ASBCA 63407

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Superior Maritime Services, Inc. ) ASBCA No. 63407 ) Under Contract No. HTC711-19-D-W034 ) APPEARANCE FOR THE APPELLANT: Mr. Dan Wittenberg Vice President APPEARANCES FOR THE GOVERNMENT: Caryl A. Potter, III, Esq. Air Force Deputy Chief Trial Attorney Nicholas T. Iliff, Jr., Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE ARNETT This appeal arises from a commercial services contract awarded by the U.S. Air Force (the government or Air Force) to appellant Superior Maritime Services, Inc. (Superior) under which Superior shipped cargo from Houston, TX to Diego Garcia and incurred additional costs at the port due to delayed receipt of cargo. The government contends that Superior mistakenly relied upon unauthorized instructions from the government shipper and made a business decision to wait for the delayed cargo. The Board has jurisdiction over this appeal pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. The parties elected to submit this appeal on the record pursuant to Rule 11 and requested that the Board decide entitlement only. Because the government delayed arrival of the fuel pod cargo at the port of Houston causing Superior to incur additional costs, the appeal is sustained, in part. The container stuffing portion of Superior’s claim was withdrawn and is dismissed.  FINDINGS OF FACT The Contract: 1. On July 9, 2019, the government awarded an indefinite quantity commercial services contract for ocean and intermodal 1 distribution services to Superior. The contract included a base year and four option years. (R4, tab 1 at 1, 3-6) 2. On June 10, 2021, the government issued a Request for Quote for a One- Time-Only (OTO) booking for movement of 64 pieces of breakbulk (i.e. non- containerized cargo) and containerized cargo door-to-port from Houston, TX to Diego Garcia, an island in the British Indian Ocean Territory (R4, tabs 3, 14 at 4, 1 at 104, 228). On June 17, 2021, the government awarded OTO booking GUSIO2 to Superior (R4, tab 14). The booking indicated the cargo would be available June 16, 2021, with a Required Delivery Date (RDD) of September 4, 2021 2 (R4, tab 14; gov’t br. at 2). 3. The cargo included numerous pieces of crane equipment, a tractor, and four massive fuel pods. Superior was to pick up all cargo in Houston except for the fuel pods which it had to transport by truck from Rancho Cordova, CA to the port of Houston. (App. supp. R4, tabs 2-3) 4. The booking stated, “The actual cargo booking dictates the cargo movement” (R4, tab 14 at 2). Emphasized in bold red lettering, Special Instruction No. 5 stated, “All pieces must travel together to maintain unit integrity.” Special Instruction Nos. 6-7 noted that the cargo included hazardous material. (R4, tab 14 at 4) The stated performance requirement was that “all cargo booked under this contract shall successfully move in accordance with the terms of the contract” (R4, tab 1 at 35). 5. Mr. Bryan Slutman of the U.S. Naval Research Laboratory was identified as the Shipper Point of Contact (POC) and Consignee POC for the fuel cargo (app. supp. R4, tab 8 at 3-4). He was neither the contracting officer nor his or her representative (COR) (gov’t br. at 9). 1 For intermodal service (i.e., transportation by more than one mode of transportation), the contractor maintains responsibility and liability for the entire movement until delivered to the final destination (R4, tab 1 at 231). 2 While the booking reflects a RDD of August 9, 2021 (R4, tab 14 at 2), the parties consistently treat the RDD as September 4, 2021 (R4, tab 82 at 1; gov’t br. at 2). 2 Vessel loading, cargo delay, and shifting: 6. On July 15, 2021, Superior’s chartered vessel arrived in the port of Houston and began loading cargo on the morning of July 16, 2021 (R4, tab 8 at 3). Late afternoon on Friday July 16, 2021, Superior notified the vessel operator that the fuel pod cargo “will probably not be in the port until July 18 PM/July 19 AM. Please order your labor accordingly.” (R4, tab 37 at 6) 7. The empty fuel pods were to be transported via truck approximately 2,000 miles from California to Houston, Texas and filled with fuel at the port before being loaded onto the vessel (gov’t br. at 3).