DENIED: March 12, 2009 
CBCA 1323 
BARRIOS DISTRIBUTING, INC., 
Appellant, 
v. 
DEPARTMENT OF JUSTICE, 
Respondent. 
Robert H. Barrios, President of Barrios Distributing, Inc., San Diego, CA, appearing 
for Appellant. 
Dionis M. Gauvin and William Robinson, Office of General Counsel, Federal Bureau 
of Prisons, Department of Justice, Washington, DC, counsel for Respondent. 
Before Board Judges SOMERS , VERGILIO , and SHERIDAN . 
SOMERS , Board Judge. 
This appeal arises from a purchase order for the lease of beverage dispensers. 
Appellant, Barrios Distributing, Inc. (Barrios), contends that the Government damaged the 
dispensers by improperly preparing them for shipment at the end of the lease period.  The 
appeal is submitted for decision on the record under Board Rule 19 (48 CFR 6101.19 
(2008)).  For the reasons set forth below, we deny the appeal. 
Background
         In 2003, the Department of Justice, Bureau of Prisons (the Government or BOP), 
awarded a multi-year contract to Barrios for the provision of soft drink products and 

    
   
   
 
 
    
 
 
 
  
  
 
  
      
  
 
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beverage dispensers for federal correctional facilities, including the Federal Transfer Center 
(FTC) Oklahoma City.  Appeal File, Exhibit 1.  When BOP did not exercise the option for 
the third year of the original contract, FTC Oklahoma City awarded Barrios a separate 
contract for the provision of two beverage dispensers for the period of December 2006 
through February 2007.  Id., Exhibits 5, 11. At the beginning of the initial contract, Barrios 
arranged for a local contractor to install the equipment.  
The original contract included a statement of work which stated, in relevant part, that 
“all equipment provided shall remain the property of the contractor and shall be retrieved 
at the contractor’s expense upon completion of the resulting contract.”  Accordingly, the 
contracting officer believed that Barrios would be responsible for uninstalling the equipment 
and preparing it for shipment.  Respondent’s Record Submission, Declaration of Roy E. 
Franklin (Jan. 14, 2009) ¶¶ 4, 5.  Nothing in the original contract or the subsequent contract 
required the Government to prepare the equipment for shipping.  In addition, the original 
1purchase order incorporates Federal Acquisition Regulation (FAR) 52.212-4  by reference
and places the risk of loss on the contractor. The subsequent contract does not change this 
aspect of the original contract. 
At the conclusion of the second contract period, the contracting officer contacted 
Mr. Robert Barrios, the President of Barrios Distributing, Inc., to arrange pickup of the 
dispensers from the FTC Oklahoma City.  Appeal File, Exhibits 12, 19; Franklin Declaration 
¶ 7. Barrios requested that the Government put the beverage dispensers on pallets and 
“shrink wrap” them in preparation for the removal.  Franklin Declaration ¶ 8.  Accordingly, 
government warehouse employees wrapped the dispensers with shrink wrap and placed them 
on pallets. Id. ¶¶ 12, 13.  The pallets were placed in storage at the FTC Oklahoma City’s 
outside depot, awaiting pickup by Barrios.  Respondent’s Record Submission, Declaration 
of Marc Chavez (Jan. 15, 2009) ¶¶ 4, 6.  
The Nedlog Company (Nedlog),
2 on behalf of Barrios, contends that it provided the 
Government with additional instructions for preparing the dispensers for shipment in a letter 
dated April 10, 2007, as well as with a contact number for pickup.  Appellant’s Record 
Submission at 2.  Barrios asserts that the Government did not follow all of the instructions 
when it prepared the dispensers for shipment.  Id.  The Government denies that it received 
the April 10, 2007, letter.  Franklin Declaration ¶ 10.  Barrios states that the Government 
1 FAR § 52.212-4(j) stated, in relevant part, that “unless the contract specifically 
provides otherwise, risk of loss or damage to the supplies provided under this contract shall 
remain with the Contractor.”  48 CFR 52.212-4(j) (2003). 
2 The record does not explain the relationship between Nedlog and Barrios.  

     
     
 
 
 
 
       
   
   
       
  
  
  
 
 
  
    
       
