LDG Timber Enterprises, Inc. v. United States

32 Cont. Cas. Fed. 73,681, 8 Cl. Ct. 445, 1985 U.S. Claims LEXIS 952
CourtUnited States Court of Claims
DecidedJuly 3, 1985
DocketNo. 205-82C
StatusPublished
Cited by10 cases

This text of 32 Cont. Cas. Fed. 73,681 (LDG Timber Enterprises, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
LDG Timber Enterprises, Inc. v. United States, 32 Cont. Cas. Fed. 73,681, 8 Cl. Ct. 445, 1985 U.S. Claims LEXIS 952 (cc 1985).

Opinion

OPINION ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

YANNELLO, Judge.

This is a contract case brought pursuant to the Contract Disputes Act, 41 U.S.C. §§ 601 et seq. (1982). The contract in issue was for the salvage sale and logging of timber. Some of the timber in the sale area had been killed or was diseased and [447]*447the chief concern of the contract was to accomplish the removal of this timber.

I. Discussion

A. Background Facts: Contract Clauses

Essentially two classes of timber were the subject of the sale, as defined in paragraph C2.365. The first class of timber was priority I, which was defined as dead or beetle-infested—the type of timber for which salvage removal was the most important. The second class of timber was priority II which, while not already dead or beetle-infested, was not expected to survive to the next cutting season because of disease, low vigor, or mechanical risk. In addition, live or green trees might be designated for logging under certain circumstances. {See, e.g., clause B2.131, Damage by Purchaser; B2.32, Construction Clearing; and other similar clauses.)

The advertisement for the contract contained the following numerical estimates of the quantities of various species of timber anticipated on the job:

Thousand Bd. Feet (MBF)
Ponderosa Pine 250
Sugar Pine 2125
White Fir 125
Other nominal
TOTAL 2500

The government arrived at the stated estimated quantities through various means. The affidavits appended to defendant’s motion, uncontroverted by plaintiff, establish that Forest Service personnel utilized infrared photography of the area about one year before the sale, a walk-through by the district staff and then a helicopter inspection at about the time of the sale, when preparing the estimates in the advertisement.1

Several provisions addressed the nature of the numerical estimates of timber volume.2 For example, the advertisement contained the following language:

The quality, size, and age class of the timber are estimates based on detailed cruise information on file and available for inspection at the Forest Service offices listed in the advertisement. INFORMATION LISTED HEREIN IS MADE AVAILABLE WITH THE UNDERSTANDING THAT VALUES SHOWN ARE NOT ESTIMATES OF A PURCHASER’S OWN RECOVERY AND ARE NOT A PART OF THE TIMBER SALE CONTRACT.

In addition, the advertisement contained the following language, to be signed and acknowledged by the bidders in returning their bids:

BIDDERS ACKNOWLEDGE THAT FOREST SERVICE ESTIMATES OF COSTS AND TIMBER VOLUMES ARE NOT GUARANTEED AND THAT THE FOREST SERVICE GRANTS NO WARRANTY, EITHER EXPRESS OR IMPLIED, OF THEIR ACCURACY. BIDDER EXPRESSLY DISCLAIMS ANY RELIANCE ON FOREST SERVICE COST ESTIMATES AND TIMBER VOLUME ESTIMATES IN SUBMITTING THIS BID.

This was echoed in contract clause B2.4:

... [T]he estimated volumes stated in [the contract] are not to be construed as guarantees or limitations of the timber to be designated for cutting under the terms of this contract.

Finally, the advertisement further alerted bidders to the need for site inspection as follows:

[448]*448... bidders are urged to examine the timber sale area and make their own recovery estimates.

Indeed, plaintiff’s president, Lloyd George, conducted a two-day examination of the sale area prior to submitting his bid. During this on-site inspection, plaintiff cruised over 700 acres actually counting and estimating the volume of timber (particularly fir) and also noting the quality of timber. (Deposition of George at pages 12-13.)

Only two additional provisions of the contract bear on the estimated quantities, and they might be referred to as “Variation in Estimated Quantities” clauses. The first, paragraph C2.41 entitled Adjustment for Quantity Deficit, addressed the possibility that designated priority I timber might yield less than 75 percent of the total estimated quantity (i.e., 75 percent of 2500 MBF or 1875 MBF). This clause provided that in that event the government would, upon the contractor’s request, mark priority II timber for logging so as to make up the difference and, with the priority I timber, yield that 75 percent of the total estimated quantity (i.e., 1875 MBF).

The second clause, paragraph C2.42, entitled Adjustment for Excess Quantity, addressed the possibility that, taking into account the various sale areas, the sale quantity might be more than 150 percent of the total estimated quantity (i.e., 150 percent of 2500 MBF or 3750 MFB). This clause, too, provided for adjustments in that event, particularly in designations of sale areas.

B. Background: Performance; Disputes

During contract performance, two areas of disagreement arose. Both of these controversies concerned the amount of timber actually logged as contrasted with contract estimates. The actual logging was as follows:

Estimate (MBF) Actual (MBF)
Ponderosa Pine 250 256
Sugar Pine 2125 899
White Fir 125 268
Other na 24
TOTAL 2500 1477

First, plaintiff alleged that certain fir trees were marked as priority I timber— which must be logged—when in fact the timber met the definition of priority II timber—which was to be marked and logged only as requested by the contractor to yield the 75 percent minimum of the total estimated quantities. As a result, alleged plaintiff, it had logged more fir timber (268 MBF) than was originally estimated in the contract (125 MBF).

Second, plaintiff disputed logging of priority II timber not in direct proportion to the estimates for individual species. Plaintiff, for example, protested logging more fir and less pine, proportionately, than was estimated in the contract. Plaintiff believed that if only 75 percent of the total estimated quantities were to be realized, there should be a proportional adjustment in each species, i.e., 75 percent of fir, 75 percent of pine, and so forth.

The reasons for underlogging of pine are not altogether clear on the facts now before the court.3 Plaintiff did request that priority II timber, including pine, be marked for cutting. The government was prepared to designate some priority II timber of various species, and, although it denied any contractual obligation to do so, indicated a willingness to strive to select such designations in proportion to specie estimates in the contract.

Dispute between the parties as to actual designations continued. Accordingly, the government allowed plaintiff to choose its own area for marking of this priority II [449]*449timber.

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Bluebook (online)
32 Cont. Cas. Fed. 73,681, 8 Cl. Ct. 445, 1985 U.S. Claims LEXIS 952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ldg-timber-enterprises-inc-v-united-states-cc-1985.