Free Motion for Partial Summary Judgment - District Court of Federal Claims - federal

Case 1:87-cv-00435-EGB

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APPENDIX TO DEFENDANT'S MOTION FOR S~ARY JUDGMENT IN GATEWAY LUMBER CO. v. UNITEDSTATES. NO. 87-435C

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INDEX TO APPENDLX Document Forest Service Advertisement for the Eldred Creek Sale .................... Prospectus for the Eldred Creek Sale ................................... Forest Se~wice "APPRAISAL SUMMARY" dated Janual T 22, 1979, for the original Eldred Creek Sale ..................................... Forest Service "REPORT TIMBER OF SALE"dated March 14, 1979, for the original Eldred Creek Sale ..................................... Excerpts fi'om Gateway's Eldred Creek Timber Sale Contract ................ May3, 1982 letter to Gateway adjusting contract termination date ............. May20, 1983 letter to Gateway adjusting contract temaination date ............ "AGREEMENT TO MODIFY CONTRACT" dated August 16, 1983 ............................................... "AGREEMENTTO EXTEND AND MODIFY TIMBER SALE CONTRACT, dated September 20, 1983 ............................................ December 1985 letter to Gatewayconfirming North Side extension ......... 19, April I8, I986 letter to Gateway advising of contract termination .............. April 9, 1986 Forest Service memorandum confirming decision not to resell ..... Standard Provision B9.4 of Timber Sale Contract .......................... Eldred Creel; DamageAppraisal excerpts, Pa~__~_e 1 2-9

10

11 12-14 15-16 17

18

19-22 23 24 25 26

including "APPRAISAL SU~IMARY". 27-29 30-31 32

Contracting Officer's final decision letter dated August13, 1986 ............... Bill for Collection, dated August 6, 1986 ..................................

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-MONTE CRISTO ELDRED CREEK AD APPEARING IN THE EVERETT HERALD, FEBRUARY 12, 1979.

RoD. T.S.

NATIONAL FOREST TIMBER FOR SALE, MT BAKER-SNOQUALMIE NATIONAL FOREST. ELDRED CREEK SALE, located within T. 30 N., R. 9 E., W.M., surveyed° SEALED BIDS will be received by the District Ranger or his representative at the Verlot Ranger Station, up to and not later than 11:00 AM, local time at place of bid opening~ March 14, 1979 followed immediately by oral bidding for an estimated 5000 M board feet of timber marked or otherwise designated for cutting. The minimum acceptable bid per M board feet is: Western Hemlock and Other Coniferous Species, $126.30; All Species Cedar, $258.78. In addition, there is within the sale area an estimated 200 M board feet of Douglas-fir logs which will be paid for at $250.08 per M board feet. Additional deposit required for slash disposal is $6°38 per M board feet for all species. In addition there is w~thin the sale area an estimated 109 acres of all species logs subject to per acre pricing which will be paid for at $1.83 per acre. Additional deposit required for road maintenance on National Forest roads over the appraised route is $.13 per M board feet for all species logs priced per M board feet~ The contract includes a des_cription of the maintenance work and a breakdown of the per M board foot deposit on a per M board foot per mile basis by roads. In the event that total bid value plus required deposits for this contract exceed one million dollars ($i,000,000) an EEO compliance review will be conducted on the high bidder to determine if the provisions of Executive Order 11246 have been complied with before award can be made. All included Timber, except that not meeting Utilization Standards, is subject to Timber Export and Substitution Restrictions. Bidders are advised that violations of the Timber Export and Substitution Restrictions constitute breach of contract and may result in contract cancellation, refusal to award other timber sales to the violator, and/or debarment or suspension from bidding on future timber sales° The required bid guarantee is $41,000.00. In accordance with the National Forest Management Act of 1976, a bidder qualifying as a small business under the Small Business Act (as amended and the regulations issued thereunder) may elect at the time of sealed bid submission to have Forest Service construct the included Specified Roads. If the bidder so elects, the price paid for the timber shall include the estimated construction cost which is $228,769.00° Such road will be constructed to the design standards and in accordance with drawings and specifications included in the sample contract. Specified Roads, whether constructed by Purchaser or Forest Service, shall be completed by October 31, 1980. If the bidder elects to hate Forest Service construct the roads, Forest Service intends to perform construction by contract. When Forest Service intends to construct the road through a contract, the award of the timber sale will not--be made unless either a satisfactory road construction bid is received, or if Forest Service fails to receive such a bid within 150 days of finding the bidder's offer to be acceptable, bidder agrees to perform road construction~ Applicable Purchaser's Road Credits are $205,420.00. The right to reject any and all bids is reserved. A prospectus and information concerning the timber, the conditions of sale and submission of bids should be obtained from the District Ranger, Verlot Ranger Station, Granite Falls WA 98252 or the Forest Supervisor, 1601 Second AV Building, Seattle 98101

