CBCA 2397 GRANTED AS TO ENTITLEMENT; CBCA 2427 DENIED: June 18, 2013
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CBCA 2397 GRANTED AS TO ENTITLEMENT; CBCA 2427 DENIED: June 18, 2013
CBCA 2397, 2427
EM LOGGING,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
Tonn K. Petersen and Robert A. Maynard of Perkins Coie LLP, Boise, ID, counsel
for Appellant.
Jennifer T. Newbold, Office of the General Counsel, Department of Agriculture,
Missoula, MT, counsel for Respondent.
Before Board Judges VERGILIO, McCANN (presiding), and STEEL.
Opinion for the Board by Board Judge VERGILIO. Board Judge McCANN dissents in
part.
VERGILIO, Board Judge.
This opinion addresses entitlement under two docketed appeals. On April 19, 2011,
the Board received a notice of appeal, docketed as CBCA 2397, from EM Logging
(purchaser) concerning its timber sale contract, 01-14-01-612773, with the respondent, the
United States Department of Agriculture, Forest Service (agency). This dispute involves the
purchaser’s request for payment of $1050, said to be its costs related to the additional
transportation (out of and back to the forest) and cleaning of a piece of equipment, incurred
after an authorized agency inspector initially deemed the equipment to be acceptably clean.
The Board concludes that the initial inspection was inaccurate and that the equipment was
not acceptably clean; the agency’s errors caused the purchaser to waste efforts in
retransporting the equipment. Accordingly, the additional transportation costs should be
CBCA 2397, 2427
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reimbursed to the purchaser. The costs of cleaning, however, are not to be reimbursed as the
purchaser was obligated to adequately clean equipment.
On May 19, 2011, the Board received a notice of appeal, docketed as CBCA 2427,
from the purchaser disputing the agency’s termination for breach of the underlying contract.
The Termination for Breach clause of the contract permits the contracting officer, with the
concurrence of the Regional Forester, to terminate the contract for breach in the event that
the purchaser has engaged in a pattern of activity that demonstrates flagrant disregard for the
terms and conditions of the contract. The record demonstrates the purchaser’s breach of
various material provisions of the contract: the purchaser used overweight vehicles on a
restricted road, failed to utilize approved haul routes, left vehicles with logs at unapproved
locations while failing to provide notice required under the contract, and hauled materials
over unacceptably plowed roads. Although the purchaser corrected shortcomings related to
plowing, the purchaser continued to violate other contractual provisions despite its
assurances that it would correct the other failings. These violations, not single occurrences,
are material, pertain to the safety and security of the personnel of the purchaser and agency,
as well as the public, and exhibit a flagrant disregard of contractual provisions. The Board
upholds the termination for breach and denies this appeal.
Findings of Fact
1.
With an award date of August 31, 2010, the parties entered into a scaled timber
sale contract (with timber to be weighed upon removal and paid for at contract rates), under
which the purchaser was to construct roads and remove included timber, with an estimated
quantity in excess of 67,000 tons. This Big Steep timber sale was in the Kootenai National
Forest, Rexford Ranger District, Montana. Appeal File at 527, 529.
Unclean Equipment
2.
The contract specifies that the purchaser shall remove all soil, plant parts,
seeds, vegetative matter, or other debris that could contain or hold seeds from off-road
equipment prior to entry on to the sale area. Appeal File at 599 (¶ C6.351#). The purchaser
received approval from an authorized agency inspector that equipment was acceptably clean,
i.e., seed and debris free. Appeal File Supplement, Exhibit 1 at 29. The purchaser
transported the equipment to the sale site. At the sale location, the contracting officer
deemed one piece of equipment not to be acceptable (because of plant debris) and required
the purchaser to remove and clean the equipment. The equipment was not acceptably clean.
Transcript at 28, 42, 69, 270-76, 480-81. The record does not demonstrate that the purchaser
knew at the time the equipment first was delivered to the site that the cleaning had been
inadequate.
CBCA 2397, 2427
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3.
The purchaser transported the equipment out of the forest, cleaned it, and
transported it back. The contractor maintains that it expended six hours total in the roundtrip transportation and five hours rewashing the equipment. Appeal File Supplement, Exhibit
8 at 2. This five hours approximately doubles the time expended in the initial cleaning,
which took between two and three hours. Transcript at 468-70. This amount of time further
supports the conclusion that the initial cleaning was inadequate.
4.
The agency maintains that the initial inspection was performed on other than
that piece of equipment taken to the site. The purchaser contends otherwise, with a
supporting affidavit and testimony from the individual who cleaned the vehicle and loaded
it for transport, and the explanation that the agency inspector never left her vehicle in
performing the inspection (a point not contradicted). The affidavit and testimony of the
individual who washed the equipment and witnessed the inspection are more credible than
that of the inspector regarding whether or not the given piece of equipment had been
inspected. Appeal File Supplement, Exhibit 1 at 57; Transcript at 481, 487, 539-40. The
purchaser brought to the site the equipment that had been inspected and approved as clean,
not a different piece of equipment.
Restricted road and maximum gross vehicle weight
5.
In a general clause, the contract specifies that the purchaser is authorized to use
existing national forest system roads when the Forest Service determines that such use will
not cause damage to the roads or forest resources. Appeal File at 545 (¶ B5.12). The
contract expressly identifies relevant portions of Road 336 Big Creek (a Forest Service
development road) as a road with restrictive limitations: “All vehicles shall comply with
statutory load limits unless a permit from the Forest Service and any necessary State permits
are obtained prior to overload vehicle use.” Appeal File at 510 (amended restrictive road
list), 572 (¶ C5.12#, Use of Roads by Purchaser (6/99), with restricted road list) (clause
C5.12), 701 (map).
6.
