he executed was in his letter dated May 21, 1975-almost a month after the modification's execution. Moreover, we note that Mr. Peters certainly could have elected to perform the work in units 5, 6 and 10 by helicopter logging rather than sign the modification agreement allowing him to use his requested alternate logging methods.

The rule, with respect to claims against the United States, is that the claimant bears the burden of proof to establish his claim. See 31 Comp. Gen. 340 (1952). Accordingly, based on the record before us, where conflicting statements of the claimant and the contracting agency constitute the only evidence, we do not find sufficiently clear evidence to support Mr. Peters' contention that he did not willingly agree to the modification, such that payment of the claim could be supported. See Afghan Carpet Cleaners, B-175895, April 30, 1974, 74-1 CPD 220; Remcor, Inc., B-179243, July 22, 1975, 75-2 CPD 57. Nor can we find that the Government employed improper economic duress to compel the execution of the modification. The elements of economic duress have been found to be as follows: (1) a party compels another to assent to a transaction against his will; (2) such assent is induced by wrongfully threatening action the party has no legal right to take; and (3) the threatened action, if taken, will cause irreparable damage to the other party. Restatement, Contracts, § 493; 13 Williston, Contracts, §§ 1617-1618 (3rd ed. 1970); Hartsville Oil Mill v. United States, 271 U.S. 43 (1926); Paccon, Inc., ASBCA No. 7890, 1963 BCA 3659 (1963); Corbetta Construction Co., Inc., ABSCA No. 6290, 1964 BCA 4386 (1964). As indicated above, we do not find in the record evidence that Mr. Peters acted against his will or that the Forest Service obtained Mr. Peters' assent by wrongfully threatening action it had no legal right to take. See Beatty v. United States, 144 Ct. Cl. 203, 206 (1958). Contrast Camp Sales Corporation v. United States, 77 Ct. Cl. 659 (1933), where the Government had no legal right to require additional compensation for extending the period of performance caused by Government delays and it was clear that the contractor concurrently protested the modification.

Mr. Peters' counsel also contends that the modification is of no effect because there is no consideration to support it. Counsel also states:

*the switch was advantageous to the Forest Service in that completion of logging within the contract term, while the beetles remained dormant was assured. The risk of lost time due to bad winter weather not permitting helicopter flying was thereby eliminated.

In this connection, it is further stated in counsel's letter dated October 18, 1976:

It is important to recognize that the performance of the Skyo Line Contract took place between February and June of 1975. A period of time for notoriously

bad weather in the Cascade Mountain Range of Western Washington, where the sale was situated *** Many days were lost due to bad weather and Mr. Peters was permitted additional time for performance of the Skyo Line Sale whenever helicopters could not fly due to weather or mechanical breakdowns. Revising the Skyo Line logging plan to permit the removal of 50 acres of timber by cable system guaranteed that that timber would be removed within the term of the contract, notwithstanding weather and other problems, since cable yarding systems are not affected by fog or overcast.

While timely performance was certainly in the Government's interest, we observe that Mr. Peters bore the risk of meeting the contract termination date. No extensions of the contract were contemplated and a $250,000 performance bond was required to ensure timely performance. It is therefore clear that Mr. Peters received consideration in that he was relieved of a more risky and costly method of logging on three cutting units. Also, he was allowed to use equipment he apparently was more familiar with and had more control over.

Mr. Peters' counsel argues that the modification agreement is unconscionable and unenforceable as a matter of law under the Uniform Commercial Code (UCC). (In R. H. Pines Corporation, 54 Comp. Gen. 527, 528 (1974), 74-2 CPD 385, we indicated that our Office will look to UCC principles as a source of Federal common law. Also see Everett Plywood and Door Corporation v. United States, 419 F.2d 425 (Ct. Cl. (1969)). He argues:

UCC 1-203 imposes on parties to contracts the obligation of good faith in the performance and enforcement of the contract. Further, where an agree ment is found to be unconscionable, it is unenforceable. UCC 2–302.