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TIMBER ELDRED CREEK Timber sale

SALE

FROSPECTUS MT Baker-Snoqualmie National Fore;

| Unit or Compartment I GORDON I MT Baker I Working Circle I MONTE CRISTO District

i. INTRODUCTION. This prospec~us is to furnish sufficient information in addition to that contained in the published advertisement to enable prospe tive bidders~to decide whether further investigation of the sale is warran INFORMATION GIVEN HERE OR OTHERWISE PROVIDED IS NOT A PART OF THE CONTRACT UNLESS STATED THEREIN. DETAILED CONDITIONS OF SALE ARE CONTAINED IN THE SAMPLE TIMBER sALE CONTRACT. IN THE EVENT A CONTRADICTION EXISTS BETWEEN THIS PROSPECTUS AND THE SAMPLE CONTRACT THE CONTRACT GOVERNS. Timber Sale Contract, Form 2400- 6, will be used. Sale sample contract shou be inspected before submitting a bid. The appraisal, and other informatiol on the timber, conditions of sale and bidding may be obtained at Forest Sel offices named in the attached advertisement. 2. BIDDING. Sealed bids will be received at the Forest Service offices named in the advertisement followed immediately by oral bidding . Bids mu~ be submitted on prepared forms which may be obtained from the Forest Servic offices named in the advertisement. These forms include instructions for both sealed and oral auction bids as well as for submission of the bid guaJiantee. 3. LOCATION AND AREA. Refer to the attached sale area map and to the samp contract for legal'subdivisions and location of cutting area, acreage of sale, acreage to be cut, etc. THE FOLLOWING GENERAL LOCATION, ROUTES OF ACCESS, ACREAGES AND OTHER SPECIAL LOCATION DATA DO NOT SUPERSEDE SALE AREA MAP OR SA~IPLE CONTRACT. The sale is located in Sections 23, 24, T.30N., R. gE., W.M.; approximately 9 miles east of the Verlot Ranger.Station. The haul routes are via Forest Set' Roads 3055, 3055A, 3055B, 3055Z, 4045 and the Mountain Loop Highway. There are two clearcut units containing 107 acres. In addition there are 2 acres of specified road right-of-way outside the unit boundaries for a total of i0! acres. Harvest is by skyline, highlead, tractor and mobile-yarding systems.

4. VOLUME AND DESCRIPTION OF TI~D_F~ 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 HF~REIN 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. For these reasons bidders are urged to examine the timber.sale area and make their own recovery estimates. : ~ .... R6-2456-48 Me 78)

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Forest Service field estimate of a~le volume and log quality in percent of volume by species,is:

Species

Estimated Volume and Unit of ~|easure M BOARD FEETI

Log Grades IP 2P 3P-SPi P

% IS 2S 3S

Douglas-fir All Species Cedar Western Hemlock and Other Coniferous Species

200

13

21

24

9

27

6

1300

26

4O

34

3700

7

6

58

29

Total sale area is about Approximate age 200+ Avg. Volume per tree. _ . Avg. Diameter of Stand.

