, at 81,967.

Submission on the record under Rule 19 “does not alter the rules as to burden of

proof” or “relieve the parties from the necessity of proving the facts supporting their

allegations or defenses.” Raimonde Drilling Corp., ENGBCA 5107, 86-3 BCA ¶ 19,282, at

97,488 (discussing Corps of Engineers Board of Contract Appeals’ rule similar to CBCA

Rule 19). “‘While [the Board] can make inferences from th[e] evidence and either accept

or deny the probative value of documents, statements or other extrinsic evidence, in order for

us to find for a party, that party’s evidence must establish,’ by a preponderance of the

evidence, ‘that it is entitled to relief.’” 1-A Construction, 15-1 BCA at 175,551 (quoting

Schoenfeld Associates, Inc., VABCA 2104, et al., 87-1 BCA ¶ 19,648, at 99,472).

Because Mr. Orr is representing himself in this appeal, we have given him “greater

procedural latitude,” as a pro se appellant, “than we give to parties represented by lawyers.”

1-A Construction, 15-1 BCA at 175,551-52 (quoting Greenlee Construction, Inc. v. General

Services Administration, CBCA 416, 07-1 BCA ¶ 33,514, at 166,062). “Nevertheless, ‘this

more lenient standard for interpreting pleadings does not change a pro se litigant’s burden

of proof or our weighing of the factual record.’” Id. (quoting House of Joy Transitional

Programs v. Social Security Administration, CBCA 2535, 12-1 BCA ¶ 34,991, at 171,975).

II.

The Release

In our decision of October 18, 2016, we dismissed that portion of Mr. Orr’s claim

seeking additional monetary compensation for work on August 21, 2015, which pre-dated

his execution of a release on August 26, 2015. As we held in that decision, “a contractor

who executes a general release is thereafter barred from maintaining a suit for damages or

for additional compensation under the contract based upon events that occurred prior to the

execution of the release.” Sylvan B. Orr, 16-1 BCA at 177,924-25 (quoting B.D. Click Co.

v. United States, 614 F.2d 748, 756 (Ct. Cl. 1980)). We recognized that, “‘[i]f parties intend

to leave some things open and unsettled, their intent so to do should be made manifest’ in the

release itself.” Id. at 177,925 (quoting United States v. William Cramp & Sons Ship &

Engine Building Co., 206 U.S. 118, 128 (1907)). We rejected Mr. Orr’s argument that he had

signed the release under duress, id. at 177,925-27, and applied the release to bar his request

for additional compensation for any pre-release work. Id. at 177,928.

In his complaint, though, Mr. Orr also claimed that he was forced to undertake efforts

from August 26 to 31, 2015, to dispose of solid waste captured during his weed washing

work – after he had finished all other resource order work and after he had signed the release.

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We recognized in our original decision that, “[a]bsent special circumstances, a general

release only serves to preclude those claims ‘based upon events which occurred prior to the

execution of the release.’” Sylvan B. Orr, 16-1 BCA at 177,928 (quoting H.L.C. &

Associates Construction Co. v. United States, 367 F.2d 586, 590 (Ct. Cl. 1966)) (emphasis

added). Mr. Orr appeared to allege that, after release execution, he received confusing

directions about where to dispose of the solid waste that he had captured. The USFS had

presented evidence disputing Mr. Orr’s version of events, but the parties were responding to

a show cause order, precluding us from resolving disputed issues of fact. See id. at 177,931

n.5. Based upon the record developed at that time, we found that the USFS had not

established on undisputed facts that the release barred the solid waste disposal claim. See

Shell Oil Co. v. United States, 751 F.3d 1282, 1297 (Fed. Cir. 2014) (burden of establishing

validity and applicability of release is on the party seeking to enforce it).

The record has now been significantly supplemented with numerous declarations that

explain the events that occurred during and after Mr. Orr’s resource order performance. In

a decision on an administrative record, we do not accept the factual allegations set forth in

the pleadings as true or draw all reasonable inferences in favor of the non-moving party, but

make findings of fact based upon the existing record, even if that evidence is conflicting.

1-A Construction, 15-1 BCA at 175,551. Despite Mr. Orr’s strong desire for us to do so, we

find it unnecessary to decide whether, on August 25, 2015, Mr. Sinclair told Mr. Orr to take

his solid waste to the Salmon Office or, instead, gave him no direction. Regardless of what

Mr. Sinclair said or did not say on August 25, Mr. Orr released his solid waste disposal claim

when he signed a release on August 26, 2015.