The circumstances extant at the time of the execution of the modification agreement were such that the Forest Service had the power of economic life or death over Peters. Consent to a change in logging systems would insure timely performance of the contract by Peters. Denial of the requested change would hinder or preclude timely performance and would jeopardize Mr. Peters' performance bond. The Forest Service as a matter of good faith was obliged to cooperate with Mr. Peters. The requested change satisfied the Forest Service needs, and was contemplated by the original contract. The Forest Service demand that Peters agree to an increase in the purchase price of timber as a condition for consenting to the change of logging system was unconscionable when done contrary to existing Forest Service policy and when exacted by duress. This conduct renders the modification agreement unenforceable as a matter of law.

UCC § 2-302 provides in pertinent part:

If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.

The basic principle underlying UCC § 2-302 is "the prevention of oppression and unfair surprise and not of disturbance of allocation of risk***." See Official Comment to UCC § 2-302.

In determining whether a provision or modification of a contract is unconscionable under UCC § 2-302, the factors the courts have gen

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erally examined are the relative equality of bargaining power, the one-sidedness of the "bargain," and whether the "inferior" party was unfairly surprised by the terms of the agreement. See Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (C.A.D.C. 1965); Jones v. Star Credit Corp., 298 NYS 2d 264 (Sup. Ct. 1969); Equitable Lumber Corp. v. I.P.A. Land Development Corp., 381 NYS 2d 459 (C.A. 1976).

Mr. Peters characterizes himself as a "small independent contract logger, and I have not purchased any Government Timber Sales." However, Mr. Peters is portrayed in a June 20, 1975, letter of the Forest Supervisor as follows:

It is true that the Purchaser had not previously purchased any National Forest timber; at least none that is on the records of the Forest. However, the Purchaser does have a considerable history of logging different types of timber sales on the Forest. The Purchaser's experience in logging National Forest timber implies that he has first-hand experience and knowledge of the variety of requirements that were incorporated into the sale areas he has operated on.

This characterization has not been questioned or refuted by Mr. Peters. Further, the record clearly indicates that Mr. Peters used his ingenuity to obtain easements so alternate logging systems could be utilized. Also, in the June 20, 1975, letter of the Forest Supervisor, it is stated:

The District kept the purchaser informed verbally all the way through the the process of redetermining rates for the modification. * ** In fact, the Purchaser was personally handed by District personnel a penciled rough-draft copy of the re-appraisal in early March, well enough in advance to ascertain the costs and requirements involved, and on which to base his decision. His decision to request the change was promptly forthcoming. [Italic supplied.]

Mr. Peters also does not refute or contradict these comments.

While Mr. Peters contends that the Forest Service had no right to demand a contract modification to increase the purchase price of the timber, we are satisfied that the Forest Service acted within the bounds of its lawful authority and did not impose a "one-sided" bargain, and that Mr. Peters was kept sufficiently apprised of the actions and intentions of the Forest Service to conclude that there was no unfair surprise. Consequently, we do not believe Mr. Peters has made his case for unconscionability.

In any case, in the absence of coercion, duress or unconscionability, even assuming that this modification was not permitted under the terms of the contract (which we found above was not the case), we believe Mr. Peters' signing of the modification agreement and continuing performance of the contract in accordance with the agreement, without indication of protest and with apparent knowledge of the modification's scope, constituted an "election" or waiver of his "right" to now assert that the modification was beyond the scope of the con

tracting officer's authority, and thus constituted a breach of contract. See Merrill-Stevens Dry Dock & Repair Company v. United States, 119 Ct. Cl. 310, 323 (1951); Ling-Temco-Vought, Inc. v. United States, 475 F.2d 630 (Ct. Cl. 1973); Airco Inc. v. United States, 504 F.2d 1133 (Ct. Cl. 1974); Cities Service Helex, Inc. v. United States, 543 F.2d 1306 (Ct. Cl. 1976). Contrast Peter Kiewit Sons' Company v. Summit Construction Company, 422 F.2d 242, 258-259 (8th Cir. 1969).