138 years. GROSS.

acres.

1.009 26

M bd. ft. Inches

Estimate of Stand Defect.

. .

18 662

Percent

Total number of dead trees to be felled in sale area

In addition, subject

an

estimated acre pricing

~Z09 are

-=~

~ acres

of all the

species sale

logs, area°

to per

included

within

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5. RATES.

See

attached

bid

form.

3

THE MINIMUM ACCEPTABLE BID RATE IS STATED IN THE ATTACHED ADVERTISEMENT AND IS THE ADVERTISED RATE SHOWN ON THE ATTACHED BID FORM. It is based upon pricing procedures provided by the Timber Sale Contract, Form 2400-6.~fhis rate has been established by appraisal as though roads specified by the contract are in place. Applicable purchaser credit up to the amount shown in the advertisement will be credited to purchaser's timber sale account as specified roads are constructed and accepted. Required deposits for road maintenance and slash disposal are stated in the advertisement. Rate redetermination date None work fn a total

- Estimated Knutson-Vandenberg deposit for sale-area'betterment amount of $42,829.00 is included in total timber value. SEE SAMPLE CONTRACT FOR EXPLANATION OF TERMS AND APPLICATION

OF RATES°

6. PERIOD OF CONTRACT. The normal operating_season shall be considered to be between JUNE 1 and OCTOBER 31.o Contract termina£ion date is MARCH 31 r 1983. A gener~l operation plan showing how the purchaser plans to complete sale by the termination date must be approved by Forest Service before _~operations may begin. The Forest Service implemented a new extension policy on July policy applies to this contract. The most important provision is that extensions will normally not be granted unless: i, 1978. of that That policy

(i) Specified roads needed by the Purchaser for removal of all included timber in accordance with his approved plan of operations were constructed and accepted by the Forest Service prior to the applicable road completion date. (Not applicable when Forest Service assumes responsibility for construction of roads). (2) At least 75 percent removed from the sale area. of the advertised volume has been cut and

(3) Operations to date have been in reasonable contract terms and the approved plan of operations.

compliance

with

(4) Contractural requirements, such as snag felling, erosion control, and slash disposal, have been accepted on the area cutover, except for areas where logging is currently in progress. Purchaser's burning of current slash or grass seeding of disturbed areas may be waived as a prerequisite for extension, if weather conditions or other factors have delayed these activities.

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4

7. PAYMENTS.--Payment for timber and related charges will be required in advance of cutting unless purchaser credit is established under or transferred to this contract, or acceptable payment guarantee is provided to permit cutting in advanG~ of payments. Advance payments which the purchaser will be required to make shall be In such amounts as to cover the value of timber estimated to be cut in not less than 30 days and not more than 60 days at the applicable rates for timber and other related charges. Payment requests shall consider the operating plan and past performance of the purchaser. Deposits for cooperative scaling services must be made in advance of furnishing the services. Purchaser credit established under or transferred into this sale may only be applied to timber charges in excess of timber value at base rates. The amount which ~ay be transferred into this sale will be calculated as of .~he date Of award, Effective Purchaser Credit transferred from this sale which later turns out to be ineffective under this contract must be replaced with cash. If a qualified bidder elects t6 have Forest Service construct Specified Roads, the contract will provide for collection of not less than the full estimated cost of the roads stated in the advertisement in addition to Base Rate Value and Required Deposits. For scaled sales the cost will he collected as timber is scaled, at a rate accelerated on 80 percent of the estimated volume. Cash deposits wlll be required when payments for stumpage include less value above Base Rates than is needed to meet the collection schedule. If bidder elects the road option, payment for right-of-way timber subdivisions will be made in accordance with B4.0 payments.

