September 22, 1997 GSBCA 13838-RATE In the Matter of STAPP TOWING COMPANY, INC. Van M. Davidson, General Counsel of Stapp Towing Company, Inc., Dickinson, TX, appearing for Claimant. Jeffrey J. Thurston, Director, Office of Transportation Audits, General Services Administration, Washington, DC, appearing for General Services Administration. Col. James F. Quinn, Staff Judge Advocate, Department of the Army, Headquarters, Military Traffic Management Command, Falls Church, VA; and Karen E. Schools, Office of General Counsel, Defense Logistics Agency, Defense Fuel Supply Center, Ft. Belvoir, VA, appearing for Department of Defense. GOODMAN, Board Judge. Claimant, Stapp Towing Company, Inc., requests review of a decision of the General Services Administration (GSA) Office of Transportation Audits regarding a deduction by GSA to a carrier bill in the amount of $15,319.10. The Defense Logistics Agency (DLA) is an agency of the Department of Defense responsible for the supply of combat support items to the military services. The Defense Fuel Supply Center (DFSC) is a component of DLA responsible for the worldwide supply and management of petroleum and related services for the Government. As part of its mission, DFSC arranges for the transportation of Government-owned fuel through an Army organization known as the Military Traffic Management Command (MTMC). The Defense Fuel Region-Americas (DFR-A), a subordinate activity of DFSC, coordinates the transportation of bulk fuel at the local level with the carriers to which MTMC has awarded one- time spot movements or long-term barge contracts. During 1994, claimant submitted bids for spot movements of Government-owned fuel. Claimant's home port is located in Dickinson Bayou, approximately twenty-five miles south of Houston, Texas. MTMC awarded claimant barge shipment S9004 on January 20, 1994, for pickup of a load of Government-owned jet fuel at Barrett Refining in Vicksburg, Mississippi, on January 24, 1994. On January 24, 1994, DFR-A canceled the tender contract for bulk fuel, while the shipment was in transit, before the fuel reached its destination. The vessel and the two barges in tow required 24 hours and 45 minutes to travel 171 miles to the point where the shipment was canceled, and 118 hours and 45 minutes to return. Claimant states that the duration of the return trip was the result of encountering high winds and fog. The tender contract contained the following clause: EQUIPMENT ORDERED BUT NOT USED: When equipment is placed for loading on the orders of the Government, and such orders are subsequently cancelled, and equipment is released by the Government, charges will be assessed at the maximum hourly demurrage rate of $250.00 per hour. Charges will be computed beginning on the hour and date the equipment departs from the point of dispatch and will continue until the hour and date the equipment returns to the home terminal or subsequent loading point. Release may be accomplished by telephone and confirmed in writing. Charges cannot exceed the single trip requested total freight charges for this movement. Documentation to support this claim must be submitted in writing as proof of equipment ordered and not used. The Government was billed $35,875 by claimant and paid that amount. On November 29, 1995, the GSA OTA deducted $15,319.10 from the payment. The basis for the deduction was stated as "weather and fog deduction not applicable." Claimant requested review by this Board of this action. DFSC filed an agency report which asserts that the time the vessels (the tow and two barges) were in transit to the home station could not be wholly attributable to weather conditions and should not be compensable time under the above clause. The agency report refers to various weather reports and alleges that the reference to "doubling up" in the boat's logs referred to the addition of two barges that were added to the tow on the return trip which would also contribute to a delayed return. [T]he five days . . . cannot be wholly, and perhaps not even partially, attributable to the weather. Rather, it appears that at least some of the delay was caused by Stapp's decision to wait for two barges that were not part of the equipment ordered but not used . . . before completing the voyage home. Thus, much of the time for which Stapp is charging the Government is not attributable to the cancellation of the order. GSA OTA concurred in the conclusions reached by DFSC, stating that "we agree that the documentation submitted by DFSC confirms the weather conditions were not the primary cause for the delay in arrival at home terminal." In response, claimant first emphasizes that the original reason for the deduction was that weather delays were not compensable under the Equipment Ordered But Not Used (EOBNU) clause. Claimant asserts that the clause makes no exception for delays resulting from weather, and that the total time spent to return to the home port is therefore compensable. In Stapp Towing Co., Inc., ASBCA 41585, et al., 94-1 BCA  26,465 (1993), this same clause with substantially similar language was interpreted. In that case, the Armed Services Board of Contract Appeals stated: [The EOBNU clause] requires that when the Government orders equipment but subsequently cancels the order, the Government will pay the contractor the hourly demurrage rate from the time the equipment departs until it returns or arrives at its next loading point. . . . [W]e view it as an alternate rate of compensation from the per barrel rate to be used if the fuel was moved by Stapp. In the clause, authored by the Government, in exchange for the right to cancel the contract, the Government agrees to pay Stapp on an hourly basis if such cancellation right is exercised. Whether such a provision is prudent . . . is not for us to determine. 94-1 BCA at 131,691-92. The plain language of the clause contains no exceptions for weather caused delays (or any other type of delay) encountered during the return to the home port. As the Armed Services Board has held, the clause is merely an agreement to pay an alternate rate of compensation in the event the order is cancelled. Whether this is a prudent agreement is not for this Board to determine. It was not until this matter was submitted for review that the agency alleged that the travel time en route to the home port could not have been wholly attributed to weather conditions. Claimant has submitted information to support its position that the return transit time was wholly attributable to weather conditions and therefore compensable under the clause. Claimant rebuts the allegations of OTA and DFSC by a submission which includes an affidavit of the master of the vessel. He alleges: As a regular part of my duties as Master I am required to maintain daily logs of the vessel[']s activities. These logs must be accurate and complete and reflect the significant events of the a [sic] twenty-four hour period. . . . When the trip was canceled I received orders to return to Dickinson Bayou. I tried to return as quickly as was possible considering the weather conditions. I have read the Agency's report and I have the following comments . . . . The Agency report relies on the Weather Station readings at various points along the Gulf Coast . . . . People in this industry use Weather Station reports for a general guideline but do not rely upon such reports as always being accurate for the local weather conditions the vessel is experiencing. In January, February, and March of each year fog is common on the IntraCoastal canal in the morning and it is patchy and unpredictable. These months are the foggiest of the year. The weather conditions the Agency relies upon in its report . . . do not reflect the weather conditions that I experienced on the water, which are reflected in my Boat logs. The Weather Stations that the Agency relies on are at some distance from the IntraCoastal Canal, although the Galveston Station in the Agency report reflects on 27 and 28 January 1994 "peak winds of 31-35 miles per hour" which was consistent with my vessel being wind bound at various times on those two days. The Agency report argues that "doubling up" meant that I added two more barges to the tow in the process of returning to Dickinson Bayou. This is totally wrong. . . . The term "doubling up" means to change the shape of the tow from barges in a line to being positioned barges side by side. A doubled up tow is a vessel formation that is one that is used when weather conditions are difficult. A doubled up tow is more maneuverable and is easier to handle when the wind is blowing. Instead of having 600 feet of tow to catch the wind it is reduced to 300 feet. Affidavit of Donald W. Labove (Labove Affidavit) (Mar. 5, 1997)  2-5. These assertions are a credible explanation of the length of time required to return to the home port. As the EOBNU clause contains no provision for reducing the charges pursuant to that clause for weather delays, claimant is entitled to payment of $15,319.10, which was previously deducted. _____________________ ALLAN H. GOODMAN Board Judge