### ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of

-- International Oil Trading Company Under Contract No. SP0600-07-D-0483 APPEARANCES FORTHE APPELLANT: ) ) ) ) )



### APPEARANCES FORTHE 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 ChiefTrial Attorney Howard M. Kaufer, Esq.

Senior Counsel Caroline L. 

### Chien, Esq.

Assistant Counsel DLAEnergy FortBelvoir, VA OPINION BYADMINISTRATIVE JUDGE FREEMAN ONTHE GOVERNMENT'S MOTION FORRECONSIDERATION The government moves for reconsideration or clarification ofour 22 June 2012 decision1

### that sustained in part appellant's motion for partial summaryjudgment in ASBCA Nos. 57491 and 57492. In that decision we stated: The specifiedprimary method and alternatives (i) and (ii) of the Quantity Determination clause clearly placed the risk of fuel losses en route from Aqabato the discharge sites on IOTC. However, alternative (iii) ofthe same clause equally as clearly placedthe risk ofen 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 offuel delivered by

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### Judge Thomas, who participated in our decision, has since retired.International Oil Trading Company (IOTC) to the government should be determined pursuantto the Quantity Determination clause ofthe contract (Fl.09.100(a)(2)(iv)(A)(iii)) and did not seek any decision concerning three risk ofloss 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 offuel by IOTC to the government at four sites in Iraq. The Quantity Determination clause ofthe contract specified the use oftemperature compensating meters at the delivery sites as the primary method ofmeasuring the delivered fuel for payment purposes. The Quantity Determination clause also specifiedthree alternative methods of measurement, ifthe 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. Duringperformance ofContract 0483, the government did not have temperature compensating meters at any ofthe four delivery sites in Iraq. Nor did it require IOTC to provide calibrated meters or gauging devices on the fuel delivery trucks. Atthree ofthe delivery sites, the government measured the delivered fuel quantity for paymentby meters and manual computation ofthe temperature compensation. At the fourth site, the government had no meters at all and accepted the loading quantity measurements at Aqabaprovided by IOTC. 12-2 BCA

## ii 35,104 at 172,373. In our 22 June 2012 decision, we held that the government's measurement ofthe delivered fuel using meters and manual computation oftemperature compensation was not compliantwith the Quantity Determination clause, andthat in the absence ofthe specified temperature compensating meters, and any direction for IOTC to provide calibrated dispensing meters or calibrated gauging devices onthe fuel trucks, theparties were required by the contractto 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 ofthe contract it contends are relevant to the issue ofrisk offuel losses between loading and delivery and points out that neither IOTC's motion, the government's opposition, orthe Board's decision cites or analyzes these clauses (mot. at 8-10). The Acceptance, Risk ofLoss clause states that: "the contractor assumes all risk ofloss associated withperformance of this contract [including]

...loss for petroleum productpriorto 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 ofand/or damage to the goods occurring before receipt ofthe shipment by the consignee at the delivery point specified in the contract" 

### (id. at A-31). The Invoice Discrepancies clause states that: "Inthe event ofa discrepancy between the invoiced quantity offuel and the quantity offuel received

...the Contractor shall be paid for actual quantities offuel received" 

### (id. at A-32). We refer hereinafter to the foregoing clauses collectively as the "risk clauses." 2Appellant states that the government is attempting to relitigate the Board's decision, but concurs that "the Board merely decided how the quantity offuel that was delivered, 

### andacceptedby [the government], would be measured for paymentpurposes" (app. opp'n at 1). We agree with both parties. Our decision analyzed the undisputed facts and interpreted the Quantity Determination clause to determine whatmethod 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 whetherthere was any interplay between the Quantity Determination clause and these clauses. Our use ofthe termrisk ofloss (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 ofquantity 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 loadingpoint. 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 ofContract Appeals

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# Jo~~ Administrative Judge Armed Services Board ofContract Appeals

### I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA Nos. 57491, 57492, Appeals of International Oil Trading Company, rendered in conformance with the Board's Charter. Dated:

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### JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals