Tesoro Hawaii Corp. v. United States

United States Court of Appeals for the Federal Circuit
04-5064

TESORO HAWAII CORPORATION, TESORO ALASKA COMPANY and HERMES
CONSOLIDATED, INC., d/b/a Wyoming Refining Company,

Plaintiffs-Appellants,

v.

UNITED STATES,

Defendant-Appellee.

J. Keith Burt, Mayer, Brown, Rowe & Maw, LLP, of Washington, DC, argued for
plaintiffs-appellants. With him on the brief were Michael E. Lackey, Jr., Gary A.
Winters, and Monica A. Aquino.

Steven J. Gillingham, Senior Trial Counsel, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for
defendant-appellee. With him on the brief were Peter D. Keisler, Assistant Attorney
General; David M. Cohen, Director; and Kyle Chadwick, Trial Attorney. Of counsel on
the brief were Bernard A. Duval, Counsel; and Howard M. Kaufer and Donald S.
Tracy, Assistant Counsel, Office of Counsel, Defense Energy Support Center, of Ft.
Belvoir, Virginia.

Ralph C. Nash, Jr., of Washington, DC, for amicus curiae Chamber of
Commerce of the United States. Of counsel on the brief was Robin S. Conrad,
National Chamber Litigation Center, Inc., of Washington, DC.

Carolyn F. Corwin, Covington & Burling, of Washington, DC, for amicus curiae
American Petroleum Institute. With her on the brief were Robert A. Long, Jr. and
James R. Dean, Jr. Of counsel on the brief was Douglas W. Morris, American
Petroleum Institute, of Washington, DC.

Roy T. Englert, Jr., Robbins, Russell, Englert, Orseck & Untereiner LLP, of
Washington, DC, for amicus curiae National Petrochemical & Refiners Association.
With him on the brief were Donald J. Russell and Max Huffman. Of counsel on the
brief was Robert G. Slaughter, National Petrochemical & Refiners Association, of
Washington, DC.

Appealed from: United States Court of Federal Claims

Senior Judge Eric G. Bruggink
Judge Lawrence J. Block
 United States Court of Appeals for the Federal Circuit

04-5064

TESORO HAWAII CORPORATION, TESORO ALASKA COMPANY
and HERMES CONSOLIDATED, INC.,
d/b/a Wyoming Refining Company,

Plaintiffs-Appellants,

v.

UNITED STATES,

Defendant-Appellee.

_______________________

DECIDED: April 26, 2005
_______________________

Before RADER, BRYSON, and GAJARSA, Circuit Judges.

GAJARSA, Circuit Judge.

Tesoro Hawaii Corporation and Tesoro Alaska Company (collectively "Tesoro")

and Hermes Consolidated, Inc. ("Hermes") jointly petitioned this court for permission to

appeal certified orders of the United States Court of Federal Claims in the separate

proceedings, Tesoro Hawaii Corp. v. United States, 58 Fed. Cl. 65 (2003), and Hermes

Consol., Inc. v. United States, No. 02-1460 C, 2003 U.S. Claims LEXIS 312 (Nov. 3,

2003). We granted Tesoro and Hermes permission to pursue interlocutory appeal of

issues relating to the legality of contract price determinations made by the Defense

Energy Support Center ("DESC"). Tesoro Hawaii Corp. v. United States, 89 Fed. Appx.

732 (Fed. Cir. 2004). Because DESC's price setting mechanism was consistent with
the applicable regulations, we reverse the decisions of the trial court holding that

DESC's practice was illegal.

I. BACKGROUND

DESC is the principal purchaser of military fuel for the United States Department

of Defense. Between 1983 and 1999, Tesoro entered into thirty-six contracts with

DESC to supply the government with military jet fuel. Hermes entered into nine

comparable contracts with DESC between 1988 and 1994.

Each of the DESC military fuel contracts contained a clause that adjusted on a

monthly basis the prices paid for the fuel supplied. The Economic Price Adjustment

("EPA") clause provided that "[t]he prices payable under this contract for listed items

shall be the base [bid] price for the listed item increased or decreased by the same

number of cents, or fraction thereof, that the reference price increases or decreases per

like unit of measure from the base reference price." The reference prices to which the

price adjustments were tied were drawn from market publications. Until June 23, 1994,

DESC drew its EPA reference prices from the market publication known as the

Petroleum Marketing Monthly ("PMM").

