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D_Wess

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About D_Wess

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  1. Thank you all for your input, it's painfully apparent we've been approaching this "claim" process in a very cavalier way! Mr. Edwards, we found your post from 2012 re "REAs and Claims: Is There A Difference?", very helpful for understanding the whole process, but speaking to this particular issue I'm not sure if either apply. I don't have Black's 9th edition but 4th edition defines Demand as "A peremptory claim to thing of right, differing from a claim, in that it presupposes that there is no defense or doubt upon question of right." Since there is no dispute as to the Governments actions (the Gov't did the FLA that questions decisions and points out failures in consideration) is the portion of this issue that addresses the actual cost of lost equipment (easily supported by commercial retail sales of used logging equipment) just a demand? Would that be a better term? As to the idle time or inconsequential damages, we're still struggling with what that would look like and if even allowable. When the equipment was lost, it immediately closed out the order it was under for the fire assignment, an invoice was processed for the days the equipment operated on that fire. They did have another non-federal contract that, had we released them from the fire as per normal, they would have gone back to work on. Their fire daily rate doesn't apply, their normal contract rate doesn't apply since they technically don't have equipment operations cost isn't there. Something we're working on. Regardless, we are planning on trying to put together some training on this...which should be telling.. C_Culham - commercial item clauses are attached in addition to the EERA T&Cs.
  2. 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.
  3. This last summer we had an incident where fully operated logging equipment under hire through an Emergency Equipment Rental Agreement was destroyed on a wildland fire. The contractors were in full compliance with their agreement; the Government however failed to provide adequate direction, control, communication, and oversite to assure the safety of the equipment on a wildfire incident. Claims have been submitted for all lost equipment. The actual replacement cost for the logging equipment is fairly straight forward but what we're struggling with is loss of use costs. These companies had open logging contracts; loggers routinely suspend their logging contracts to make their equipment available for fire suppression support. Upon release from a fire assignment loggers resume their logging contract work. The equipment that was burned over was a complete loss; both companies have since replaced their equipment but there was idle time for each company due to the burnover. These are both small businesses. My question is, can we make a partial payment on this claim to cover the known replacement costs? We're working with both of these companies to determine the impact of any idle time, but we would like to process at a minimum the equipment replacement costs. Is there such a thing as a partial payment of a claim? A partial release? Any guidance would be greatly appreciated.
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