8. PERFORMANCE BOND. A performaace bond will be required. The penal sum of the bond will he i0 percent of the total hid value of the sale rounded up to the nearest 3100 when the total hid value is $i0,000 or less, and rounded up ~ the nearest $i000 when the total bid value exceeds $i0,000. The maxlmumbond be $ .200,000.00 The minimum bond ~rlll not be lower than $ 86,000.00

Purchaser may request a revision in contract language to authorize deferment of payment for timber felled, but not removed, up to the penal sum of the performance bond and to increase the penal sum of the performance bond.

-

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9. SPECIFIED ROADS. See sample contract f~r verification of specific details and information concerning construction specifications. CONSTRUCTION ESTIMATES ARE NOT GUARANTEED AND INFORMAT-ION CONTAINED HEREIN, TOGETHER WITH RELATED MATERIAL, IS MADE AVAILABLE WITH THE UNDERSTANDING THAT COSTS OR QUANTITIES SHOWN ARE ESTIMATES. The following roads are those which Forest Service considers necessary to remove the timber from this sale.

Road Number

Name

Design Class

Approximate Length (Miles)

Purchaser credit Limit

Completion Date

RECONSTRUCTION 3055 ELDRED -CREEK S-10 1.14 $110,580.00 CONSTRUCTION 3055 ELDRED CREEK S-10 0.27 Oct. 31, 19

3055A .ELDRED 3055B 3055Z 4045 ELDRED ELDRED MARTEN

CREEK CREEK CREEK CREEK

S-10 S-10 S-10 S-10

0.25 0.13 0.09 0.34

$ 24,490.00 $ 21,970.00 $ 9,560.00

Oct. 31, 19 Oct. 31, 19 Oct° 31, 19 Oct. 31, 19)80

$ 22,760.00

PAY ITEMS

COMMON

TO A~ ~L ROADS

$ 16,060.00

Total applicable Purchaser Road Credits are $ 205~420.00 (Only show amounts allowed for construction or reconstruction of roads in AIO) Total estimated construction cost is $ 228,769.00 Additional Purchaser Credit (See Item Other) $ None

PURCHASER 4045

MUST

STAKE

ROAD

NUMBERS

3055~

3055A~

3055B~

3055Z,

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iO. ii.

INAPPLICABLE

STANDARD

PROVISIONS.

See sample

contract.

SPECIAL PROVISIONS.

See sample contract.

12. FINANCIAL ASSIST~qCE. The Small 'Business Administration (SBA) may he ~ble to assist small busi*~ess concerns finance construction of Speeifled Roads listed in the sample timber sale contraet~ SBA assistance, if available, may be in the form of gnaranteed bank loans or direct participation SBA leans. Applicants mus~ meet SBA size and eligibility requirements. APPLICANTS ALSO MUST ~ET CREDIT REQUIREMENTS OF SBA AND/OR A LOC~~ BA~<. APPROVAL OF LOAN ASSISTANCE RESTS WITH SBA AND IS CONTINGENT ON AVAILABILITY OF LOCAL OR SBA FUNDS. FAILURE TO BE ELIGIBLE OR TO OBTAIN A LOAN WILL IN NO WAY AFFECT REQUIREMENTS OF BID FOR ADVERTISED TI~iBER OR TIMBER SALE CONTRACT. 13. LOG EXPORT AND SUBSTITUTION RESTRICTION. ~e contract prohibits, except as specifically exempted, the export of unprocessed timber or the use of such timber in substitution for timber exported from private lands. Timber determined pursuant to public hearing to be surplus and timber not meeting utilization standards are exempt fr~n these requirements. Unprocessed timber is defined as (a).any logs of species, quantities," or grades which have not been found surplus to domestic needs meeting utilization standards and with a net scale content not less ~han 33 1/3 percent~of the gross volume in material meeting the peeler or sawmill grade requirements published in the July i, 1972, official Log Scaling and Grading Rules used by West Coast Log Scaling and Grading Bureaus; (b) cants to be subsequently remanufactured exceeding 8 3/4 inches in thickness; (c) cants of any thickness reassembled into logs; and (d) i split or round holt., or other roundwood not processed to standards and specifications suitable for end-product use (in Alaska add: and (e) chips not manufactured from logging or milling waste). Substitution is defined as the purchase of tin~er from National Forest System lands to be used as replacement for timber ~xported from private land~. Such replacement occurs when with respect to historic levels, (1) the purchaser continues to export ahd increases his purchase of National Forest timber or (2) the purchase of National Forest timber continues while the Purchaser increases his e~,-port of unprocessed timber from private lands tributary to the plant for which National Forest timber covered by a specific contract is expected to be delivered. Uistorlc level is defined as the purchase or export during 1974 or any subsequent calendar year of not to exceed ii0 percent of the average volume purchased or exported in calendar years 1971, 1972 and 1973.

