William J. Honan (WJH 1922)

Michael J. Frevola (MJF 8359)

HOLLAND & KNIGHT LLP

195 Broadway

New York, NY 10007-3189

(212)513-3200

ATTORNEYS FOR PLAINTIFF

WILHELMSEN PREMIER MARINE FUELS AS

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

WILHELMSEN PREMIER MARINE FUELS AS,

Plaintiff,

-againstUBS PROVEDORES PTY LTD. a/k/a

USS-UBS INTERNATIONAL and

RAECORP INTERNATIONAL PTY LTD.,

Defendants.

District of Columbia

City of Washington

)

) ss:

)

07 Civ. 5798 (CM)

AFFIDAVIT OF

RONALD H. USCHER IN

SUPPORT OF PLAINTIFF'S

AMENDED MOTION TO

VACATE DISMISSAL ORDER

Ronald H. Useher, being duly sworn, deposes and says:

1. I am a member of the firm of Peekar & Abramson, P.C, I have been retained by

plaintiff Wilhelmsen Premier Marine Fuels AS ("Wilhelmsen") to provide counseling on federal

government procurement issues pertaining to the referenced matter.

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 1 of 26
2. I am familiar with the facts and circumstances underlying this dispute and my

statements are based upon my own personal knowledge.

3. I provide this affidavit in support of Wilhelmsen's amended application to vacate

the Order of Dismissal with prejudice dated January 14, 2008 granted in favor of Defendants

UBS Provedores Pty Ltd. a/k/a USS-UBS International ("UBS") and RaeCorp International Pty

Ltd.

4. I was retained by Wilhelmsen in January 2008 after the parties had executed their

Settlement Agreement dated October 22, 2007 (the "Settlement Agreement"), for the purpose of

making inquiries with the U.S. Government, and specifically the Defense Energy Support Center

("DESC"), as to the status of UBS' claims pending before the DESC for UBS' fueling services

provided to U.S. Government vessels in Sasebo and Naha, Japan. The parties' Settlement

Agreement, annexed as Exhibit #1 to the van Hemmen Certification dated February 1, 2008 filed

with this Court (Document #35), provides in relevant part that:

WHEREAS, UBS has submitted a claim to the U.S. government under its

contract with the Defense Energy Support Center in the amount of THREE MILLION

ONE HUNDRED EIGHTY THOUSAND EIGHT HUNDRED FIFTY THREE DOLLARS AND

FIFTY-EIGHT CENTS ($3,180,853.58), relating to amounts invoiced pursuant to

invoice number 10039 and concerning the bunkerings [claimed in Wilhelmsen's

Verified Amended Complaint], which claim presently is under review by the U.S.

government (the "Government Claims")

* * *

6. In addition to the Initial Payment and the Second Payment, UBS will pay to

Wilhelmsen TWO MILLION EIGHTY-SEVEN THOUSAND EIGHT HUNDRED NINETY-ONE

DOLLARS AND SEVENTY-FIVE CENTS ($2,087,891.75), which payment will become

due when the U.S. Government pays the Government Claims to UBS. UBS

warrants that it will use its best endeavors to recover from the U.S. government on

the Government Claims and will provide to Wilhelmsen copies of its application

for the Government Claims as well as a full record of its correspondence with the

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 2 of 26
U.S. government concerning the Government Claims. The Parties agree that this

amount will be paid in full from the Government Claims payment before UBS is

entitled to keep any of the Government Claims payment for itself..,.

Van Hemmen Certification dated Feb. 1, 2008 (Document #35), Ex, 1, at pp. 1, 4 (emphasis

added),

5. On January 30, 2008,1 served DESC with a request for documents pursuant to the

Freedom of Information Act ("FOIA") relating to the contract between DESC and UBS

designated as Contract 06-D-0391 (the DESC/UBS Contract"). A true copy of my FOIA request

is annexed as Exhibit 1.

6. On February 1, 2008 and February 8, 2008 I received copies of UBS' documents

produced to Wilhelmsen's New York counsel, Holland & Knight LLP, as part of the parties'

Settlement Agreement. On February 1, 2008, I received a total of 8 pages of documents. On

February 8, 2008, I received a total of 72 pages of documents. These documents appeared

incomplete and redacted important financial information.

7. I use the term "incomplete" with regard to the word "claims" because, while

DESC and UBS apparently treated these documents as "claims" in the sense that UBS is seeking

extra compensation, these documents are not "claims" as that term is used in government

contracting. The main difference is that documents produced by UBS' counsel did not contain a

written claim certification by UBS as required by the Contract Disputes Act (CDA), 41 U.S.C.