Mr. Orr’s current allegation is that Mr. Sinclair told him on August 25, 2015, to take

the solid waste to the Salmon Office for disposal, but gave him no further specifics about the

drop-off. The Salmon Office is a 7.1-mile drive from the location where Mr. Sinclair

allegedly gave the direction, back in the town where Mr. Orr lived and where he presumably

would be heading for the night. The Salmon Office, as the record shows, is not a big

building. All that Mr. Orr had to do was drive there on his way home and drop the solid

waste off. Although Mr. Orr says that he could not have gotten a receipt for the waste if he

simply dropped it off there, nothing in the I-BPA or the resource order indicates any

requirement for a receipt. In fact, in situations like the one here where the agency is trying

to respond to numerous active fires in an area, Mr. Orr’s belief that there needed to be special

procedures in place for dealing with the solid waste is unreasonable. The type of solid waste

at issue here is non-toxic and non-hazardous, composed merely of mud, seeds, some plant

material, and some small particulate matter. With such material, there is no reason for Mr.

Orr to insist upon special procedures for delivery or deposit of his waste. A whole day went

by after Mr. Orr allegedly received his disposal direction before he signed the release, and

he mentioned nothing about solid waste when signing the release. If there was a known

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problem with the direction that Mr. Sinclair had already given, or if Mr. Orr simply had not

gotten around to dealing with the solid waste drop-off, he should have noted an exception

on the release. At the very least, he should have mentioned it to Mr. Geiser of the USFS as

he was signing the release, since Mr. Geiser presumably could have assisted in taking the

waste. Mr. Orr did not do that. Because the allegedly defective direction preceded the

release, and since Mr. Orr should have had time to realize any defects in that direction, Mr.

Orr failed to preserve his claim for solid waste disposal problems by signing the release

without mentioning those problems.

To the extent that, as Mr. Orr originally alleged, Mr. Sinclair failed to give him any

solid waste disposal guidance at the August 25 close-out, Mr. Orr still waived his complaints

about that lack of guidance by signing the release without mentioning the outstanding solid

waste issues. He knew on August 24 that Pep’s was supposed to take his solid waste, but he

said nothing about solid waste when Pep’s came by to take only his liquid waste. He knew

when he signed the release on August 26 that no one had given him solid waste disposal

instructions, but he said nothing. The contract’s payment and invoicing clauses make clear

that, except when the incident agency specifically approves otherwise, there was to be a

single lump-sum payment for all work under the resource order. See, e.g., Exhibit A at 41

(“[l]ump-sum payment will normally be processed at the end of the emergency assignment,”

although “partial payment may be authorized as approved by the incident agency”); id. at 43

(“When the resource is released to return to the Designated Dispatch Point (DDP), the

Finance Unit will sign commercial invoices and submit them to the payment center.”).

Where the I-BPA envisioned a single final payment after completion of all work under a

resource order, Mr. Orr should not have signed an invoice seeking that payment, with a

release in it, without mentioning that he had no disposal instructions for solid waste still in

his possession. His execution of such a release in such circumstances, while saying nothing

about the solid waste, precludes his claim for costs that he subsequently incurred trying to

dispose of that waste.

III.

Mr. Orr’s Entitlement Absent the Release

Even if the release did not bar Mr. Orr’s solid waste disposal claim, we would be

unable to find that Mr. Orr has established his right to any compensation for his August 26

through 31, 2015, efforts to dispose of solid waste.

Initially, we have to reject the USFS’s suggestion that, because of the non-toxic nature

of the solid waste at issue here, Mr. Orr should have just thrown it away in a trash bin

somewhere. The I-BPA, the terms of which were incorporated into Mr. Orr’s resource order,

expressly stated that Mr. Orr was not allowed to dispose of solid waste generated from his

weed washing activities “unless an acceptable disposal site is designated by the government

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for the waste to be disposed of.” Exhibit A at 29. The USFS cannot validly argue that Mr.

Orr should have violated the express requirements of his agreement.

Nevertheless, to the extent that Mr. Sinclair told Mr. Orr to take the solid waste to the

Salmon Office, Mr. Orr has identified no reason that the direction was defective. The

direction that Mr. Sinclair allegedly gave was very general in nature, but the type of solid

waste at issue here is plainly not dangerous. From the record, it is very clear that the Salmon

Office, at least during firefighting operations, by necessity works in a fairly informal “seatof-the-pants” manner. The formalities that Mr. Orr seeks to impose on dropping off his bags

of waste at the Salmon Office are not found in the I-BPA or the resource order, and they are

inconsistent with the firefighting activities that were happening while Mr. Orr was finishing

his Bobcat fire incident work. Based upon the alleged direction from Mr. Sinclair, as Mr.

Orr describes it, there was no reason for him not simply to leave the bags of waste at the

Salmon Office.