   
3 CBCA 1323 
would not have known to contact Nedlog for pickup.  Id. The Government argues that the 
record evidence shows that the contracting officer contacted Barrios, not Nedlog, to arrange 
pickup. Respondent’s Reply Record Submission at 3.  Based upon the record, the Board 
concludes that the Government did not receive the letter.  
Map Transportation (a shipping company hired by Nedlog/Barrios) picked up the 
beverage dispensers on June 19, 2007.  BOP representatives noted that the beverage 
dispensers were in good condition and had been packaged with care.  Franklin Declaration 
¶ 14.  The record provides no details concerning how the dispensers were transported by the 
shipper, nor does it state whether the shipper or the Government placed the equipment onto 
the transport vehicle.  
Two days later, on June 21, 2007, the shipping company delivered the beverage 
dispensers to Nedlog. A representative of Nedlog signed a proof of delivery form, attesting 
that the beverage dispensers were “received in good condition.”  Appeal File, Exhibit 17. 
Later that day, however, the same representative sent Barrios pictures alleged to show 
damage to the equipment, and contended that the equipment had been damaged in transit. 
Nedlog asserted that the damage occurred because the equipment was shipped upright and 
had not been strapped to the pallets.  Id., Exhibit 15 at 14. There is nothing in the record to 
show that the dispensers in the photographs are the same as those originally delivered to the 
Government.  In addition, we cannot determine based upon the record whether Nedlog’s 
supposition as to the cause of the alleged damage to the equipment is accurate.      
On July 2, 2007, Barrios sent BOP an electronic mail message stating that the 
beverage dispensers were damaged beyond repair and must be replaced.  Appeal File, 
Exhibit 9 at 1.  Nothing in the record indicates how Barrios determined that the dispensers 
could not be repaired and must be replaced.  
On September 10, 2007, Barrios sought reimbursement for the damaged equipment, 
asserting that the items were “damaged at your Federal Transfer Center located in Oklahoma 
City,” and alleging that the damage occurred because the items were not correctly shipped. 
Appeal File, Exhibit 9 at 5.  The Government responded by letter dated October 18, 2007, 
denying any responsibility for the damaged beverage dispensers.  Id., Exhibit 12.  Barrios 
filed a claim with the contracting officer on November 15, 2007, seeking between $3000 
and $3400 in damages.  Id., Exhibit 13.  Upon receipt of the contracting officer’s decision 
denying its claim, Barrios filed this appeal. 

      
 
 
  
 
 
 
  
   
   
  
       
  
 
 
    
      
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Discussion 
As noted above, nothing in the language of the original contract places the 
Government under an affirmative obligation to uninstall, package, or ship Barrios’ beverage 
equipment.  The statement of work specified that the equipment would be retrieved at the 
contractor’s expense upon completion of the contract.  In addition, the contract provided that 
the risk of loss or damage to the supplies would remain with the contractor.  Therefore, to 
the extent that the equipment had been damaged, the risk of loss remained with Barrios. 
Thus, the Government is not liable to Barrios for damage to the equipment.  
Alternatively, if we assume that the risk of loss did not remain with Barrios, and that 
the Government assumed some degree of responsibility beyond that required by the contract, 
we next look to the common law principles of a bailment.  In accordance with those 
principles, Barrios must show that the equipment was delivered to the Government in good 
condition and returned in a damaged condition. Such evidence can give rise to the 
presumption that the cause of the damage to the property was the Government’s failure to 
exercise ordinary care or its negligence.  Mohammad Darwish Ghabban Est., ASBCA 
51994, 00-2 BCA ¶ 31,114, at 153,672 (citing Universal Maritime Service Corp., ASBCA 
22661 et al., 81-1 BCA ¶ 15,118; Meeks Transfer Co. , ASBCA 11819, et al., 67-2 BCA ¶ 
6567, aff’d on reconsideration, 68-1 BCA ¶ 7063). 
The parties do not dispute that the dispensers were delivered to the Government in 
good condition. In support of its claim that the dispensers were returned damaged, Barrios 
has submitted photographs.
3   Some of the photographs appear to show damage underlying 
shrink wrap that has been partially removed, with one photograph in particular showing 
what appears to be a bent leg. Appeal File, Exhibits 9, 10, 15.  We note that nothing in the 
record shows that the dispensers in the photographs are the same ones as those originally 
delivered to the Government. Nor is it possible to determine whether the equipment had 
been damaged beyond repair based solely upon the photographs.  
The Government contends that the photographs do not show that the Government’s 
actions or inactions resulted in damage to the equipment.  The Government presented 
evidence to show that the dispensers were in good condition when Map Transportation, the 
carrier, retrieved them from the Government. Franklin Declaration ¶ 14.  The record also 
contains a receipt of delivery form upon which a representative from Nedlog attested that 
the beverage dispensers were “received in good condition.”  Appeal File, Exhibit 17.  The 
3 Barrios originally submitted the photographs as an attachment to its July 2, 
2007, electronic mail message setting forth its claim.  Appeal File, Exhibit 10.  

 
    
 
    
      
      
 
   
  
 
  
 
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5 CBCA 1323 
Government avers that Barrios has failed to prove that the equipment was damaged or to 
show, if the equipment had been damaged, what caused the damage and when it occurred. 
We agree that Barrios has not shown that the Government’s actions or inactions 
caused the damage to the dispensers.  Assuming for the sake of argument that the record 
supports Barrios’ claim that the dispensers have been damaged, Barrios has presented 
nothing to show how the damage occurred.  It is impossible to determine the extent of any 
damage based upon the record evidence. Barrios has not met its burden of proof regarding 
entitlement or quantum. 
Indeed, the only evidence to support its claim that the Government caused the damage 
to the equipment by improperly packing the dispensers is the statement from Nedlog that the 
dispensers had been shipped upright rather than on their backs.  This statement, however, 
is insufficient to establish that the Government’s actions or inactions caused the damage to 
the items, particularly in light of Nedlog’s signature indicating that it had received the items 
in good condition.  In the absence of evidence showing that the Governmentacted 
negligently or without due care in preparing the items for shipment, and that the damage 
resulted from the Government’s negligence or lack of due care and not from other actions 
which may have occurred during shipping, we cannot conclude that the Government is 
responsible for the damages. 
Decision 
For the reasons stated above, the appeal is DENIED. 
JERI KAYLENE SOMERS 
Board Judge 
We concur: 
JOSEPH A. VERGILIO PATRICIA J. SHERIDAN 
Board Judge Board Judge