§605(c), and the Federal Acquisition Regulations ("FAR"), 48 C.F.R. §33.207. In addition, the

documents do not appear to reference any bunkerings claimed in Wilhelmsen's Verified

Amended Complaint (part of the "Government Claims"). Because the documents produced by

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 3 of 26
UBS did not appear to qualify as a "claim" under CDA rules, and because the redactions and

apparent omissions made it difficult to confirm that the documents produced by UBS pertained

to the "Government Claims" referenced in the parties' Settlement Agreement, I requested that

Wilhelmsen's New York counsel write to UBS' counsel to question the completeness of UBS'

document production, which letter I was copied on and was dated April 2,2008,

8. Returning to the FOIA requests, on February 21,2008 I served an amended FOIA

request on DESC. A true copy of the February 21, 2008 FOIA request is annexed as Exhibit 2,

9. On March 14, 2008, I received an interim reply to my FOIA request to DESC,

DESC's interim reply provided the status of DESC's efforts in producing the various records we

had requested. As is often the case with FOIA requests, some records were capable of being

released, while others were deemed not to be releasable. In that reply, DESC provided

previously unseen documents which suggested that UBS has been paid for its Government

Claims but has failed to advise Wilhelrnsen,

10. One of the documents produced by DESC on March 14, 2008 was Modification

P00004 of September 24, 2007 ("Mod. 4"), which is a modification to the DESC/UBS Contract

and which summarizes the history of UBS' March 8, 2007 claim in the amount of $3,550,783,66

related to UBS* performance under the DESC/UBS Contract at Sasebo. A true copy of Mod, 4 is

annexed as Exhibit 3. Mod, 4 provides, in pertinent part, that:

2, Pursuant to subsequent review of the claim and responses from all concerned

parties, the Contracting Officer has determined that the subject claim is valid and

the Contractor fie,, UBS] mil be paid the amount of $3,550,783,66.

TOTAL SUM to be paid: $3.550.783.66

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 4 of 26
See Exhibit 3, p. 2 (first emphasis added).

11. Another document produced by DESC on March 14, 2008 was Modification

P00005 of November 7, 2007 ("Mod. 5"), which is a modification to the DESC/UBS Contract

and which summarizes the locations for fueling services initially awarded to UBS and those

locations in which UBS defaulted on its obligations under the DESC/UBS Contract. A true copy

of Mod, 5 is annexed as Exhibit 4, The modification provides, in select parts, that:

5, WHEREAS, the Contractor [i.e., UBS] has repeatedly demonstrated that it

does not understand the terms and conditions of the contract, particularly by filing

claims for ancillary charges to which, in accordance with the contract, it is not

entitled....

7. NOW THEREFORE, as a result of the above-mentioned defaults ... the

contract is hereby terminated for cause ....

8, The Government acknowledges that the contractor has no obligation to make

farther deliveries under the contract. The Government reserves all rights and

i

remedies under the contract and those provided by law, including, without

limitation, the right to claim damages for any previous delivery of fuel.

See Exhibit 4, pp. 3-4,

12. After receiving these documents, on March 19, 2008 I called Kay Bushman, Esq.,

an attorney in DESC's Office of General Counsel who is assigned to the DESC/UBS Contract

claims. During our conversation, Ms. Bushman confirmed that UBS was paid the claim amount

of $3,550,783.66, which she believed had occurred sometime in late December 2007. Based on

the foregoing documents and my follow-up telephone conference with Ms. Bushman, the

following conclusions can be reached.

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 5 of 26
a. Mod. 4 documents DESC's agreement that UBS* Sasebo claim was valid and that

DESC paid UBS $3,550,783.66 for that claim;

b. UBS must have submitted a formal claim to DESC that complied with the

procurement rules for claims (FAR 33.206). In my experience, had a claim of this

magnitude not been certified as required under the law, DESC would not, and

perhaps even could not, agree to pay the claim; and

c. The claims on which UBS was paid most likely were the "Government Claims"

referenced in the Settlement Agreement, thus obligating UBS to pay Wilhelmsen

the $2,087,891,75 owed to Wilhelmsen under numbered paragraph 6 of the

Settlement Agreement. My conclusions as to why UBS was paid on the

Government Claims follow.

13. The Government Claims referenced in numbered paragraph 6 of the Settlement

Agreement are defined in the second "Whereas" clause of the Settlement Agreement as follows:

UBS has submitted a claim to the U.S. Government under its contract with the

Defense Energy Support Center in the amount of THREE MILLION ONE

HUNDRED EIGHTY THOUSAND EIGHT HUNDRED FIFTY-THREE

DOLLARS AND FIFTY-EIGHT CENTS ($3,180,853.58), relating to amounts

invoiced pursuant to invoice number 10039 and concerning the bunkerings

reflected in Exhibit 1, which claim is presently under review by the U.S.

Government (the "Government Claims").

14. Documents produced to us by UBS include a cover sheet entitled "Sasebo Claim"

dated "07 March, 2007" followed by a claim letter of the same date and a document designated

"Tax Invoice 10039" which purports to invoice the Government for "1 Each Claim Dated 7th

March, 2007." True copies of these documents are annexed as Exhibit 5,

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 6 of 26
15. While the claim amounts on these documents enclosed as Exhibit 5 are redacted,

the "Sasebo Claim" dated 07 March, 2007 clearly is the "Claim Dated 7th March, 2007" referred

to in Tax Invoice 10039. In turn, Tax Invoice 10039 clearly is the "invoice number 10039"

referred to in the second "Whereas" clause of the Settlement Agreement. Therefore, it follows

that the "Sasebo Claim" dated 07 March, 2007 is the "Government Claims" referred to in the

Settlement Agreement, and that Wilhelmsen is entitled to be paid $2,087,891.75 from the

Government's payment of the Sasebo Claim.

16. This conclusion is supported by the response of UBS' counsel to Wilhelmsen's

New York counsel's April 2, 2008 letter questioning the completeness of UBS' document

production. It is my understanding that UBS' counsel replied: "My client confirms that UBS has

produced all claims related documents." This confirms that the Sasebo Claim pertaining to Tax

Invoice 10039, contained in the documents produced by UBS, must be the "Government Claims"

referred to in the parties' Settlement Agreement. (The documents produced by UBS contain no

other Sasebo claim). Because the Government has paid $3,550,783.66 on the Sasebo claim, I

believe that UBS most likely has been paid on the "Government Claims."

17. It is my understanding that UBS' counsel provided to Wilhelmsen's New York

counsel a UBS document titled "Tax Invoice 10454," which UBS1 counsel contended established

that the payment to UBS was not related to the "Government Claims." I have annexed a true

copy of this document as Exhibit 6. Tax Invoice 10454 is not proof that DESC paid the

$3,550,783.66 on a claim other than the Sasebo Claim originally submitted under Tax Invoice

10039. Tax Invoice 10454 merely invoices for the already agreed-upon Mod. 4 amount, as can

be seen by the reference in the Invoice to Mod. 4 and by the date of the Invoice (9/24/07), which

is the same as DESC's execution of Mod. 4.

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 7 of 26
18. Because UBS has redacted all financial information from Tax Invoice 10039 and

apparently has not produced any claim documents pertaining to the bunkerings claimed in

Wilhelmsen's Verified Amended Complaint, it is possible that the $3,550,783,66 agreed to in

Mod, 4, and men billed by Tax Invoice 10454, represents payment of those "Government

Claims" referenced in the Settlement Agreement, Even if an unredacted Tax Invoice 10039 were

to reveal that it was for an amount other than $3,550,783.66, the difference could still be (a)

amounts attributable to the bunkerings claimed in Wilhelmsen's Verified Amended Complaint

(the other portion of the "Government Claims") or (b) additional UBS submissions and

negotiations that occurred after the initial submission of Tax Invoice 10039,

19, Therefore, Tax Invoice 10454 does not change my conclusion that the claims on

which UBS was paid most likely were the "Government Claims" referenced in the Settlement

Agreement, thus obligating UBS to pay Wilhelmsen the $2,087,891,75 owed to Wilhelmsen

under numbered paragraph 6 of the Settlement Agreement.

Ronald H. Uscher

Sworn to before me this 20th day of May, 2008.

v lUlUI""fff,

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 8 of 26
Two Lafayette Csntre

1133 21st Street, N,W.

Suite 500

Washington, D,C. 20038

til, 202.283.8815

fax 202.293,7994

New York

New Jersey

San Francisco

Los Angeles

Orange County

Miami

Fort Lauderdale

Orlando

Chicago

London

www.pecklaw.com

member e

.Coratructlcfl LJTO

'.Alfcnoi

Peckar & Abramson

A Professional Corporation • Attorneys & Counselors at Law

January 30,2008

By E-Mail: peraie.foreliand@dla.inil

Ms, Pemie C. Forehand

Freedom of Information Act Officer

Defense Energy Support Center

8725 John J. Kingman Road5 Suite 4950

Ft. Belvoir, Virginia 22060-6222

RE: Freedom of Information Act Request

Dear Pernie;

In accordance with the Freedom of Information Act, 5 U.S.C. §§552 et

ssq,, I hereby request copies of the following records or any reasonably

segregable portion thereof:

1. All documents relating to the following bunker deliveries by USS-UBS

International under DESC Contract No, SP0600-06-D-0391, including

without limitation any performance on behalf of USS-UBS International

by or on behalf of Wilhelmsen Premier Marine Fuels:

Date: Vessel;

1/19/07 SS Maj Stephen Pless

1/31/07 USNS Summer

3/5/07 . USNS Mary Sears

3/20/07 HSV Westpac Express

3/21/07 USNS Bowditch

3/26/07 SS Maj Stephen Pless

4/9/07 USNS Mary Sears

4/20/07 HSV Westpac Express

4/23/07 USNS Bowditch

5/1/07 SS Cape Jacob

CLIN7 Location

765-61 / Sasebo MSC

774-61 / Naha, Okinawa

765-6II Sasebo MSC

774-61 / Naha, Okinawa

765-61 / Sasebo MSC

765-61 / Sasebo MSC

774-61 / Naha, Okinawa

774-61 / Naha, Okinawa

774-61 /Naha, Okinawa

765-61 / Sasebo MSC

All documents relating to any invoices or requests for payment by USSUBS International pertaining to the bunker deliveries listed in No, 1,

above.

All documents relating to any claims for additional compensation or

requests for equitable adjustment submitted by USS-UBS International

pertaining to the bunker deliveries listed in No, 1, above.

EXHIBIT

1

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 9 of 26
& Abramson

A Profassional Corporation»Attorneys & Counselors at Law

Ms. Pemie C. Forehand

January 30,2008

Page 2

4, All documents pertaining to DESC's review of, evaluation of, or decision

on, any claims for additional compensation or requests for equitable

adjustment submitted by USS-UBS International pertaining to the bunker

deliveries listed in No, 1, above,

5, AH documents relating to any payments made to USS-UBS International

pertaining to the bunker fuel deliveries listed in No. 1, above, including

any payments of any claims or requests for equitable adjustment,

6, All documents relating to any invoices or requests for payment by USSUBS International under Contract No, SP0600-06-D-0391 which DESC

has received by not yet paid or authorized payment of as of the date of

DESC's response to this request,

7, All documents relating to any invoices or requests for payment by USSUBS International under Contract No, SP0600-06-D-0351 which DESC

has received but not yet paid or authorized payment of as of the date of

DESC's response to this request,

8, Any modifications of Contract SP0600-06-D-0391 issued after P00003,

9, All documents relating to any pre-award survey (FAR 9,106) of USS-UBS

International pertaining to the award of either Contract SP0600-06-D-0391

or Contract SP0600-06-D-Q3J1.

10, All documents pertaining to any information received or developed prior

to award of Contract SP060Q-06-D-Q391 pertaining to the cost realism of,

or ability to perform at, the prices bid-by USS-UBS International on Line

Item Nos, 765-61 (Sasebo MSC) and 774-61 (Naha, Okinawa).

11, The abstract of bids of Bid Evaluation Model pertaining to bids for Line

Item Nos. 765-61 (Sasebo MSC) and 774-61 (Naha, Okinawa) prior to

award of Contract SP0600-06-D-0391.

We will pay all applicable search and duplication costs which maybe

incurred in responding to this request, Please notify me before these costs exceed

$300, Should you require any additional information or clarification, please call

me at (202) 293-8815 (ext. 7110) or e-mail me at ruscher@pecklaw.com.

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 10 of 26
& Abramson

A Profsssional Corporation»Attorneys & Counselors at Law

Ms, Pernie C. Forehand

January 30, 2008

PageS

Thank you.

Enclosure

Ronald H. Useher

Attorney for

Wilhelmsen Premier Marine Fuels

cc: Kay Bushman, Esq. kay.bushman@dla.mil

Assistant Counsel

Defense Energy Support Center

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 11 of 26
Two Lafayette Centre

1133 21st Street, N.W.

Suits 500

Washington, O.C. 20038

tel, 202.293.8815

fax 201293.7984

NawYork

NBW Jarsey

San Francisco

Los Angeles

Orange County

Miami

Fort Laudardale

Orlando

Chicago

London

www.peckiaw.com

9 mamfcsf of the

Peekar & Abramson

A Professional Corporation * Attorneys & Counselors at Law

February 21,2008

By E-mail; pernie.forehand@dla.inil

Ms. Pemie C. Forehand

Freedom of Information Act Officer

Defense Energy Support Center

8725 John J. Kingman Road, Suite 4950

Ft. Belvoir, Virginia 22060-6222

RE: Revisions to FOIA 08-031

Freedom of Information Act Request

Dear Ms. Forehand:

Pursuant to your conversation today with Nick Hoogstraten of my office,

we are revising our January 30,2008 FOIA request to withdraw certain items and

revise certain items. We will restrict our request to the following items (the

numbers below correspond to the numbers in our original request):

3. All documents relating to any claims for additional compensation or

requests for equitable adjustment submitted by USS-UBS International

under Contract SP0600-06-D-0391. (Note: This is a revision to the

original No, 3, which was limited to claims or REAs pertaining to

certain deliveries only),

4. All documents pertaining to DESC's review of, evaluation of, or decision

on, any claims for equitable adjustment submitted by USS-UBS

International under Contract SP0600-06-D-0391. (Note: This Is a

revision to the original No. 3, which was limited to claims or REAs

pertaining to certain deliveries only).

5. All documents relating to any payments by DESC of claims or requests for

equitable adjustment by USS-UBS International under Contract SP06QQ06-D-0391. [Note: This is more limited than the original No. 5, which

included documents pertaining to specific deliveries also).

6. All documents relating to any invoices or requests for payment by USSUBS International under Contract SP0600-06-D-0391 which DESC has

received but not yet authorized payment of as of the date of DESC's

response to this request,

8. Any modifications of Contract SP0600-06-D-0391 issued after P00003.

EXHIBIT

t

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 12 of 26
& Abramson

A Professional Corporation • Attorneys & Counselors at Law

Ms, Peraie C, Forehand

February 21,2008

Page 2

9. All documents relating to any pre-award survey (FAR 0,106) of USS-UBS

International pertaining to the award of either Contract SP0600-06-D-0391

or Contract SP0600-06-D-035L

10. All documents pertaining to any information received or developed prior

to award of Contract SP0600-06-D-0391 pertaining to the cost realism of,

or ability to perform at, the prices bid by USS-UBS International on Line

Item Nos. 765-61 (Sasebo MSC) or 774-61 (Naha, Okinawa).

11. The abstract of bids or Bid Evaluation Model pertaining to bids for Line

Item Nos, 765-61 (Sasebo MSC) or 774-61 (Naha, Okinawa) prior to

award of Contract SP0600-06-D-0391.