The contract does not specify the referenced statutory load limits. Federal
statute generally imposes an 80,000 pound gross vehicle weight limit for vehicles on
interstate roads. 23 U.S.C. § 127 (2006). While the Bridge Gross Weight Formula (with
maximum gross weight dependent upon wheel base and number and configuration of axles)
is a recognized method of calculating maximum weights, as found in the statute and detailed
in regulation, the bridge formula does not increase the 80,000 pound total gross weight
maximum, inclusive of all tolerances. 23 U.S.C. § 127; 23 CFR 658.17(b), (c), (g) (2010).
CBCA 2397, 2427
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7.
Statute directs the Secretary of Agriculture to establish provisions relating to
the use of the national forests. 16 U.S.C. § 551 (2006). Pursuant to the statute, and
implementing regulation, 36 CFR 261.50, .54, an order dated February 24, 1986, issued by
the Forest Supervisor, identifies as a prohibited act on all forest development roads within
the Kootenai National Forest the operation of a vehicle weighing in excess of 80,000 pounds,
gross vehicle weight. Exempt from the order are those with a permit, written agreement, or
contract specifically authorizing the otherwise prohibited act. Appeal File at RE-151. This
purchaser did not possess a permit or written agreement permitting a greater weight; the
contract did not specifically authorize a greater weight. The record contains no superseding
order or indication that this order was no longer in effect. Appeal File at RE-107.
8.
Montana permits trucks to be operated on highways under its jurisdiction with
gross vehicle weights in excess of 80,000 pounds, with the maximum weight determined by
the bridge formula. Montana Code Annotated (MCA) §§ 61-10-107, 61-10-110 (2011).
Montana law recognizes the 80,000 federal gross weight limit, but requires particular
additional fees for vehicles with capacities in excess thereof. MCA § 61-10-201.
9.
By letter dated November 30, 2010, the contracting officer informed the
purchaser of its obligations to comply with statutory load limits and clause C5.12. A truck
and truck and trailer with gross weights of 94,300 and 95,000 pounds, respectively, were
noted as being 14,300 and 15,000 pounds above the legal weight limit. “These weights
exceed the legal allowable weights for the bridges accessing the Big Steep timber sale.”
Appeal File at 738. In letters dated November 30, and December 1 and 2, 2010, the
contracting officer asked the purchaser to explain how it would guarantee that log truck
weights will be at 80,000 pounds or less in accordance with gross vehicle weight
requirements. Appeal File at RE-423, RE-430-31, RE-436-38.
10.
In response, the purchaser indicated that it could legally haul 80,000 pounds
with its trucks, and 84,500 pounds with its trucks and trailers. Further, the purchaser stated
that it could legally haul an additional 10% of these figures because of a state tolerance.
Appeal File at RE-426, RE-445. The record and Montana code do not support the assertion
that the purchaser legally could violate weight maximums, which are inclusive of tolerances.
11.
direction:
In a responding letter dated December 1, 2010, the contracting officer provided
You are required to keep your truck load weights at 80,000 lbs or less for a
normal log truck and at 84,500 lbs (based on ax[le] spacing) for a truck and
mule trail (pup). Exceeding these weights violates the legal load limits for the
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two bridges on the route accessing the Steep Creek timber sale. There is no
10% tolerance above these weights.
Appeal File at 750. The letter also noted that the purchaser had failed to explain how it
would guarantee that the truck log weights will be at 80,000 pounds or less; the purchaser
simply had stated that it would work harder to maintain loads at given weights. The
contracting officer specified: “You either do it, or do not haul. Please explain how you will
guarantee that weights will comply with the contract[.]” Appeal File at 751. A letter dated
December 2, 2010, from the contracting officer to the purchaser is of similar effect with
respect to the weight issue. Appeal File at RE-437.
12.
In a letter dated December 14, 2010, to the purchaser, the contracting officer
specified that he had earlier instructed the purchaser:
“You are required to keep your truck load weights at 80,000 lbs or less for a
normal log truck and at 84,500 lbs (based on ax[le] spacing) for a truck and
mule train (pup). Exceeding these weights violates the legal load limits for the
two bridges on the route accessing the Steep Creek timber sale.” You were
told that you would haul legal loads or your hauling would be suspended.
Appeal File at 132.
13.
In December 2010, the purchaser sought to obtain permits to exceed gross
vehicle weight limits for its log hauling. Appeal File at RE-484. By letter dated
December 22, 2010, the contracting officer denied the request: “The load limits are there to
protect the public’s investment in the roads and bridges that are improvements on the
National Forest. The roads and bridges were designed to handle legal GVWs [gross vehicle
weights].” Appeal File at RE-487.
14.
In a notification of breach dated January 14, 2011, to the purchaser, the
contracting officer identified three trucks and three trucks with trailers with hauls between
December 20, 2010, and January 6, 2011, with gross vehicle weights in excess of 80,000 and
84,500 pounds, respectively. In identifying these instances of breach of the contract, the
letter also stated: “Hauling overweight loads across Forest Service roads and bridges from
the Big Steep Timber Sale area is also in non-compliance with of [sic] Standard Provision
B6.22 Protection of Improvements, due to its impact on National Forest System resources
(bridges) that are rated for legal highway loads.” Also, “Because of the risk of damage to
National Forest bridges and safety concerns related to overweight trucks, you are to provide
the information in Item 1 [including vehicle identities and legal gross vehicle weights as
designated by the Montana Department of Transportation] by January 20, 2011, and trucks
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are to be within legal limits immediately. Failure to comply will result in suspension of
hauling activities immediately.” Appeal File at 182-83.
15.
Between November 15, 2010, and January 21, 2011, the purchaser hauled over
the restricted road, at least 31 times (7 for truck; 24 for truck with trailer) with gross vehicle
weights in excess of 80,000 pounds (all of these truck with trailer weights were also greater
than 84,500 pounds); of these truck with trailer weights, 6 times the weight was in excess of
100,000 pounds. Appeal File at RE-108-11.
16.
On January 20, 2011, a driver hauling logs for the purchaser was charged by
the state with violating the bridge formula in the Montana code (specifically by exceeding
the maximum gross weight allowed for any group of axles). This violation occurred on a
state road, with the purchaser’s truck-trailer combination having a gross vehicle weight of
102,820 pounds. Appeal File at RE-128-29, RE-133. For this violation, the driver was
sentenced and fined. Appeal File at RE-132. An agency incident report, prepared by a
Forest Service law enforcement officer (LEO), related to this occurrence (the haul route
included the restricted Forest Service road) identifies three offenses based on his
contemporaneous observation: under state laws the truck was overweight; hauling
overweight load of logs across Forest Service bridges with weight limits of 80,000 pounds
violated regulation (36 CFR 261.54(d)); and use of a nylon strap wrapper when a cable or
chain wrapper was required under regulation. Appeal File at RE-119-20. The purchaser’s
explanation, that had it lengthened this truck it would have complied with Montana code and
the bridge formula, is not borne out by the facts in the record, as the purchaser has not
demonstrated the potential length of the truck and trailer used in the hauling.
17.
The purchaser’s vehicle registrations, provided to the agency on January 27,
2011, indicate a declared maximum gross vehicle weight for its standard trucks of 100,000
pounds (valid through January 31, 2011 or 2012) and for its trailers of zero pounds. Without
permits, the purchaser was not to haul additional weight on Montana roads. Appeal File at
RE-544-51; MCA § 61-10-233.
Haul route and overnighting trucks
18.
The Route of Haul (10/04) clause of the contract required the purchaser to
provide a map and written explanation of the haul routes it would use to remove timber from
the sale area. Further,
Upon advance written agreement, other haul routes may be approved. All
products removed from Sale Area shall be transported over the designated
routes of haul. Purchaser shall notify Forest Service when a load of products,
CBCA 2397, 2427
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after leaving Sale Area, will be delayed for more than 12 hours in reaching
weighing location.
Appeal File at 608 (¶ C6.849). Use of approved haul routes enabled the agency to better
ensure the accountability of the timber and the safety of the logging operation.
19.
Initially, the purchaser provided with its plan of operations a map highlighting
basically all roads off the site as potential haul routes, as it desired never to be found in
violation of this clause; the purchaser provided no written explanation or plan. The agency
received the plan and map on September 27, 2010. Appeal File at 48-53; Transcript at 602
(the president of the purchaser testified that, because of an incident under a different contract,
“I’ve highlighted all these roads on this map so that wherever I am, I’m never off my haul
route”). The contracting officer rejected such an approach and required a written plan that
was in accordance with the contract requirements. Appeal File at 56 (letter dated Sept. 30,
2010).
20.
Thereafter, by letter dated October 24, 2010, the purchaser provided a written
haul route plan, with a request to be allowed twenty-four, instead of the twelve, hours to
present loads for scaling, so as to keep drivers within regulatory requirements of logging no
more than eleven hours in any twenty-four hour period. Appeal File at 80. By letter dated
November 3, 2010, the contracting officer accepted the proposed haul routes, with a specific
limitation; the contracting officer did not approve hauling to the purchaser’s site in Eureka.
In the letter, the contracting officer also expressly refused to waive the requirement for
notification for delivery of loads beyond twelve hours. Appeal File at 82. Although credited
by the dissent and given dispositive weight, the testimony of the purchaser’s president, in
response to often leading questions as to the dates and sequence of events surrounding the
haul map and written plan, Transcript at 600-02, is contravened by the written record as
noted in these findings.
21.
On December 7, 2010, the purchaser wrote to the contracting officer, stating
that it planned on loading logs so that it would get them to the mill in time (weighing stations
were at mills, which closed in the late afternoon, such that any delay in arrival one day meant
at least a twelve hour delay until the mill reopened) and that it would provide notice in the
event of a delay. Appeal File at 801.
22.
During performance, the purchaser deviated from the designated haul routes
and violated the twelve-hour limitation. The purchaser overnighted trucks at locations not
approved by the agency. Appeal File at 134, 151-52, 218. The purchaser’s testimony that
hauling did not deviate from the haul map is not relevant, given that hauling deviated from
the approved written plan by hauling on a road expressly not approved. Transcript at 607;
CBCA 2397, 2427
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Appeal File at 82. In reference to one incident of overnighting a truck at a location off the
sale site before being weighed, without prior notification and without an approved location,
an agency employee expressed concerns in an agency-internal email message:
This is another example that purchaser is pushing us and expects no action on
our part. We’re way too early in this sale to continue allowing these situations
to continue to occur. With all the warnings purchaser has received regarding
various situations on this sale, he should expect to be breached! Also, [the sale
administrator] and I spoke this a.m. because the Resource Tech at D-1 is out
until Thurs and we need to get trucks input for December statements which we
will run next week, he checked tickets received within the last day or so and
we are still seeing overweight tickets--also breachable.
Appeal File at 151.
Snow plowing
23.
Inspection reports indicate few incidents of unacceptable plowing at the time
hauling was occurring. Appeal File at 326 (November 20, a Saturday, no hauling; some
plowing had been done, but plowing not satisfactory at that time) 325 (November 24, fifteen
to twenty inches of snow; haul route plowed), 327 (November 29, hauling on roads before
plowed; some roads plowed, others not); 329 (December 9, holes not punched in snow berms
along haul route). On December 2, 2010, the purchaser had not adequately plowed roads.
Appeal File at 758, 765. An inspection report dated December 13 notes that a haul route was
properly plowed, with berms plowed off, but that a grader had made only one pass above a
given area on another road. Thereafter, the agency’s inspection reports from December 17
through January 21 indicate that roads were properly plowed (either by expressly so stating
or by silence concerning road conditions). The instances of inadequate plowing or hauling
over unplowed roads are few, but significant as unplowed roads pose a safety hazard. By
mid-December at the latest, the purchaser was properly plowing roads.
Breach of contract clause
24.