The PMM, which is published by the Department of Energy ("DOE"), is a report

compiling the monthly average sales figures for specified fuels for five regions known as

Petroleum Administration for Defense Districts ("PADDs"). All refiners, including Tesoro

and Hermes, are required by law to submit monthly sales data to the DOE, which then

compiles the data to report the monthly average sales prices per PADD for various

products. The compilation and computation process takes approximately three months,

which means that the PMM report for April's sales figures is typically published in mid-

04-5064 2
July. In order to accommodate this lag time, the DESC contracts tied to the PMM

provided for an interim reference price tabulation subject to final adjustment upon

publication of the appropriate PMM.

In 1992, the Court of Federal Claims issued a decision holding that DESC's use

of a PMM-based EPA clause was not authorized by the Federal Acquisition Regulations

("FAR"). MAPCO Ala. Petroleum, Inc. v. United States, 27 Fed. Cl. 405 (Fed. Cl. 1992).

Following the MAPCO decision, DESC received permission to deviate from the FAR's

provisions by obtaining individual and class deviations authorizing it to continue using

EPA clauses identical or similar to the one struck down in MAPCO. According to the

regulations applicable at the time, an individual deviation affects only one "contracting

action," 48 C.F.R. § 1.403 (1995), whereas a class deviation affects "more than one

contracting action," Id. § 1.404. Two of Tesoro's contracts were awarded pursuant to

individual deviations and three were awarded pursuant to class deviations.

Tesoro and Hermes filed suit in the Court of Federal Claims alleging that DESC

breached their fuel supply contracts by using unlawful EPA clauses that resulted in their

receipt of under-payments for the fuel provided. The complaints in both suits included

among their claims the charge that DESC's actions were per se illegal because the

PMM-based EPA clause was inconsistent with the applicable section of the FAR, Id.

§ 16.203. Tesoro also alleged that the deviations obtained by DESC were procedurally

deficient and therefore ineffective to permit the use of such clauses. The parties in both

suits filed cross motions for summary judgment on the claim of per se illegality. In its

motions, the government asserted that DESC's use of the EPA clause was legally

authorized and raised the equitable defense of waiver.

04-5064 3
 In Tesoro, the court resolved all issues in favor of the plaintiff holding that

DESC's initial use of its EPA clause was not authorized by the FAR; DESC's efforts to

obtain individual and class deviations were legally deficient and waiver could not apply

to Tesoro's claims as a matter of law. 58 Fed. Cl. at 69-75. In conjunction with its grant

of partial summary judgment, the court certified three questions for interlocutory appeal:

(1) Did DESC establish the price of fuel in violation of law by employing
economic price adjustment clauses indexed to PMM?
(2) Were DESC's individual or class deviations obtained in violation of law?
(3) Can DESC assert the defense of waiver to bar Tesoro from pursuing a
remedy for DESC's illegal fuel prices?

Tesoro Hawaii Corp. v. United States, No. O2-704C (Fed. Cl. Oct. 30, 2003) (order

certifying questions for interlocutory appeal).

In Hermes, the trial court also found that DESC's PMM-based EPA clause was

not authorized by the FAR, Hermes Consol., Inc. v. United States, 58 Fed. Cl. 3, 9-12

(2003), but determined that Hermes had waived its right to recover by completing

performance of the contracts with presumed knowledge of the illegality of their terms,

2003 U.S. Claims LEXIS 312, at *27-28. In conjunction with its grant of partial summary

judgment, the trial court in Hermes certified two questions for resolution on interlocutory

appeal: "(1) Was DESC's promulgation of the economic price adjustment clauses

indexed to the PMM unauthorized?" and "(2) May defendant assert the defense of

waiver to bar [Hermes] from pursuing a remedy for DESC's unauthorized fuel prices?"

Hermes, 2003 U.S. Claims LEXIS 312, at *35. Because both sets of certified questions

involve "controlling questions of law as to which there is substantial ground for

difference of opinion and for which an immediate appeal may materially advance the

ultimate termination of the litigation," this court granted Tesoro and Hermes (collectively

04-5064 4
"Appellants") permission to file their interlocutory appeal.1 Tesoro Hawaii Corp. v.

United States, 89 Fed. Appx. 732, 732 (Fed. Cir. 2004) (citing 28 U.S.C. § 1292(d)).

We have jurisdiction pursuant to 28 U.S.C. § 1292(c)(1).