We will pay all applicable search and duplication costs which may be

incurred in responding to this request. Please notify us before these costs exceed

$300, Should you require any additional information or clarification, please call

me at (202) 293-8815 or e-mail me at ruscher@pecklaw.com. Thank you.

y

Ronald H, Uscher

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 13 of 26
AME&DMEMF DP SOLiCITATiDKiffliODlFiCATlON-OP CONTRACT

S.15BWBBT COM

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87JS Joba I.KtapatB fid., Sttfte 4950

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EtLATEKAi-ptrRSUiOH'TOTESMS&CONDmOKS OF CLAUSE U.aj-iCONTEACTTKKMS AND CONDITIONSIniatlX

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SP06WW35-W13

1>,P. 13B

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 14 of 26
W0004

1, OR March 8, 2007, USS-UBSsubmitterf a claim under Item 765-61 (Sasobo, Jupan)lnuoconiaata! wilhPAR

33,206 EOT $3,550,783,66 for costs incurred in teqtae to flm Government's request fcr surge capabilities to

meet requirement* thai did no tmtorialize. USS-UBSclaunad that it purchased ftwlloracef the anticipatal

mHgadvdnx the p8rfodDo»tnbw 2005 throu^ Wards 2007, whto it Edis^^ This claim

was processed TOtoc»ntrBclclmisBn,03-S(d)DISPUTCSBM FAR 52^3-1 DIOTOT^ •

2, £ttfBBaat io subsequent review of (be claim and responses from ofl concerned parties, tho Contracdng Officer

has determined Out He sabjeor claim is valid and (be Contractor win be paid the amount of $3,550,783.6&.

3, He Contractaf agiws Oat this modificalion settles all elates by the Ccmtoactor under tba contract relativs to

llna Item 765-61 arising oat of or in any way rotated to MiHtary Scolift Comraimil's rwjaeBt for mip capacity

during fiis period Noveajber 1, 2006 through Mwch 30, 2007, and hereby ftiHy, fittidfy and unconditionally

teleaaea ani 4lwl«^BB the Government torn a^f sad all HaW%, date», impact costs, d«oiw»fecsus8S of

action, •and'ilegal cxpsnsta, accrued, kaowa or untoown, wtakb flio Ccmtraotor has or might hove relating

thereto, including, without limitation, all obligations of the Governmeof fo make furthw payments or to carry

out any ftirthsr mdertajdogs. The Govemmeat reserves all rights under the ooftttact, including tut not Umited

to, the right to claim dcmages for any previous delivery of fuel.

4, AH oilier toros and conditions of the contract remain unchanged,

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 15 of 26
AMENDMENT OF SOLICIT«£J:

:3K/ OTXCATXQH OF COHTKACT

iDcooe PAGE Of PAGES

1 I 4

PQ0005

3. EFFECTIVE DATE

SEE BtOCK ISC

4. REQUISITION/PURCHASE R£Q. NO,

N / A

6- PROJECT NO.

CODE SPOSOO ADMINISTERED BY (if other than item 6)' CODE

BEFSNSB BNBRGr SUPPORT CENTER

8725 JOHH 3. KINSMAN ROMS, STOTE 4950

FOBT BSiVGIS, VS. 22060-6222

BUYER/ SYMBOL! FRANCIS VXJKfXS/

PHONSi (703)767-833* FAX* (703) 767-8506

PurcbaiB Program 1.3B

8, NAME AND ADDRiSS OF CONTRACTOR (NO,, street, city, county. State »nd 2P Code)

0SS-OBS INTERNATIONAL

PO BOX 579 QUEENS UVND

ATJ8, 4170

BIDDER CODE; 0101 CAGE CODE: ZBB12

8a, AMENDMENT OF SOLICITATION NO,

9t>. DATED (SEE ITEM 11)

108. MODIFICATION OF CONTRACT/ORDER NO.

SP0600-06-D-Q391

106, DATED (SEE ITEM 13)

21 SEP 66

ji. mis ITEM ^

f JTh^above numbered solicitation Is amended asset forth in Item 14. The hour and daft spedfiedfwreSlpt of OfSrs

f ] is extended, [ ] is not extended.

Offers must acknowledge receipt of this amendment prior to the hour and date specified in the soiicitation or as amended, by one of the foilowing

methods: (a) By completing Items 8 and 15, and returning copies of the amsndment; (b) By acknowledging receipt of this amendment on

each copy of the offer submitted; or (c) By separate letter or telegram which includes a reference to the solicitation and amendment numbers,

FAILURE OF YOUR ACKNOWLEDGMENT TO BE RECEIVED AT THE PLACE DESIGNATED FOR THE RECfilPT OF OFFERS PWOR TO THE

HOUR AW DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFBfcy virtue of this amendment you desire to change an offer

already submitted, such change may be made by telegram or tetter, provided each telegram or letter mates reference to the solicitation and this

amendment, and it is received prior to the opening hour and date specified.

12, ACCOUNTING AND APPROPRIATION DATA (if required)

13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACT/ORDERS,

IT MODIFIES THE CONTRACT/ORDER NO, AS DESCRIBED IN ITEM 14.

A. THIS CHANGE ORDER IS ISSUED PURSUANT TO; (SpacHy authority) THE CHANGES SET FORTH IN fTEM 14 ARE MADE IN THE CONTRACT

ORDER NO.JNJTeMIOA.

B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE ADMINISTRATIVE CHANGES (such as changes In payins office,

appropriaBon date, etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103{b5

C. THIS SUPPLEMENTAL AGREEMENT IS ENT6R6D PURSUANT TO AUTHORITY OF:

0, OTHER (Spscify type of modification and authority)

- Pussusne to Cl»us» H.OJ-5, CONTRACT WRMS t COHKMIQHB - COMMERCIAL ITEMS (B«nk»«) {DSSC JAM ZOOS) -

(HI! , TBiOJJNWKWI fOS, CWSS

E. IMPORTANT: Contractor |cj is not, [ ] is required to sign this document and return, . copies to the issuing office.

14, DESCRIPTION OF AMENDMENT/MODIFICATION (OrgantaKf by UCF »»e«on headings, Including »ollo!tai!on/comr»et subject matter whert feasible.)

