Supreme Foodservice GmbH ( 2021 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of - )
)
Supreme Foodservice GmbH ) ASBCA Nos. 57884-QUAN, 58666-QUAN
) 59636-QUAN, 61361-QUAN
)
Under Contract No. SPM300-05-D-3130 )
APPEARANCES FOR THE APPELLANT: Philip J. Davis, Esq.
John R. Prairie, Esq.
Rand L. Allen, Esq.
Tara L. Ward, Esq.
J. Ryan Frazee, Esq.
Wiley Rein LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq.
DLA Chief Trial Attorney
Steven C. Herrera, Esq.
Kari L. Scheck, Esq.
J. Maxwell Carrion, Esq.
Trial Attorneys
DLA Troop Support
Philadelphia, PA
OPINION BY ADMINISTRATIVE JUDGE O’CONNELL
In the Board’s May 27, 2020, post-hearing decision, we remanded to the parties
for a limited quantum determination. Specifically, the Board remanded for the parties to
calculate final truck rates based on our various findings. In addition, we directed the
parties to calculate the net amount due a party after consideration of the final truck rates
and government withholdings. Supreme Foodservice GmbH, ASBCA No. 57884 et al.,
20-1 BCA ¶ 37,618, recon. denied, 20-1 BCA ¶ 37,716.
In a January 29, 2021, joint letter to the Board (jt. ltr.), the parties reported that
they had completed these calculations and requested that the Board issue an order
adopting their quantum amounts. The Board grants this request, as follows.
Final Truck Rates
For the period from December 2005 until December 14, 2012, the final rate is
$0.23 per pound. During this period, Supreme delivered 2,392,143,150 pounds of
Premium Outbound Transportation (POT) cargo. It is entitled to POT fees of
$550,192,924.50 for this period. (Jt. ltr. at 1-2)
From December 15, 2012 to December 14, 2013, the final rate is $0.24 per pound.
During this period, Supreme delivered 380,068,757 pounds of POT cargo. It is entitled to
fees of $91,216,501.68 for this period. (Jt. ltr. at 1-2)
Gross trucking quantum is $641,409,426.18 1 (jt. ltr. at 2).
Net Amount Due
As a result of the findings in the Board’s May 27, 2020, opinion with respect to
rotary and fixed wing deliveries and the above determination of trucking quantum,
Supreme is entitled to a total of $1,369,618,849.55 in POT fees2 (jt. ltr. at 2).
DLA paid Supreme $1,767,473,638 for POT. Supreme Foodservice GmbH, 20-1
BCA ¶ 37,618 at 182,631. (Jt. ltr. at 2) Thus, DLA overpaid Supreme by
$397,854,788.453 (id.) The government subsequently withheld more than this amount
from payments to Supreme. Specifically, it withheld $540,832,442.70 (id.). Of this
1 $550,192,924.50 + $91,216,501.68 = $641,409,426.18
2 $405,472,897.96 (rotary) + $172,785,730.61 (rotary with government provided fuel) +
$149,950,794.80 (fixed wing) + $641,409,426.18 (truck)
= $1,369,618,849.55. Supreme Foodservice GmbH, 20-1 BCA ¶ 37,618at 182,635-36; (jt. ltr. at 2)
3 $1,767,473,638 - $1,369,618,849.55 = $397,854,788.45
2
withheld amount, the government is entitled to retain $397,854,788.45. Supreme is
entitled to the remainder, $142,977,654.254 (id.).
Dated: March 2, 2021
MICHAEL N. O’CONNELL
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
RICHARD SHACKLEFORD J. REID PROUTY
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
4 DLA states in the Joint Letter that it has claims totaling $88,494,087.78 against
Supreme in three pending appeals (ASBCA Nos. 60250, 60309, and 61370) and
that it anticipates that the Defense Finance and Accounting Service will continue
to withhold from payment to Supreme this amount, as well as any applicable
interest or fees on the $397,854,788.45 overpayment (jt. ltr. at 2). The Board
expresses no opinion with respect to either the merits of ASBCA Nos. 60250,
60309, and 61370, or the government’s entitlement to interest or fees on the
overpayment.
3
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA Nos. 57884-QUAN,
58666-QUAN, 59636-QUAN, 61361-QUAN, Appeals of Supreme Foodservice GmbH,
rendered in conformance with the Board’s Charter.
Dated: March 3, 2021
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
4