The contract contains a standard Termination for Breach clause:
Contracting Officer, with the concurrence of the Regional Forester, may
terminate this contract for breach in the event Purchaser: . . .
CBCA 2397, 2427
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(c)
Has engaged in a pattern of activity that demonstrates flagrant
disregard for the terms of this contract, such as, but not limited to, repeated
suspensions for breach pursuant to B9.3 . . . .
Damages due the United States for termination under this Subsection shall be
determined pursuant to B9.4.
Appeal File at 566-67 (¶ B9.31). The referenced clause B9.3 discusses a purchaser’s breach
of any material provisions of the contract, with the agency providing notice thereof and an
opportunity to remedy the breach, and the agency’s suspension of the purchaser’s operations
under the contract. Appeal File at 566.
25.
By letter dated March 11, 2011, to the purchaser, the contracting officer issued
a notification of termination for breach. The notification specifies that the termination is a
result of repeated and ongoing disregard for the terms of the contract almost from the start
of logging and hauling operations. The termination identifies earlier notifications under the
contract of breach and suspension relating to sanitation and servicing, use of roads, route of
haul, snow removal, and payments not received. Appeal File at 1. The Regional Forester
had concurred in the determination. Appeal File at 6.
26.
The purchaser largely blames the contracting officer and sale administrator for
their insistence that the purchaser comply with contract requirements. The tension between
the parties arose early, as described in an agency-internal email message by the sale
administrator (SA):
[U]nless I can feel safe on this sale, along with knowing the public is safe too,
I will not be the Sale Administrator. Yesterday I had overweight trucks
hauling on half ass plowed roads with their tires falling off. Yes [the
purchaser] is shutdown at this time. But to let him start back up and have
myself as the SA there will need to be actual changes from [the purchaser] and
his crew. He was giv[en] many chances to perform. I will not be a lab rat to
[the purchaser].
Appeal File at 773.
CBCA 2397, 2427
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Discussion
CBCA 2397
The contracting officer acted appropriately in inspecting the equipment at the sale
area; such was in keeping with the contractual direction to prevent the spread of weeds. The
record, which includes photographs of the equipment taken on site at the time of the
inspection by the agency and testimony of those viewing the equipment (including the
contractor’s employee who did the washing), supports the contracting officer’s conclusion
that the equipment was unacceptable. Given the contractor’s unclean equipment, the
contracting officer appropriately issued a notification of breach and did not permit further
performance until the equipment was acceptably cleaned. However, the record does not
demonstrate that the purchaser knew at the time the equipment was delivered to the site that
the cleaning had been inadequate. Contrary to the agency’s assertion, the record fails to
demonstrate that the purchaser’s delivery of the unclean equipment at the start of
performance was a flagrant violation of the contract.
The purchaser’s expenses associated with the transportation to and from the
contractor’s facility for cleaning were caused by the agency’s inappropriate initial acceptance
of the equipment; the costs of cleaning the equipment to an acceptable level were simply in
fulfillment of contractual requirements. The purchaser attributes five hours of time to the
rewash of the machine, which approximately doubles the time spent on the initial cleaning.
This amount of time expended further supports the conclusion that additional cleaning was
required.
CBCA 2427
Factually, the record establishes that the purchaser repeatedly violated contractual
requirements with respect to weight limits (both over the restricted forest service road and
on Montana roads), haul routes, and providing notice of delays in getting to weigh stations.
These amount to blatant and flagrant violations of material contractual provisions, given that
the purchaser had sought, but was denied, deviations, and often was reminded of the
requirements. The purchaser did not carry out its promises of compliance and did not correct
problems over a thirty working day period of notice of breach. The removal of the volume
of timber here at issue would require several hauls over the routes in question. The agency
reasonably sought to enforce compliance with contractual provisions that affected the safety
of the purchaser, agency, and public, and the integrity of the roads and bridges over which
hauling occurred.
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The record establishes weight limits for the roads in question. The purchaser and
dissent fail to recognize the import of the explicit road restriction in the contract, the order
applicable to the roads in the forest, and the various references in the record to the weight
limitation of bridges used on the traveled route. While a better focused presentation and
developed record by the parties would have addressed these portions of the record, the
documents do merit weight as they support the agency’s actions throughout performance.
The contemporaneous incident report by a Forest Service law enforcement officer notes the
80,000 pound weight limit applicable to the route in question, covering a given Forest
Service road and bridges. Although, as the purchaser argues, Montana allows greater
weights, within bridge formula limitations, to travel over its roads, that law does not control
the limitations on the forest development road in question. The purchaser violated Montana
law, as evidenced by the sentence and fine to the driver, and suggested by the hauls with
weights over the 100,000 pound weight identified in the purchaser’s registrations.
The agency bears the burden of proof to support the termination for default. The
agency has more than met its burden of proof. The contracting officer and sale administrator
acted within the terms and conditions of the contract in requiring compliance. The
purchaser’s actions with respect to violating the requirements for load limits, notice of
delays, and haul routes, each independently establish a basis that alone supports the
termination for breach. The Board upholds the termination for breach.
The dissent
Having considered and rejected the views of the dissent as not supported by the
record, a few words are in order, without going into point-by-point details and rebuttals.
First, regarding the maximum weight of vehicles on roads, the contract identifies the road in
question as a restricted road. An agency order establishes the maximum weight at 80,000
pounds. A Forest Service law enforcement officer issued an incident report specific to
performance under this contract; the report reflects this weight limit as being applicable to
the road and bridges in question. The purchaser did not comply with this limit for its trucks
or the slightly greater weight for a truck and trailer specified by the contracting officer. The
purchaser’s views are not determinative in establishing the weight limit on Forest Service
roads and bridges. Second, the permissible haul routes were established by a written plan
that provided specifics as to the purchaser’s highlighted map. The purchaser acknowledges
that it deviated from its written plan; it is not relevant that the purchaser remained on routes
highlighted on its map, given that the map did not establish acceptable routes. Finally, the
testimony of those who observed the equipment at the site and the photographs demonstrate
that the equipment was not acceptably clean. The contracting officer acted appropriately
under the contract in requiring the purchaser to remove the equipment and have it properly
cleaned.