SEE CONTISTOOTON P&QBS

EXHIBIT

Except 95 provided nerain, all farms and cortditfens of the document referenced in (lew 8A or 10A, as heretofore changed, remains unchanged and In full force ana effect

f 5A. NAME AND TITLE Of SIGNER (Type or print) 16A NAME OF CONTRACTING OFFICER

DEBORA D. WOOD

158. NAME OF CONTRACTOR/QFPEROR

BY

{Signature of person authoraed to sign)

we. OATB SIGNED 188. UNITED STATES OF AMERICA

_

(Signature of Contracting OfficerT"

18C. DATE SIGNED

NSN; TS4Q-01.152-6070 30-1 OS

PREVIOUS EDITION UNUSABLE

STANDARD FORM 30 (REV, 10-83)

Prescribed by GSA

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 16 of 26
SP0600-06-D-0391 Page mS 4

JfV'>'< m

1. WHEREAS, the Contractor, USS-UBS Privedores PTY (USS-UBS) and the Government have entered

into Contract SP0600-06-D-039! under date of 21 September 2006, together with any and all modifications,

changes, and supplements thereto (hereinafter referred to as the "Contract");

2, WHEREAS, the Contract contains the following items:

LINE DELIVERY

ITEM LOCATION

202-61 FREEMANTLE, AUSTRALIA

203-61 MELBOURNE, AUSTRALIA

204-61 SYDNEY, AUSTRALIA

516-61 TOWNSVILLE, AUSTRALIA

516-61A TOWNSVILLE, AUSTRALIA

S16-6IB TOWNSVILLE, AUSTRALIA

521 -61 DARWIN, AUSTRALIA

521-6IA DARWIN, AUSTRALIA

521-61B DARWIN, AUSTRALIA

525-61 CAIRNS, AUSTRALIA

525-61A CAIRNS, AUSTRALIA

525-6SB CAIRNS, AUSTRALIA

530-61 BRISBANE, AUSTRALIA

530-61A • BRISBANE, AUSTRALIA

530-61B BRISBANE, AUSTRALIA

533-61 PHUKET, THAILAND

555-61B SHANGHAI, CHINA

557-6IB QINDAO, CHINA

563-61 MUARA, BRUNEI

603-61 ORANJBSTAD, ARUBA

628-61 PUERTO LA CRUZ, VENEZUELA

641 -61 DA NANG, VIETNAM

642-61 HAIPHONG, VIETNAM

643-61 HO Cffl MINE, VIETNAM

660-61 COLUMBO, SRI LANKA

661 -61 KOTA KJNABALU, MALAYSIA

663-61 KUANTAN, MALAYSIA

664-61 LUMUT, MALAYSIA

672-61 SATTAHIP, THAILAND

673-61 NOUMEA, NEW CALEDONIA

673-611 NOUMEA, NEW CALEDONIA

765-61 SASEBO, JAPAN

774-61 NAHAS JAPAN

948-62 SASEBO, JAPAN

951-61 YOKOHAMA, JAPAN

960-61 MGKPO, SOUTH KOREA

960-62 MOKPO, SOUTH KOREA

983-61 MOMBASSA, KENYA

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 17 of 26
SP060G-06-D-0391

POQ00S

Page 3 of4

3, WHEREAS, the Contractor has defaulted repeatedly on orders, including the following:

ORDER

NUMBER

1236

1208

1117

105?

1028

1026

1025

102!

1016

814

746

ITEM

NUMBER

951-61

774-61

706-61

540-61

774-6!

774-61

774-61

951-61

948-62

948-62

672-61

DELIVERY

LOCATION

Yokohama, Japan

Nsha, Japan

Dakar, Senegal

Koror, Palau

Naha, Japan

Naha, Japan

Naha, Japan

Yokohama, Japan

Sasebo, Japan

Sasebo, Japan

Sattahip, Thailand

SHIP

NAME

USNS Victorious

MV Cory Chouest

USS Doyle

USS Fitzgerald

Westpac Express

USNS Victorious

Westpac Express

MV Sea Venture

MV Cape Jacob

MV Transpacific

Westpac Express

ORDER

DATE

02 GOT 2007

26 SEP 2007

01 SEP 2007

1 6 AUG 2007

10 AUG 2007

09 AUG 2007

09 AUG 2007

08 AUG 2007

07 AUG 2007

08 JUN 2007

17 MAY 2007

4, WHBREAS,,a. Pre-Award Survey requested by DESC-PHB has recommended "No Award" to the

Contractor on the following item:

ITEM NUMBER

603-61

LOCATION

Oranjestad, Aruba

PRODUCT

MGO

5, WHEREAS, the Contractor has repeatedly demonstrated that it does not understand the terms and conditions

of the contract, particularly by filing claims for ancillary charges to which, in accordance with the contract, it is

not entitled;

6, WHEREAS, Clause II ,03-5, CONTRACT TERMS & CONDITIONS • COMMERCIAL ITEMS (Bunkers)

(DESC JAN 2006) - Paragraph (ml), Termination for Cause, allows the Government to terminate for cause

contract items under swch circumstances;

7. NOW THEREFORE, as a result of the above-mentioned defaults and indications that the Contractor cannot

satisfactorily perform under the Contract, the Contract is hereby terminated for cause in its entirety in accordance

with Paragraph (m) of Clause 11,03-5, CONTRACT TERMS AND CONDITIONS - COMMERCIAL ITEMS

(Bunkers) (DESC JAN 2006), and USS-UBS' right to proceed further with performance of these items is terminated.