To the extent that the USFS failed to provide Mr. Orr with any direction for his solid

waste disposal, we would have to agree that the absence of direction could create a

constructive change to Mr. Orr’s agreement. “A constructive change occurs when a

contractor performs work beyond the contract requirements, without a formal order under the

Changes clause, either due to an informal order from, or through the fault of, the

Government.” Nu-Way Concrete Co. v. Department of Homeland Security, CBCA 1411,

11-1 BCA ¶ 34,636 (2010), at 170,696, aff’d, 449 Fed. App’x 945 (Fed. Cir. 2011). “[I]f the

government was at fault in causing work to be done outside the scope of the contract, . . . [the

appellant] is entitled to an equitable adjustment of price” for the constructive change. LB&B

Associates Inc. v. United States, 91 Fed. Cl. 142, 153 (2010). To the extent that the lack of

direction caused Mr. Orr to spend additional time trying to obtain the USFS’s guidance on

what to do with the solid waste, a compensable constructive change could result.

Nevertheless, in such a situation, the contractor bears the burden of “proving the fact of loss

with certainty, as well as the burden of proving the amount of loss with sufficient certainty

so that the determination of the amount of damages will be more than mere speculation.”

Willems Industries, Inc. v. United States, 295 F.2d 822, 831 (Ct. Cl. 1961).

Mr. Orr says that he spent six days driving to and from the Salmon Office seeking

direction as to what to do with the solid waste and that he is entitled to be paid for six days

of work at the daily rate set forth in his I-BPA as a result. Even if the USFS caused a

constructive change here, that would not be the correct remedy. The daily rate in the I-BPA

was to cover the rental and use of the weed washing equipment that Mr. Orr owned, plus the

services of at least two employees to run the equipment. Mr. Sinclair released the equipment

and the employees on August 25, 2015, and the equipment was immediately removed from

the Bobcat fire incident site and returned to Mr. Orr’s control. Mr. Orr is not entitled to

CBCA 5299

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apply the daily rate for his subsequent days of traveling to and from the Salmon Office when

he had already repossessed the equipment that forms a large basis for that daily rate. The

remedy for a constructive change typically focuses on the increase in costs that the contractor

incurred as a result of the change. Nu-Way Concrete, 11-1 BCA at 170,698.

Further, any costs incurred have to have been reasonable, in accordance with the

contractor’s mitigation obligations in response to a constructive change. A non-breaching

party has an obligation to attempt to mitigate damage following a constructive change, and

it “cannot recover damages for loss that [it] could have avoided by reasonable efforts.”

Indiana Michigan Power Co. v. United States, 422 F.3d 1369, 1375 (Fed. Cir. 2005) (quoting

Robinson v. United States, 305 F.3d 1330, 1333 (Fed. Cir. 2002)) (emphasis in original); see

Restatement (Second) of Contracts § 350 (1981) (“damages are not recoverable for loss that

the injured party could have avoided without undue risk, burden or humiliation”); Midwest

Industrial Painting of Florida, Inc. v. United States, 4 Cl. Ct. 124, 133 (1983) (“a

nonbreaching or injured party must take reasonable steps to avoid incurring damage as a

result of the other party’s action”). If the non-breaching party fails to make any attempt to

mitigate his damages, but instead merely seeks to impose all loss, even if it could have been

avoided, on the breaching party, the non-breaching party will be precluded from recovering

that amount of loss which could have been avoided. Toledo Peoria & Western Railway v.

Metro Waste Systems, 59 F.3d 637, 640 (7th Cir. 1995); Midwest Industrial, 4 Cl. Ct. at 133.

This rule “reflect[s] the policy of encouraging the injured party to attempt to avoid loss.”

Restatement (Second) of Contracts § 350 cmt. a.

Regardless of whether Mr. Orr was directed to take the solid waste to the Salmon

Office or left the Bobcat incident site without any clear designated disposal site, Mr. Orr was

under an obligation to mitigate his damages. Mr. Orr’s decision to drive to the Salmon

Office six days in a row, in his pickup truck, and to spend each day there in an attempt to

dispose of the solid waste was unreasonable. There was a telephone number on his resource

order providing twenty-four-hour-a-day/seven-day-a-week contact coverage for vendors. Mr.

Orr never called it. He also never called Ms. LaPorta, whose telephone number he had, or

any other USFS employee associated with his resource order to attempt to obtain disposal

information. He merely kept going back to the Salmon Office and talked with people who

had nothing to do with his resource order. It is possible that, during these visits, Mr. Orr was

also hoping to pick up some of the Elevenmile fire incident work that was ongoing at that

time, but, if that was an incentive to visit the Salmon Office, it does not justify a failure to

contact potentially knowledgeable individuals by telephone to deal with the solid waste

disposal matter in an efficient manner. The absence of telephonic efforts conflicts with the

obligation to attempt to mitigate damages.