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Decision
The Board GRANTS AS TO ENTITLEMENT the appeal in CBCA 2397; the record
has not closed with respect to quantum. The Board DENIES the appeal in CBCA 2427.
______________________________
JOSEPH A. VERGILIO
Board Judge
I concur:
____________________________
CANDIDA S. STEEL
Board Judge
McCANN, Board Judge, dissenting in part.
I respectfully dissent. The contacting officer terminated the purchaser’s contract
under clause B9.31, indicating that the purchaser “[h]as engaged in a pattern of activity that
demonstrates a flagrant disregard for the terms of the contract . . . .” No such pattern exists.
The Forest Service bears the burden of proof on the issue of the correctness of the
termination. Lisbon Contractors, Inc. v. United States, 828 F.2d 759 (Fed. Cir. 1987). The
Forest Service has not met this burden.
Equipment Cleaning
The majority first addresses the cleaning of the equipment. It finds the purchaser at
fault for bringing dirty equipment to the site, after the contracting officer’s representative had
found it to be clean. The majority finds no fault with the Forest Service for a faulty
inspection, or an incorrect finding of breach, or for shutting down the purchaser’s operations.
It does seem to come close, however, as it states that the Forest Service is liable for the extra
transportation costs for the equipment (back and forth to the site) that must far exceed the
cost of the additional cleaning.
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The majority’s holding that the equipment was not clean is incorrect. Under the
contract clause C6.351, “Purchaser shall employ whatever cleaning methods are necessary
to ensure that Off-Road Equipment is free of noxious weeds. Equipment shall be considered
free of soil, seed and other such debris when visual inspection does not disclose such
material.” The contract requires the Forest Service to make this decision, which it did before
the equipment was transported to the site. Thus, under the contract the equipment was clean.
The Forest Service can re-inspect the equipment. However, if it does, and requires additional
cleaning, that is a change to the contract and the Forest Service must bear all costs.
Restricted road and maximum gross vehicle weight
The Forest Service has consistently asserted in its filings that Montana statute applied
to the hauling of the logs. During the hearing, the contracting officer testified, “A standard
log truck with a five-axle combination under state law is – is 80,000 pounds of gross vehicle
weight.” Transcript at 296. During performance of the contract, the contracting officer
never drew a distinction between gross vehicle weight limits for Forest Service roads and
state roads. They were treated as one and the same. The contracting officer indicated, “All
loads leaving your landings must comply with statutory load limits as determined by the
Montana Department of Transportation.” Appeal File at 183.
Enos Miller, sole proprietor of EM Logging, testified that the Montana Gross Vehicle
Weight (GVW) Chart, Appeal File at 221-23, applied to all roads traveled on this contract.
He further stated that he has referred to this chart for the past twenty-five years of logging
and that he disagreed with the contracting officer’s position, “[b]ecause this chart obviously
proves him wrong.” Transcript at 627. The contracting officer never disputed this statement
at trial, although he was afforded the opportunity. Further, the Forest Service has never
refuted, contradicted, or attempted to modify this statement in its briefing. The Montana
chart shows that there is no blanket 80,000 pound weight limit for log trucks. The Forest
Service has never indicated where it came up with this 80,000 pound limit. It is unclear at
this point whether the Forest Service continues to maintain that an 80,000 pound weight
limits exists.
In its reply brief, the Forest Service indicates, “The notifications of breach for
overweight trucks were based upon the Agency’s reasonable belief that the maximum GVW
for Appellant’s conventional trucks was 80,000 pounds.” Respondent’s Reply Brief at 10.
This is insufficient. Purchaser’s have the right to know what the requirements of a contract
are, not only after trial and briefing, but during performance. That did not happen in this
case. The Forest Service has failed to sustain its burden of proof.
CBCA 2397, 2427
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The purchaser pointed out to the Forest Service that its interpretation of the load limits
was incorrect. In an email message dated January 25, 2011, Enos Miller states:
I received your certified mail on Saturday, January 22, breaching contract
clause C5.12# and requesting information on our trucks and trailers. However,
we are in compliance with contract clause C5.12#. In December we acquired
additional equipment that gives us more axles so the loads you referred to in
your letter do comply with state load limits. I dropped a communication log
off at your office today so you can see my efforts to ascertain what exactly we
are allowed to haul on this configuration. We are legal for up to 99,000
pounds stretched out. We are not in breach of the C5.12#.
Appeal File at 210.
Again on January 26, 2011, Enos Miller writes:
Acquired a three axle pup trailer from TA Trucking in December and in an
effort to determine the legal weight we are allowed to haul, I called the DOT
[Department of Transportation] in Helena and asked for an analysis form to get
the legal weight we are allowed to haul with our six axle configuration. . . . I
received an email back from [DOT officer] Joe [Labrodar] stating we can haul
up to 93,000 pounds, however after a visual inspection, he told driver Dave
Butts we can haul up to 102,000 pounds if we are stretched out.
Appeal File at 215.1
Once again, on January 27, 2011, Enos Miller writes to the contracting officer:
I received your letter dated January 26, 2011 and this email is to correct your
wrong assumption. In paragraph three, you refer to the maximum legal weight
allowed, as our “mule train” that is legal for up to 99,000. The truck that was
ticketed is a log truck, pulling two trailers, for a total of seven axles.
According to the Gross Vehicle Weight Chart I left for you with Pat Potter, a
seven axle combination can haul up to a maximum of 130,580.
1
This appears to be a text message from Enos Miller to the Forest Service, probably
the contracting officer, as that is the individual to whom his email messages were sent. It is
date/time stamped 10-26-11 06:13 RCVD. This document was in the Forest Service records
and made part of the appeal file by the Forest Service.
CBCA 2397, 2427
15
Appeal File at 918.
