William J. Honan

Michael J. Frevola

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.

07 Civ. 5798 (CM)

AFFIDAVIT OF

MICHAEL J. FREVOLA IN

SUPPORT OF PLAINTIFF'S

OPPOSITION TO DEFENDANTS'

MOTION TO VACATE

MARITIME ATTACHMENT

)

) ss:

STATE OF NEW YORK

COUNTY OF NEW YORK )

MICHAEL J. FREVOLA, being duly sworn, deposes and says:

1. I am a member of the law firm Holland & Knight LLP, attorneys for Plaintiff

Wilhelmsen Premier Marine Fuels AS ("Wilhelmsen"), and I am fully familiar with the facts in

this case.

2. This Affidavit is made in support of Wilhelmsen's opposition to the Defendants'

application to vacate this Court's Order of Attachment issued in this proceeding. The statements

made in this affidavit are based upon my personal knowledge.

Case 1:07-cv-05798-CM-HBP Document 21 Filed 09/20/2007 Page 1 of 5
3. In Defendants' memorandum in support of its motion to vacate the order of

attachment, and in the supporting affirmation of UBS's Mr. Bill Rae, UBS has claimed that it has

not been fully paid by the U.S. government for the bunkering services that were provided to U.S.

vessels by Wilhelmsen. UBS contends that it has not been fully paid because Wilhelmsen has

not provided UBS supporting documentation so that it can substantiate its claims to the U.S.

government.

4. UBS has been reciting this same position for a number of months. I was advised

in July 2007 by Wilhelmsen and my instructing lawyers in Norway that UBS was claiming that it

had not been paid by the U.S. government on the Wilhelmsen bunkerings. I asked a colleague in

my firm's Northern Virginia office to contact the Defense Energy Support Center ("DESC")

because he previously had been employed by DESC. On July 31, my colleague reported that

DESC advised him that UBS had been paid for each of the vessels bunkered by Wilhelmsen. On

August 1, my colleague provided me with his point of contact at DESC, Ms. Jessica Madon at

the DESC Legal Office, so that I could pursue follow up questions directly.

5. On August 2, I called Jessica Madon to confirm that the U.S. government had

paid UBS in full on all of the outstanding Wilhelmsen bunkering claims. Ms. Madon had not

realized that the Wilhelmsen claims were related to 10 separate bunkering operations, so I

forwarded her a list so that she could check on each individual bunkering to determine whether

UBS had been paid. A true copy of my e-mail to Ms. Madon dated August 2 is annexed as

Exhibit 1.

6. On August 3, Ms. Madon called me and confirmed that the U.S. government had

paid UBS for all ten of the vessel bunkerings performed by Wilhelmsen on which UBS had not

paid Wilhelmsen.

Case 1:07-cv-05798-CM-HBP Document 21 Filed 09/20/2007 Page 2 of 5
7. After UBS once again told Wilhelmsen that it was not being paid by the

government for Wilhelmsen bunkerings, I once again contacted Ms. Madon to confirm that UBS

had been paid for the 10 outstanding Wilhelmsen bunkerings. She responded by voice-mail,

stating that (a) the contracting officer had confirmed that none of the payments to UBS on

Wilhelmsen-supplied bunkers were delayed by UBS/government disputes; and (b) that UBS was

paid within 30 days of having submitted its invoices to the government for payment.

8. On Monday, September 17, I called DESC to determine whether I could get a

copy of the UBS/DESC contract. Ms. Madon and a colleague advised that they could only

possibly produce a redacted version (redacting proprietary information) and they would look into

it. They further directed me to the DESC website, desc.dla.mil, where a copy of the U.S.

government's bid solicitation for bunkers suppliers was located. Once on that page, clicking on

"Vendor Resources" gives a menu where the top item on the list is entitled "Solicitations."

Opening "Solicitations" gives another list of topics, on which list the "Ship Propulsion Fuels"

link should be opened. Once in "Ship Propulsion Fuels," the next item to be found is near the

bottom of the page underneath "AIRCARD/SEACARD Solicitation" - it is a line entitled

"Solicitations." Opening that link presents a page where the Overseas Bunkers ("O'seas

Bunkers") solicitation is listed at the top of the items available.

9. The Overseas Bunkers Solicitation Number given on the DESC website is

SP0600-06-R-0218. Opening that link provides the actual solicitation used by the government to

obtain UBS's bid to provide bunker services. A copy of the U.S. government Overseas Bunker

Solicitation downloaded from the DESC website (including pertinent amendments and

attachments) is annexed as Exhibit 2.

Case 1:07-cv-05798-CM-HBP Document 21 Filed 09/20/2007 Page 3 of 5
10. The actual UBS/DESC contract has a solicitation number of SP0600-06-R-0218.

I have annexed as Exhibit 3 a true copy of the cover page of the UBS/DESC contract (the only

page that Wilhelmsen possesses), which shows the solicitation number in Block 5 at the top right

of the page. Thus, the Overseas Bunker Solicitation is the contract on which UBS bid to obtain

its government contract.

11. Reviewing the solicitation reveals that the bidder is notified multiple times that its

bid must incorporate all expenses into its bid in order to provide the government with a flat FOB

bid rate for the bunkering services:

SHIPS' BUNKERS. Unless otherwise stated, the supplies shall be furnished

f.o.b. destination as ships' bunkers into various types and sizes of U.S. military

and federal civilian vessels for immediate consumption by the vessel. Unit prices

are for product delivered inclusive of all delivery charges.

Exhibit 2, Page 2 of 76 (emphasis supplied).

NOTE: Offer prices must be "as delivered." Prices should include all delivery

costs, applicable taxes (except those to be listed separately on invoices), and any

other charges, given in US dollars per Metric Ton.

Exhibit 2, Page 8 of 76 (emphasis supplied).

F.O.B. DESTINATION (NOV 1991)

(a) The term "f.o.b. destination" as used in this clause, means -

(1) Free of expense to the Government, on board the carrier's conveyance,

at a specified delivery point [here, the nominated vessels] ... .

* * *

(b) The Contractor shall -

* * *

(6) Pay and bear all charges to the specified point of delivery.

Exhibit 2, Page 58 of 76 (emphasis supplied).

Case 1:07-cv-05798-CM-HBP Document 21 Filed 09/20/2007 Page 4 of 5
12. UBS has contended that its property was not attached in New York and that this

Court should not assert jurisdiction over UBS. I have annexed as Exhibit 4 a true copy of the

transcript of the scheduling conference held before the Court on September 7, 2007 for purposes

of referring to it in responding to UBS's contentions.

WHEREFORE, it is respectfully requested that this Court deny the Defendants' motion to

vacate the Order of Attachment issued in this proceeding, and grant such other and further relief

to the Plaintiff as may be appropriate.

Sworn to before me this

20th day of September, 2007

Notary Public

Ramos

Michael J/ Frevola

#4807446 vl

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