Mr. Peters has also raised certain questions regarding the amount of additional consideration he was obligated to pay under the modification. Although no direct questions regarding the additional acreage rate have been raised, Mr. Peters has made considerable objection to the increased stumpage rate. Mr. Peters' basic contention is that no additional stumpage rate should have been charged because this was a "deficit” sale. That is, the sale was appraised by the Forest Service, prior to advertising for bids, at minus $6.40 per MBF as follows:

Selling value of timber

Logging and manufacturing cost

Conversion return

"Normal" profit and risk

Appraised value

$245.39 per MBF

210.81

$ 34.58

40.98

-$ 6.40 per MBF

However, Forest Service regulations required that this particular timber could not be sold for less than $5.39 per MBF. The sale was advertised on this basis. Consequently, Mr. Peters characterizes the sale as a "deficit" sale of minus $11.79 per MBF-the amount the minimum sale rate exceeded the appraised value of the timber.

Taking into account the increased and saved logging costs over the entire sale area as a result of the changed logging methods, a net figure of $11.18 per MBF stumpage rate, representing saved logging costs to Mr. Peters, was computed by the Forest Service. This was the figure by which the stumpage rate under the contract was increased, i.e., from Mr. Peters' bid price of $38.00 to $49.18 per MBF.

Mr. Peters essentially contends that since the "appraised" value of the sale was $11.79 below the advertised base rate and the alleged savings from the modification were $11.18, no additional stumpage rate should have been required, inasmuch as Mr. Peters was essentially being charged the $11.18 twice under the Forest Service's calculations. That is, the reappraised value of the timber should have been calculated as $4.78 per MBF by adding the $11.18 per MBF to the minus $6.40 per MBF appraised value-which is below the $5.39 per MBF minimum sale rate.

From our review, we disagree with Mr. Peters' calculations. He was not charged $11.18 twice; rather, an adjustment to the price he

bid under competition was made to reflect the net savings he achieved by virtue of his requested alternate logging methods. Mr. Peters contracted to pay a $38.00 stumpage rate-not the timber's "appraised" value. Consequently, the contract price-not the appraised value—is the critical figure to be recalculated in making an equitable adjustment because of a contract modification. In any case, Mr. Peters agreed to the higher stumpage rate in signing the modification agreement.

The modification was made retroactive effective to the beginning of the contract period. The record indicates that considerable logging on the other units had been done by April 24, 1975-the date the modification became effective. The modification of the rate structure is in violation of 36 C.F.R. § 221.16 (a) (1976), because it pertains to the contract's executed portions as well as the unexecuted portions. This regulation provides in pertinent part:

Timber sale contracts may be modified only when the modification will apply to unexecuted portions of the contract and will not be injurious to the United States.

Under this regulation, such retroactive modifications to the rates for the already completed portions of the timber sale contract are improper. See 49 Comp. Gen. 530, 531 (1970).

36 C.F.R. § 221.16 (a) (1976) was promulgated by the Secretary of Agriculture pursuant to 16 U.S.C. § 476 (1976), and has the force and effect of law. See Paul v. United States, 371 U.S. 245 (1963); Hi-Ridge Lumber Company v. United States, supra. However, notwithstanding the violation of this regulation, we do not believe Mr. Peters can assert it to excuse himself from the contract modification he agreed to, since, by signing the modification, which was not injurious to the Federal Government, with no coercion, duress or unconscionability shown, and by continuing contract performance in accordance with the modification, this regulation became effectively inoperative insofar as Mr. Peters was concerned. See United States v. New York and Puerto Rico Steamship Company, 239 U.S. 88, 92 (1915); Adelhardt Construction Company v. United States, 123 Ct. Cl. 456 (1952); Hartford Accident & Indemnity Company v. United States, 130 Ct. Cl. 490 (1955); United States v. Russell Electric Company, 250 F. Supp. 2, 22 (S.D.N.Y. 1965); B-156271, April 20, 1965; 49 Comp. Gen. 761 (1970); B-162922, October 30, 1972.

In view of the foregoing, Mr. Peters' claim is denied.

[B-187104]

Leaves of Absence-Forfeiture-Scheduling Requirement

Annual leave forfeited at end of 1974 leave year allegedly due to exigencies of the public business but not scheduled in advance may not be restored under 5 U.S.C.