The majority has found other bases, not previously asserted by either party, which it
relies upon to conclude that the purchaser was hauling overweight trucks, either on Forest
Service roads, Montana state roads, or both. How the weight limits contained in these bases
apply is unclear. Under these various bases the parties would be unable to determine when
a truck was or was not “overweight.”
As support for its conclusion that the purchaser was hauling overweight trucks, the
majority points to the contract clause B5.12, which states: “All vehicles shall comply with
statutory load limits. . . .” The majority then states, “Federal Statute generally imposes an
80,000 pound gross vehicle weight limit on interstate roads. 23 U.S.C. § 127 (2006)” This
statute is inapplicable as purchaser did not haul over interstate roads. The reference to
statutory load limits is to those limits imposed by the State of Montana, not the Federal
Government. In any event, 23 U.S.C. § 127 does not prohibit states from allowing trucks in
excess of 80,000 pounds from traveling on interstate highways within its borders. (It does
deprive them of funds, however, if they do. 23 U.S.C. § 127(a)(1).)
Even if 23 U.S.C. § 127 were applicable to the situation before us, there are
exceptions to the 80,000 pound limit on interstate roads in Montana for vehicles with trailers,
called longer combination vehicles.2
General continuation rule. - A longer combination vehicle may continue to
operate only if the longer combination vehicle configuration type was
authorized by State officials pursuant to State statute or regulation conforming
to this section and in actual lawful operation on a regular or periodic basis
(including seasonal operations) on or before June 1, 1991, or pursuant to
section 335 of the Department of Transportation and Related Agencies
Appropriations Act, 1991 (104 Stat. 2186).
23 U.S.C. § 127 (d)(1)(A). Accordingly, 23 U.S.C. § 127 does not limit all trucks with
trailers to 80,000 pounds. Furthermore, the 80,000 pound limit contained in 23 U.S.C. § 127
is meant to apply to five-axle configurations, not six or seven-axle configurations, which the
purchaser was using.
2
“Longer combination vehicle defined.— For purposes of this section, the term ‘longer
combination vehicle’ means any combination of a truck tractor and 2 or more trailers or
semitrailer which operates on the Interstate System at a gross vehicle weight greater than
80,000 pounds.” 23 U.S.C. § 127(d)(4).
CBCA 2397, 2427
16
The majority next points to an order issued by the Kootenai National Forest supervisor
on February 24, 1986, over twenty-seven years ago. Appeal File at RE-107. This order
states that vehicles operating on Forest Service roads in the Kootenai National Forest are
limited to a GVW of 80,000 pounds. The majority then states that “the record contains no
superseding order or indication that this order was no longer in effect.”
This order has no applicability. The contracting officer never relied on it or cited to
it. In fact, in at least two directives issued by the contracting officer to the purchaser, and
cited in the majority’s decision, the contracting officer cites to a limit of 84,500 pounds for
a vehicle truck (tractor and trailer) plus a pup trailer. This order was not being enforced in
the Kootenai Forest, even if it had not been specifically rescinded by the Forest Supervisor.
Since this order was in the record, but not brought to the attention of the Board or relied upon
by the Forest Service, the only logical interpretation is that the Forest Service was aware that
the order was not in effect. Certainly, it does not apply to this contract since the purchaser
was never informed of its existence or applicability. It is incorrect for the majority to raise
the applicability of this order in this case after the trial and briefing, when the Forest Service
specifically declined to do so. Since we have no idea why this order is in the record, we have
no reason to expect or not expect a superseding order, and its absence has no meaning.
The majority next looks to the vehicle registrations found in the record. Again,
neither the contracting officer prior to the appeal, nor the Forest Service in any of its filings
at this Board including its two briefs, ever referred to the vehicle registrations as a reason that
vehicles were overweight. In any event, the majority states, “The purchaser’s vehicle
registrations provided to the agency on January 27, 2011, indicate a declared maximum gross
vehicle weight for its standard trucks of 100,000 pounds . . . and for its trailers of zero
pounds.” The majority continues on to conclude, “Without permits, the purchaser was not
to haul additional weight (over 100,000 pounds) on Montana roads. . . . Montana Code 6110-233.”
This argument is flawed. The registrations appear in the Appeal File at RE-544-51.
The registrations for the trucks do say that their maximum weights are 100,000 pounds and
the pup trailers’ maximum weights are zero pounds. However, what the majority fails to
include in its decision is that the trucks have yearly registrations with beginning dates
(1/27/2011) and ending dates (1/31/2012), and include the declared GVW (100,000), and the
GVW class (Class 1). On the other hand, the trailers have permanent registrations that do
not include the beginning or ending dates, or the GVW, or the class. The majority’s
conclusion then that the total legal weight that can be carried by the trailer is zero pounds and
by a truck (tractor and trailer) plus a pup trailer is 100,000 pounds is wrong.
CBCA 2397, 2427
17
The purpose of the trailer is to carry cargo. The statute dealing with the permanent
registration of trailers divides trailers into two classes, one above 6000 pounds and one below
6000 pounds. Montana Code 61-3-321(3). Obviously, the permanent registration of these
trailers is substantially more than zero and the combined registration weight of the truck and
pup trailer substantially exceeds 100,000 pounds.
In arguing that vehicles were overweight, the majority states that the purchaser
between November 15, 2010, and January 21, 2011:
hauled over the restricted road at least 31 times (7 for truck; 24 for truck with
trailer) with gross vehicle weights in excess of 80,000 (all of these truck with
trailer weights were also greater than 84,500 pounds); of these truck with
trailer weights, 6 times the weight was in excess of 100,000 pounds. Appeal
File at RE-108-11.
What the majority implies here is that these weights exceeded limits of 80,000 pounds,
84,500 pounds, and 100,000 pounds. However, as explained above, such limits do not exist,
and the parties were not aware of them. There is no evidence in the record that any of the
loads referred to were anything other than legal. The Forest Service has demonstrated
nothing to the contrary. The Montana chart, which both parties agree applies, shows that the
five-axle truck weight limit is 91,750 pounds for a truck that is stretched out to seventy feet.
A seven-axle vehicle stretched out to 90 feet reaches its limit at 112,500 pounds.3
The majority focuses on the one time that an EM Logging driver received a ticket for
being overweight. EM Logging does not dispute that this incident did happen.4 The driver,
3
In November 2010, EM Logging owned three fifty-foot long trucks. These trucks
could be stretched out to 70 feet. EM Logging also had five trailers that could be attached
to the trucks, increasing the overall length and number of axles. The overall length could be
stretched out to about ninety feet. Transcript at 622-26.
4
The majority’s facts relating to the Forest Service incident report of January 20, 2011,
written by Law Enforcement Officer Helmrick, are misleading, or at least incomplete. The
majority states that the Forest Service’s report relating to this occurrence indicates that
purchaser had been cited for “hauling overweight loads of logs over Forest Service bridges
with weight limits of 80,000 pounds (violating regulation 36 CFR 261.54(d)).” This is true.
However, there is no 80,000 pound weight limit, or any weight limits at all for trucks
traveling on Forest Service roads in 36 CFR 261.54(d). Accordingly, we do not know where
Officer Helmrick came up with his stated 80,000 pound limit.
CBCA 2397, 2427
18
Laverne Miller, testified that he forgot to lengthen the trailer and could have avoided the
ticket had he done so. Transcript at 494. The majority states: “The purchaser’s explanation,
that had it lengthened this truck it would have complied with Montana code and the bridge
formula, is not borne out by the facts in the record, as the purchaser has not demonstrated the
potential length of the truck and trailer used in the hauling.” This is incorrect. The testimony
of the driver is more than sufficient to support the conclusion that the truck and trailer could
have been stretched out. There is no requirement for him to put into the record the actual
potential length of the truck and trailer. The purchaser’s president has testified that all three
of his trucks stretched out to seventy feet.
In summation, the majority’s position that the purchaser violated any load weight
limitation lacks merit. The majority even admits that “Montana permits trucks to be operated
on highways under its jurisdiction with gross vehicle weights in excess of 80,000 pounds,
with the maximum weight determined by the bridge formula.” So, the majority admits that
the contracting officer’s asserted 80,000 pound limit for trucks (tractor and one trailer) is
erroneous. In the same paragraph, the majority makes the statement, “Montana law
recognizes the 80,000 federal gross weight limit, but requires particular additional fees for
vehicles with capacities in excess thereof. MCA § 61-10-201.” It is unclear what point the
majority is trying to make here. In any event, the fact that Montana requires particular
additional fees for vehicles weighing over 80,000 pounds is irrelevant. Montana imposes
increasing fees every 2000 pounds on trucks from 16,000 pounds through 80,000 pounds.
MCA § 61-10- 201.
The purchaser claimed that there existed a ten percent tolerance relating to weight
limitations. In response, the majority states, “The record and Montana code do not support
the assertion that the purchaser legally could violate weight maximums, which are inclusive
of tolerances.” This statement is misleading. Montana statute using the term tolerance
indicates:
61-10-144 Violation of standards – tolerance.
We do know, however, that Officer Helmrick’s report indicates that in December 2010,
he had received information from the contracting officer, Philip Emery, that weight slips for
the Big Steep timber sale showed that loads were as much as 14,000 pounds overweight for
Forest Service roads and for county and state roads. We do not know whether Mr. Emery
told Officer Helmrick that the weight limit for these roads was 80,000 pounds, but it certainly
seems possible.
CBCA 2397, 2427
19
....
(2) The operator of a vehicle or combination of vehicles may move over the
highways to the first open stationary scale or portable scale on an engineered
site, as defined in 61-10-141(4), without incurring the excess weight penalties
set forth in 61-10-145 if the total gross weight of the vehicle or combination
of vehicles does not exceed allowable total gross weight limitations by more
than 10% and if the weight carried by any axle or combination of axles does
not exceed the allowable axle weight limitations by more than 10%. If the
vehicle or combination of vehicles is not in excess of the allowable total gross
or axle weight limitations by more than 10%, the department may issue a
single trip permit for the fee of $10, allowing the vehicle or combination of
vehicles to move over the highways to the first facility where its load can be
safely adjusted or to its destination.
MCA § 61-10-144(2). Thus, Montana does provide special, reduced penalties for weight
overages of ten percent or less. When the weight is less than ten percent over a limit, there
are no excess weight penalties, and for ten dollars an operator can move on to the first
facility, where its load can be safely adjusted. With such treatment placed in the state code,
it would seem that the Forest Service should not be overly concerned when a purchaser’s
truck is less than ten percent overweight.5 The contracting officer indicated in his letter of
December 1, 2010, that he checked with the Montana Department of Transportation and was
told that there was no tolerance. Appeal File at 753-54.
It seems that the majority may be faulting the purchaser for seemingly agreeing that
an 80,000 pound weight limit existed initially, or of not objecting to it quickly enough. Such
faulting would be improper. The contracting officer cannot make up a contract requirement
and have it become binding, just because the purchaser initially agrees with it or does not
immediately dispute it. The requirement must have an independent contractual basis or it is
invalid.
The Forest Service’s and the majority’s position on overweight trucks and trucks with
trailers is incorrect. Under these circumstances, where the parties have agreed that the
Montana GVW chart applies to both Forest Service and Montana state roads, it is
inappropriate for this Board to find otherwise. It is questionable for the majority to impose
5
The majority’s reference to tolerances in this case is misplaced. The unknown
tolerances that the majority is referring to do not include the ten percent tolerance covered
in MCA § 61-10-144.
CBCA 2397, 2427
20
load limits on the roads traveled by the purchaser, limits that were never provided to the
purchaser during performance, and never asserted at trial or in briefing.