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Unless agreed in wrlting otherwise, (i) all products fro~ the sale area shall be ha~er branded on beth ends with an assigned brand~ (2) each product exempt from export restrictions shall also be ha~er branded on both end~ with an exempt brand registered for use on exempt logs from National Forest timber sales, and (3) all nonexempt products shall be painted on one end ~rlth highway yellow paint. Excerpt products shall carry no yellow pa~t. For h~a bid to be considered, bidder must submit~therewlth a certification that purchase of the timber will not constitute substitution, agree to-furnish Forest Service with the na~es and locations of the manufacturing plants in which the timber i~ to be manufactured, and agree to ~ake his records as to origin and disposition of export of private 'timber available to the Forest Service upon request. Bidders are advised that false certification or violation of the export and substitution requirements may result in cancellation of the contract, refusal to.a~rard other timber sa~es~ and/or debarment or suspension from bidding on t~mber sales. 14. EQUAL EMPLOYMENT OPPORTUNITY COMPLIANCE REVIEW. In the bid value plus required deposits for this contract exceeds one ($I,00~000) an EEO compliance review will be conducted on the determine if the provisions of Executive Order 11246 have been before award can be made. event that total million dollars high bidder complied with

15. OTHER. a.-Bidders will not be permitted to change their road option election after the time for opening bids. Election must be made prior to bid opening. b. Rock pit or quarry operations are under the jurisdiction of the Mine Safety and Health Administration - MSHA. The law and regulations require pit and quarry operators to notify the applicable MSHA office prior to the start, and at the termination of operations, in a material source. c. The estimated costs for Bureau scaling include all costs, including volume summaries to be supplied to the Forest Service. d. Purchaser will construct machine firelines. e. Logs are to be lifted entirely free of the ground before yarding across the protected streams in the skyline portions of units 1 and 2. f. Logging: This sale consists of 2 clearcut subdivisions totalling 109 acres including road right-of-way. The estimated volume is 5200 M board feet. The sale was appraised for 67 acres of skyline, 8 acres of tractor, 6 acres mobile yarding and 28 acres of highlead. A skyline feasibility report was prepared and is available for review at the Verlot R_anger Station. g. Purchaser to protect water supply as shown on sale area map, B6.22, B2.31, C6.41. h. In accordance with special provision C6.6#, the Purchaser may elect to make cooperative deposits to the Forest Service to seed and fertilize landings, firelines and temporary roads. i. Purchaser operations will be limited from June 1 to October 31 for subdivision 1 and 3~ C6.311. j. Road Option. A bidder qualifying as a small business concern may elect to have Forest Service S Roads listed above (Item 9). whether~construction is

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performed by Purchaser or Forest Service. If Servic~ construction, such construction will and award will be delayed until a satisfactory bid is received, or, if Forest Service fails within 150 days of finding bidder's offer to agrees to perform road construction.

bidder elects Forest be through contracts road construction to receive such a bid be acceptable, bidder