CBCA 5299

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At best, Mr. Orr’s reasonable costs, had there been a constructive change, would have

been (1) his costs associated with telephone calls to an appropriate person or office to get

disposal instructions; (2) vehicle and fuel expenses for the few miles that it would have taken

to drive from his home in Salmon (the point of hire identified in his I-BPA) to the Salmon

Office;4 and (3) any costs that he might have incurred for having to pay an employee to travel

with him to unload the solid waste. Yet, Mr. Orr has placed no evidence about any such

costs in the record – no employee payroll records, no fuel expense record, and no mileage

calculations. We specifically notified Mr. Orr in our orders scheduling briefing on the

parties’ cross-motions on the administrative record and during a telephonic conference call

with the parties during the briefing process that he would need to present evidence regarding

his actual costs incurred as a result of the USFS’s direction (or lack thereof). He put nothing

about costs in the record in response. As stated above, it is the appellant’s burden to prove

his damages with sufficient certainty so that “the determination of the amount . . . will be

more than mere speculation.” Willems Industries, 295 F.2d at 831. Although a board may

sometimes resort to a “jury verdict” award if costs cannot be established with mathematical

precision, such an approach is inappropriate if the appellant has simply not bothered to

submit existing evidence of the increased costs that it suffered or to explain why such

evidence is unavailable. Servicemaster of West Central Georgia, DOT CAB 1096, 80-2

BCA ¶ 14,676, at 72,387. Here, that is the situation we face. We give pro se appellants

some procedural latitude, but not to the extent that it eliminates or reduces their burden of

proof. 1-A Construction, 15-1 BCA at 175,551. Mr. Orr has failed to prove damage as a

result of any delay in the solid waste disposal instruction.

IV.

Bad Faith

Mr. Orr generally complains that the USFS employees have acted in bad faith towards

him. In support of this assertion, he identifies the poor evaluation that he received for

performance under this resource order, which he views as “a record of the hostility” against

him; the fact that the USFS pre-inspection team did not think that his first-day set-up

4

To the extent that Mr. Orr might be asserting that he was traveling back and forth

to the Salmon Office not from his home in Salmon, but from his son’s home in Idaho Falls,

Idaho (a round-trip drive of more than five hours each day), he could not recover those extra

travel costs. His I-BPA indicated his point of hire as Salmon. To the extent that he

unilaterally elected to travel to and from Idaho Falls, rather than Salmon, such travel costs

are not envisioned by his I-BPA. See Western Aviation Maintenance, Inc. v. General

Services Administration, GSBCA 14165, 00-2 BCA ¶ 31,123, at 153,740 (“Breach damages

are recoverable only if, at the time the contract was made, the breaching party had reason to

foresee that such damages were the probable result of a breach.”).

CBCA 5299

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complied with USFS requirements and required him to remobilize his unit in a slightly

different manner and location; representations in early internal USFS email messages from

Mr. Sinclair that could be read as indicating that Mr. Sinclair was not at the Bobcat fire

incident, even though he was; a generalized assertion that Mr. Sinclair was using his position

to sabotage Mr. Orr’s work and to harass Mr. Orr; another USFS employee’s internal report

complaining that Mr. Orr’s equipment was in poor condition and recommending against

using Mr. Orr for future assignments; and disagreements with the USFS’s statements about

how much solid waste can be captured from weed washing. Appellant’s Objection to

Summary Disposition at 14-25 (Mar. 27, 2017); Appellant’s Statement of Genuine Issues at

5 (Mar. 27, 2017).

It requires “well-nigh irrefragable proof” to induce a tribunal to abandon the general

presumption that government officials act in good faith. Kalvar Corp. v. United States,

543 F.2d 1298, 1301-02 (Ct. Cl. 1976) (quoting Knotts v. United States, 121 F. Supp. 630,

631 (Ct. Cl. 1951)). “That ‘irrefragable proof’ has been equated with evidence that the

Government had a specific intent to injure the contractor, an intent that must be shown by

clear and convincing evidence.” 1-A Construction, 15-1 BCA at 175,561 (citation omitted).

“[G]ood faith is presumed unless bad faith is shown.” Torncello v. United States, 681 F.2d

756, 771 (Ct. Cl. 1982). Mr. Orr’s allegations are generally based on supposition and

suspicion, which are insufficient to support a claim for bad faith. 1-A Construction,

15-1 BCA at 175,561. Mr. Orr may disagree with poor assessments of his equipment and

may not like that some USFS employees were frustrated while dealing with him, but those

disagreements do not establish bad faith.

Decision

For the foregoing reasons, those portions of this appeal that were not previously

dismissed are DENIED.

________________________________

HAROLD D. LESTER, JR.

Board Judge

We concur:

____________________________

ALLAN H. GOODMAN

Board Judge

________________________________

MARIAN E. SULLIVAN

Board Judge