Haul route and overnighting trucks
As required by the contract, provision C.849, the purchaser submitted a haul map and
a written general plan for hauling. The majority states that the purchaser initially submitted
a haul map and the contracting officer rejected it, requiring a written plan. This is not so.
The haul map was submitted on September 30, 2010, or just prior to this date. Appeal File
at 56. At this point the contracting officer asked for clarification and a written haul route
plan. Id. The written haul route plan was submitted by letter dated October 24, 2010. The
written haul plan was accepted by the contracting officer by letter of November 3, 2010.
Appeal File at 82. The contracting officer testified that he never rejected the route haul map.
Transcript at 429. The purchaser testified that, since he did not hear anything from the
contracting officer, he believed that the haul map had been approved. Transcript 607.
Highway 93 to Eureka was on the haul map and the purchaser believed that he was
authorized to haul on it. Transcript at 606-07. He did not become aware that he was not so
authorized until he received a notice of breach dated January 14, 2011. Transcript at 606-07;
Appeal File at 185. The actual routes were never finally approved or clarified, and they were
not clarified at trial or in briefing. Accordingly, the Forest Service cannot establish that the
purchaser ever violated the haul routes. The Forest Service has the burden of proof and it
has not satisfied that burden.
The majority cites to the purchaser’s overnighting trucks at locations not approved by
the agency. Initially, the purchaser had requested that it be allowed to overnight trucks, and
the contracting officer refused without stating a reason. As it turned out, it was very difficult
for the purchaser to drive to the mills in one day. Accordingly, he was forced to overnight
trucks on occasion. Obviously, he could not drive back to the site. What was he to do?
Have his drivers drive all night? The Forest Service finally began to realize this. By letter
dated January 15, 2011, Ms. Pat Potter, a supervisory resource specialist and contracting
officer, stated: “If it is so difficult for purchaser to get a load off the sale area and into TRL
mill in 1 day, I believe we need to immediately set up an overnight agreement which is
specific to, for example, Libby where FS and purchaser agree, too as to secure location . . . .”
Appeal File at 151. In fact, the contracting officer did finally propose an overnighting
agreement that was put in registered mail and which the purchaser did not receive until after
it was terminated. Thus, the overnighting of trucks should not be used as a reason to
terminate the purchaser.
CBCA 2397, 2427
21
Snow plowing
The majority refers only to inspection reports and concludes that they indicate few
incidents of unacceptable plowing at the time hauling was occurring. It concludes that “[t]he
instances of inadequate plowing or hauling over unplowed roads are few, but significant as
unplowed roads pose a safety hazard.” The majority here recognizes that the plowing of
snow was done relatively well by the purchaser. However, the majority’s statement that
hauling over unplowed roads is a safety hazzard per se is incorrect. The contract places no
restriction on “hauling over unplowed roads” and the conclusion that all hauling over
unplowed roads is a safety hazzard is incorrect.
In the November 30, 2010, notification for breach and suspension, the contracting
officer indicated that the purchaser had violated provisions C5.316 - Snow Removal, and
B6.33 Safety. The basis for this notice of breach was in part that a road had not been plowed.
Appeal File at 738. Again, there is no requirement in the contract that the roads be kept
plowed at all times regardless of the amount of snow that has fallen, and the purchaser was
in the process of plowing the roads. Transcript at 557-58. Accordingly, there was no
violation of provision C5.316.
Subsequently, the sale administrator inspected the roads for adequacy of plowing a
number of times and found roads unsatisfactory. However, he did not conduct these
inspections soon after the purchaser had notified him that the roads were ready for inspection.
Transcript at 572-75. The contracting officer admitted that the purchaser had been plowing
the roads, but that by the time the Forest Service inspected them, new snow had fallen.
Transcript at 408. The roads are in the snow belt and heavy snow had been falling regularly.
The purchaser’s operations remained suspended until the Forest Service inspected the roads
after they were plowed and before a new snowfall. The Forest Service suspension of the
contract on November 30, 2010, Appeal File at 738, based upon improper snow removal was
improper.
Conclusion
CBCA 2397
I disagree with the majority’s finding that the purchaser was at fault. As required by
the contract, the purchaser cleaned the equipment and notified the Forest Service to come and
inspect it. A representative of the contracting officer inspected the equipment and found it
to be clean. Therefore, under the contract the equipment was clean, and the purchaser
complied with all contract requirements. Subsequently, at the work-site, the contracting
officer found the equipment to be unclean. If the Forest Service inspector did a poor job
CBCA 2397, 2427
22
inspecting the equipment at the initial inspection, it is the Forest Service’s problem, for
which the purchaser should not be penalized. If the Forest Service wanted the equipment recleaned, it must bear all costs.
CBCA 2427
The Forest Service’s actions in this case are puzzling. It found purchaser’s equipment
clean and approved transport to the site. Then it found the equipment dirty and blamed the
purchaser for bringing “unclean” equipment to the site. It imposed an 80,000 pound vehicle
weight limit upon purchaser based upon Montana statute that has no 80,000 pound weight
limit. The contracting officer never has explained where he came up with the 80,000 pound
weight limit. The parties agreed during performance, trial, and briefing that the Montana
GVW chart applied here to Forest Service and state roads. Accordingly, the Forest Service
has waived any argument that any other weight limits apply.
The Forest Service did not establish what the haul routes were, yet it found the
purchaser in violation. Also, it refused to agree to allow the purchaser to overnight trucks
off-site, when the purchaser could not effectively conduct operations without such an
agreement. The Forest Service found the purchaser in violation of clause C5.316 - Snow
Removal when the purchaser was in the middle of plowing snow. It prohibited the purchaser
from conducting operations until the roads were plowed to its satisfaction, without
contractual authority to do so.
The Forest Service has not established that the purchaser “[h]as engaged in a pattern
of activity that demonstrates a flagrant disregard for the terms of the contract” or sustained
its burden of proving that the termination was proper.
_______________________
R. ANTHONY MCCANN
Board Judge
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.