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 18 of 26
SP0600-06-D-0391 Page 4 of 4

8, The Government acknowledges that the contractor has no obligation to make further deliveries under the contract.

The Government reserves all rights and remedies under the contract and those provided by law, including, without

limitation, the right to claim damages for any previous delivery of fuel.

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 19 of 26
INTERNinONAL

Wednesday 07 March 2007

USB - UBS

International

Head Office

2/50 Borthwick Avenue

MurarrieQLD4172

Postal

PO Box 579

Morningside QUD 4170

Australia

Phone 61 739020800

Fax 61 7 3902 0600

Email tofo@upubsJnt.cpro

Web www. ussubs i ntcorn

ACN 084475 098 ~"

ABN 82 084 475 098

Sasebo Claim

EXHIBIT

5

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 20 of 26
INTERNATIONAL

Somclnj Ihg World

fam Auattalia

Wednesday, March 07,2007

Debora Wood

Contracting Officer

Defense Energy Support Center

8725 John J Kingman Rd

Ft. BelvoirVA 22060

USS-UBS

International

Head Office ~~"

2/50 BorthwFck Avenue

Murarrle Qld 4172

Postal

PO Box 579

Mornlngside Qld 4170

Australia

Phone 61 7 3902 0800

Fax 61 7 3902 0600

Small !nfo©ubsprov.com,au

Web www.ubsproKcom.au

ACN 084 475 098

ABN §2 084 475 098

RE: SP0600-W-D-0391 - JAPAN - Price Increase

Dear Debora,

Good afternoon, please find below a claim for a price increase in Japan Sasebo

I""1 ••-'.''.• • '-This happened late last year, and USS-UBS Int. did

not approach DESC for a claim even though massive losses were been incurred by this

closure USS-UBS Int had to buy and service US vessels' with domestic product, USSUBS tat, delivered every ship the amount requested and never let a delivery not happen

even though a huge loss due to a closure of a Japanese facility. This equates to;

$445,40MT in extra costs with no rebate available as this the Japanese Government rules

ad regs,

* The Japanese Government will not pay claims for rebates on domestic prices.

Total Loss for Sasebo during this closure; i

AH invoices are attached for your information

Taxes incurred as follows:

1. MOO TAX (USD350/MT)

2. VAT 5%

3. OIL IMPORT TAX (USD1,85/MT)

Australia Asia Oceania

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 21 of 26
Total MT cost - ' on average we incurred for a period of 2 months till we

could buy bonded MOO creating a huge loss in one month.

Other costs: - incurred by USS-UBS Int

We made and bought Flange because they are using a specia! shape flange,...USD

2,000,00 each

We bought hoses USD ! ,500 each

We hire the bunker crew, USDS, 000 (Coastal MOO barge is not for bunkers)

We want to move forward and find a resolution on the above problem which has now

started but at the end of the day unforeseen circumstances have occurred in Japan that is

no fault of USS-UBS Int. We request a price increase to cover major cost increases in the

Japan region on bonded stock, USS-UBS Int, has had to wear a rather large loss duo to

circumstances beyond our control

This is the information regarding the MOO production stoppage at the bonded stores:

fa Sasebo, we have had a facility close on us due to their refinery in Osaka, about

450miles tway from Sasebo. Cosmo Oil has decreased their refining ratio sharply

because they had a compliance problem in August, Moreover they have stopped MGO

sales (bonded). This also affects price in Sasebo due to huge Barge costs and supply

being limited to one other supplier of domestic product only.

Please find all my contact numbers 24hrs a day:

Thank you, for your valuable time.

Best regards.

Bill Rae

General Manager

USS-UBS Int,

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 22 of 26
ff*TERNAT!ONAL

USS - UBS INTERNATIONAL

PO Box 57i

MORNINGSIDE OLD 4170

Ph: 07 3902 0800

Fx: 07 3902 0600

ABN820844T5098 Tax Invoice 10039

Date 07.03,2007

Account* 1383

Customer

DEFENSE FINANCE & ACCOUNTING

SERVICE

Fuels Accting & Payments Div

Attn: DFAS CO-CVD8BA

Po Box 182317 COLUMBUS OH 432186251

P.O. No.

QTY

1

1

1

TERMS

10 Days

REP

U.O.M, DESCRIPTION

Port /Ship To:

DEFENSE FINANCE & ACCOUNTING SERVICE

SHIP NAME:

PORT;

JAPAN CONTRACT NO: SP060Q-Q6-D-Q391

SHIP DATE VIA PROJECT

PRICi AMOUNT GST

EACH CLAIM DATED 7TH MARCH, 2007 0,00

EACH USNS BRUCE HEEZEN

EACH USNS DAHL

1 EACH USNS WATSON

1 EACH USNSWATKINS

0,00

• ' 0,00

0.00

!'>"•!. '• • - 0.00

QUAUTY SSSySEB COWWHY

JAS.ANZ

BANKING ACCOUNT DETAILS:

