ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeals of --

International Oil Trading Company 

Under Contract No. SP0600-07-D-0483 

APPEARANCES FOR THE APPELLANT: 

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APPEARANCES FOR THE GOVERNMENT: 

ASBCA Nos. 57491, 57492 

Ronald H. Uscher, Esq. 

Donald A. Tobin, Esq. 

Lori Ann Lange, Esq. 

Peckar & Abramson, P.C. 

Washington, DC 

Daniel K. Poling, Esq. 

DLA Chief Trial Attorney 

Howard M. Kaufer, Esq. 

Senior Counsel 

Caroline L. Chien, Esq. 

Assistant Counsel 

DLA Energy 

Fort Belvoir, VA 

OPINION BY ADMINISTRATIVE JUDGE FREEMAN 

ON THE GOVERNMENT'S MOTION FOR RECONSIDERATION 

The government moves for reconsideration or clarification of our 22 June 2012 

decision 1 that sustained in part appellant's motion for partial summary judgment in 

ASBCA Nos. 57491 and 57492. In that decision we stated: 

The specified primary method and alternatives (i) and (ii) of 

the Quantity Determination clause clearly placed the risk of 

fuel losses en route from Aqaba to the discharge sites on 

IOTC. However, alternative (iii) of the same clause equally 

as clearly placed the risk of en route fuel losses on the 

government. 

International Oil Trading Company, ASBCA Nos. 57491, 57492, 12-2 BCA iJ 35,104 

at 172,376. 

The government moves for reconsideration or clarification on the basis that the 

motion decided by the Board sought a determination that the quantity of fuel delivered by 

1 Judge Thomas, who participated in our decision, has since retired. 
International Oil Trading Company (IOTC) to the government should be determined 

pursuant to the Quantity Determination clause of the contract (Fl.09.100(a)(2)(iv)(A)(iii)) 

and did not seek any decision concerning three risk of loss clauses found elsewhere in the 

contract (gov't mot. at 1-2). We grant the motion and clarify our decision. 

The captioned contract (hereinafter "Contract 0483") was for the sale and delivery 

of fuel by IOTC to the government at four sites in Iraq. The Quantity Determination 

clause of the contract specified the use of temperature compensating meters at the 

delivery sites as the primary method of measuring the delivered fuel for payment 

purposes. The Quantity Determination clause also specified three alternative methods of 

measurement, if the temperature compensating meters were "inoperative." The three 

alternative methods were (i) calibrated meter on the fuel trucks at the delivery site, 

(ii) gauging the fuel trucks at the delivery site, and (iii) loading rack meters or scales at 

the fuel loading site in Aqaba, Jordan. 12-2 BCA ii 35, 104 at 172,373. 

During performance of Contract 0483, the government did not have temperature 

compensating meters at any of the four delivery sites in Iraq. Nor did it require IOTC to 

provide calibrated meters or gauging devices on the fuel delivery trucks. At three of the 

delivery sites, the government measured the delivered fuel quantity for payment by 

meters and manual computation of the temperature compensation. At the fourth site, the 

government had no meters at all and accepted the loading quantity measurements at 

Aqaba provided by IOTC. 12-2 BCA ii 35,104 at 172,373. 

In our 22 June 2012 decision, we held that the government's measurement of the 

delivered fuel using meters and manual computation of temperature compensation was 

not compliant with the Quantity Determination clause, and that in the absence of the 

specified temperature compensating meters, and any direction for IOTC to provide 

calibrated dispensing meters or calibrated gauging devices on the fuel trucks, the parties 

were required by the contract to use the alternative (iii) loading point measurement 

method for payment. 12-2 BCA ii 35,104 at 172,376. 

The government's motion for reconsideration cites three clauses of the contract it 

contends are relevant to the issue of risk of fuel losses between loading and delivery and 

points out that neither IOTC's motion, the government's opposition, or the Board's 

decision cites or analyzes these clauses (mot. at 8-10). The Acceptance, Risk of Loss 

clause states that: "the contractor assumes all risk of loss associated with performance of 

this contract [including] ... loss for petroleum product prior to Government acceptance at 

destination" (R4, tab 1 at A-12). The F .O.B. Destination clause states that: "The 

Contractor shall ... [b]e responsible for any loss of and/or damage to the goods occurring 

before receipt of the shipment by the consignee at the delivery point specified in the 

contract" (id. at A-31). The Invoice Discrepancies clause states that: "In the event of a 

discrepancy between the invoiced quantity of fuel and the quantity of fuel received ... the 

Contractor shall be paid for actual quantities of fuel received" (id. at A-32). We refer 

hereinafter to the foregoing clauses collectively as the "risk clauses." 

2 
Appellant states that the government is attempting to relitigate the Board's 

decision, but concurs that "the Board merely decided how the quantity of fuel that was 

delivered, and accepted by [the government], would be measured for payment purposes" 

(app. opp'n at 1). 

We agree with both parties. Our decision analyzed the undisputed facts and 

interpreted the Quantity Determination clause to determine what method the contract 

required the parties to use to determine how much fuel was delivered by IOTC. We were 

not presented with and did not analyze the risk clauses and expressed no opinion as to 

whether there was any interplay between the Quantity Determination clause and these 

clauses. Our use of the term risk of loss (12-2 BCA il 35,104 at 172,376) was not 

intended to convey that we had made such an analysis but merely to observe that three of 

the four methods of quantity determination set out in the contract measured the oil 

delivered by IOTC at the delivery point, while the fourth, and the one we determined was 

the contractually required method given the facts, measured the oil delivered by IOTC by 

reference to the loading point. The difficulties that may arise with such a method are 

readily apparent. 

CONCLUSION 

Our decision is clarified to the extent set forth above. 

Dated: 25 April 2014 

I concur 

~--

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

3 

Administrative 

Jo~~ Judge 

Armed Services Board 

of Contract Appeals 
I certify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals in ASBCA Nos. 57491, 57492, Appeals of 

International Oil Trading Company, rendered in conformance with the Board's Charter. 

Dated: 

4 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals