Note: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-5022

TESORO HAWAII CORPORATION, and TESORO ALASKA COMPANY, Plaintiffs-Appellants,

v.

UNITED STATES, Defendant-Appellee.

J. Keith Burt , Mayer Brown LLP, of Washington, DC, for plaintiffs-appellants. With him on the brief were Cameron S. Hamrick , Michael E. Lackey , and Adrian L. Steel, Jr

. Steven J. Gillingham , Assistant Director, Comme rcial Litigation Branch, Classification Unit, United Stat es Department of Justice, of Washington, DC, for the defendant-appellee. With him on t he brief were Peter D. Keisler , Assistant Attorney General, Jeanne E. Davidson , Director. Of counsel on t he brief were Howard M. Kaufer , Assistant Counsel, Office of Counsel, Defense Energy Support Center, Fort Belvoir, Virginia, and Donald S. Tracy , Trial Attorney, Defense Supply Center Richmond, Richmond, Virginia. Appeal from: United States Court of Federal Claims Senior Judge Eric G. Bruggink.NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-5022

TESORO HAWAII CORPORATION, and TESORO ALASKA COMPANY, Plaintiffs-Appellants,

v.

UNITED STATES, Defendant-Appellee.

__________________________ DECIDED: September 28, 2007

__________________________ Before MAYER and PROST, Circuit Judges , and LINARES, District Judge

. ∗ PROST, Circuit Judge

. Tesoro Hawaii Corporation and Tesoro Alaska Company (collectively “Tesoro”) appeal a decision of the United States Court of Federal Claims dismissing Tesoro’s claims against the United States. Te soro Haw. Corp. v. United States , No. 02-704C (Fed. Cl. Oct. 3, 2006). Based on our disposit ion of nearly identical claims by other parties, we affirm the dismissal of claims relating to the price adjustment clause, but

∗ Honorable Jose L. Linares, District J udge, United States District Court for the District of New Jersey, sitting by designation.2007-5022 2 reverse dismissal and remand claims relating to the government’s small business and minority set-aside programs. As this court held in C onocoPhillips v. United States , No. 2007-5004, 2007 WL 2741200 (Fed. Cir. Sept. 21, 2007), the parties’ us e of the Petroleum Marketing Monthly (“PMM”) did not violate regulations or contract provisions. Specifically, PMM accurately reflected market price as conceived by the contract, the use of PMM was not a mistake by either party, and the governm ent did not breach the contract by failing to pay fair market value for the fuel Tesoro supplied. Further, use of PMM wa s consistent with the governing regulations. Contrary to the disposition by the Cour t of Federal Claims, however, that court does have jurisdiction over Tesoro’s claims that the government’s program preferring minority suppliers violates the Equal Pr otection Clause of the Fifth Amendment. Because the minority preferenc e program allegedly affected the contract price, the Court of Federal Claims must consider the merits of Tesoro’s claims. Accordingly, we affirm the dismissal of Tesoro’s claims based on use of the PMM, but reverse the dismissal of cl aims based on the government’s minority preference policy and remand for further proceedings.