ACCOUNT NAME: USS - UBS INTERNATIONAL

BANK NAME:

B.S.B:

ACCOUNT:

i: UNITED STATES DOLLARS

SALE AMOUNT

GST $0,00

TOTAL DUE (USD)

AMOUNT PAID

AMOUNT DUE

Code invoice .elf Pegs 1 of 1

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 23 of 26
USS . UBS INTERNATIONAL

PO Box 579

MORNINQSIDE QLD 4170

Ph: Of 3902 0800

Fx: 07 3802 0600

ABNBZ 864 475089 Tax Invoice 10464

Date 24/00/2007

Account # 1383

Customer

DEFENSE RNANOE & ACCOUNTING SERVICE

Fuels AccUr»| & Payments Dlvf

Attm'DFAS CO-CVDBBA

Pa Box 182317 COLUMBUS OH

432188261

Port /Ship To !

CONTRACT NO; SP0600-08-D-0391

P.O. No, TERMS

10 Days

REP SHIP DATE VIA CUE DATE

•nremcoDE QW O.O.RS. DESCRIPTION PRICE AMOUNT GST

ORAL ORDER AS PER ATTACHED AMENOMEMT NO

POOOSM

»,783.663,890,?8aB8. &QQ

0,00

BANKINS ACCOUNT OETAIU3;

ACCOUNT NAME USS . UBS INTERNATIONAL

BANK NAME: NATIONAL AUSTRAUA BANK

B,S,B; 084-391

ACCOUNT! 48S07-38B3

Please note tnvolee to: UNITED STATES DOLLARS

SALE AMOUNT $8,880,783,60

esT f 0,00

TOTAL DUE (USD) $3,660,783»S8

AMOUNT PAID $0,00

AMOUNT DUE $3,660,783,88

Code!rwQtee.elf 26/09/2007 3'SS'AS PM Pag

EXHIBIT

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 24 of 26
IP*

K

not or Mats I 1 a

tw/onrvn inure

tl/A,

tltSUESKT CMS

ATTW: fiwtlt Mtuphj/DBSC-FHB

Defense Stogy Support Cesfer

cots :L

UBS PRDVEBORES PW LIB

MIS 4172

Bldiler Codw DlOl

FAILURE OP YDUR

AaiNOWtEOMHJTTO BE.REO2VH) ATTHB JWOlDBSKBWmOFOtVTUB RllCEtPT0? OPfERS OUOATO THB HOUR AND PATH

tftotlrt

B. Accowrotq «ojif rn^RimoaDflrApBo«»3 SEE PAGE 2

13, fjfm mm APPLIES ONIY TO MODIRCATIOI® OP OONTRAIJTSORBIRS,

,urF rfjpjjg»TOB coamf^iomM tto, A^ pEeoRtegp w TOM f4t

- rBRSUAMTTO TERMS <t CONDCnONS OP CLAUSE U.B3-J CONTIUCT T£Rr»W AMD CONDITIONS -

COMMERCIAL !TBA!S (EOmOCRSJ (DESC JAN JOOQ, (d> D1SPOTES

HiN3a(M»wmoFMi8mn>nwooiRimKM|Oq)M«^^

OVERSBASBBNKEES PJ1, UB

'SEE PASS 2

DEBORAD.WOOB

ItCMXEBOHIO

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 25 of 26
«»r —-

W45BW

1, Os Man* 8, 2007, U&S-UBS SBbraittedf aoWnnnder Itatn 765-51 (Sasebo, Japan) ia accordance with EAR

33,206 for $3,S50,783,6§ fiw costs inetured ia reejtonse to fl» GoveroiDsat's tsgaesi fer surge capabilities to

me«t refpfecaente But did not Materialize. USS4BS clsimBd ftatitpnroteed ftel to meettise aatfeipatej

surga during the period pecetnber 2005 through f^arch 2007, whioh it EubsKqucnlly sold ai a lora. This claim

was pjocesssa pwia coatoot islausB H.(S-S(d) DSPUTES find EAR. 52 J33-1 DISPUTES. •

2, Pursuani io mibgequont reviBW of the claim sod response from aD concerned parties, the Contracting Officer

te determined Out tie subject claim is vaEd and flu: Contractor will be paid the amount of $3,550,783.66.

YCyr/UL SUM to be mlAs S3.SSO.7I3.6S

3, He Confractw egrets tbat tills modificelioa settles alt elate by the Coalraotor oader tho contact relative to

Hue Ben 70-S1 arising oat of or to any wayxeiated to MiBtejy SesJIft tejuoiaad's wqpeet for swgB capaeliy

during the period NovcuibBr 1,2006 through March 30, 2007, sad hereby fully, finally raid unconditionaJly

rctaManddisolwgMtheGovwm^ftcmaByMd^

BCtiofl, and-lcgal expenses, accrued, known, or wstaowii, wiiicb tht» Contrsotor has or aij^it have relating

thereto, including, without limitation, all obligations of ths Goveniraonf Io make further payments or to cany

out any flnttammlsrtBldBgs, The dovenuaent reserves aD rights under the contact, lastedingTmtirat ItaJted

to, the rtghtto clafan dmnagos for any psevious deiivwy of fcel,

4, Alioihertcnns and condidons of Ihc contract remain unchanged.

Case 1:07-cv-05798-CM-HBP Document 40 Filed 05/20/2008 Page 26 of 26