I'm sorry I wasn't clearer. Agencies with resource protection authority routinely contract services to assist in wildfire suppression activities. Here in the north west we primarily contract logging equipment to provide this service. An emergency equipment rental agreement is awarded under the service contract act. In addition to 52.212-5, an EERA has general clauses attached; the specific clause addressing loss, damage or destruction of fully operated equipment states: "For equipment furnished under this EERA with operator, the Government shall not be liable for any loss, damage or destruction of such equipment, except for the loss, damage or destruction resulting from the negligence, or wrongful act(s) of Government employee(s) while acting within the scope of their employment. The operator is responsible for operating the equipment within its operating limits and responsible for safety of the equipment."
In this case, the operator is responsible to bring to the table industry expertise and the ability to operate the equipment up to manufacturer limitations safely. The Government is responsible for fire line supervision, provide lookouts/communication/escape route/safety zone (LCES); the Government is the fire experts, the contractors are the industry experts. In the case of the burnover, the Government neglected to provide LCES and fire line supervision sufficient to safeguard the equipment; because of this, all equipment had to be abandoned. There is no question as to this.
I guess I don't see the CO final decision as separate than a claim determination, they appear hand in hand to me. The CO has done a D&F addressing the actual equipment loss but we're struggling to find direction on how to assess idle time, what to consider, especially since it's the Governments fault they lost their equipment. It would be great if we could pay part of this claim, close that portion out and spend time figuring out the rest that may or may not be allowable. These are small companies that really don't have the ability to float the Government so we're hoping a two tier decision is acceptable. Neither one of us believe this will put the Government in a negative negotiating position; it's just that we can't find anything like it.