II. DISCUSSION

This court reviews de novo the grant of a partial summary judgment by the Court

of Federal Claims. Allegheny Teledyne v. United States, 316 F.3d 1366, 1373 (Fed.

Cir. 2003). Likewise, we review certified questions of law without deference to the

decisions of the Court of Federal Claims. Vereda, Ltda. v. United States, 271 F.3d

1367, 1374 (Fed. Cir. 2001).

A. Governing Regulations

Specific guidelines governing the use by federal agencies of fixed-price contracts

with economic price adjustments appear in § 16.203 of the FAR. 48 C.F.R. § 16.203

(1994).2 FAR § 16.203-1 describes such contracts as providing "for upward and

downward revision of the stated contract price upon the occurrence of specified

contingencies." 48 C.F.R. § 16.203-1 (1994). The regulation authorizes the use of

three types of EPAs:

(a) Adjustments based on established prices. These price adjustments are
based on increases or decreases from an agreed-upon level in published
or otherwise established prices of specific items or the contract end items.

1
Resolution of the issues presented in the certified questions may also
impact the twenty-two other cases filed by plaintiffs similarly situated to Tesoro and
Hermes that are currently pending before the Court of Federal Claims. Hermes, 2003
U.S. Claims LEXIS 312, at *34.
2
The guidelines governing use of fixed-price contracts with EPAs appear at
§ 16.203 of the current FAR, but provisions not relevant to this case have been added
to those regulations with concomitant renumbering of the relevant portions. For ease of
reference, we refer to the codifications in effect at the time the contracts were entered
into.

04-5064 5
 (b) Adjustments based on actual costs of labor or material. These price
adjustments are based on increases or decreases in specified costs of
labor or material that the contractor actually experiences during contract
performance.

(c) Adjustments based on cost indexes of labor or material. These price
adjustments are based on increases or decreases in labor or material cost
standards or indexes that are specifically identified in the contract.

Id. The government asserts that the DESC's EPA clause is properly considered an

adjustment based on established prices as contemplated by section (a) of the

regulation.

Use of the clauses described in FAR § 16.203-1 is limited by FAR § 16.203-3,

which provides that:

A fixed-price contract with economic price adjustment shall not be used
unless the contracting officer determines that it is necessary either to
protect the contractor and the Government against significant fluctuations
in labor or material costs or to provide for contract price adjustment in the
event of changes in the contractor's established prices.

48 C.F.R. § 16.203-3 (1994). The interplay of § 16.203-1 and § 16.203-3 forms the

basis for Appellants' argument that the EPA clause used by the DESC is not authorized

by the FAR.

B. Parties' Arguments

Appellants assert that the term "established prices" in FAR § 16.203-1 should be

read as "contractor's established prices" in order to be consistent with the term found in

FAR § 16.203-3. Under this reading of the two sections, prices could only be adjusted

based on changes in the individual contractor's prices and not based on changes in

overall market prices. Appellants justify reading the regulations in this manner by

pointing to changes made in the regulatory scheme when the FAR was adopted in

1984.

04-5064 6
 Prior to 1984, the Defense Acquisition Regulation ("DAR") governed Department

of Defense procurements. The text of both FAR § 16.203-1 and FAR § 16.203-3

appeared in the DAR, but with the limitations of FAR § 16.203-3 preceding the

descriptive provisions of FAR § 16.203-1. Although the order of the DAR provisions

was changed when they were converted into the FAR, no substantive change in the

meaning of the provisions was intended. See 46 Fed. Reg. 42,303 (1981). Appellants

argue that based on the order in which the limitations and description sections appeared

in the DAR, the use of the term "contractor's established prices" in the limitation section

means that the word "contractor's" should be implied before the term "established

prices" in the description section. Believing it appropriate to imply the term "contractor's

established prices" into the description section of the DAR, Appellants argue that the

implication must be carried over to FAR § 16.203-1 in order to maintain the original

substance of the regulations.

The government asserts that Appellants' argument is inconsistent with the plain

meaning of the regulatory language. First, it challenges Appellants' attempt to insert the

word "contractor's" into sections of the regulations where it does not otherwise appear

as contrary to the presumption that the drafters' selective use of the phrases

"established price" and "contractor's established price" indicated that when "established

price" was used the word "contractor's" was intentionally omitted. Ad Hoc Comm. of

AZ-NM-TX-FL Producers of Gray Portland Cement v. United States, 13 F.3d 398, 401

(Fed. Cir. 1994) (stating that it is well established that where specific language is

included in one section of a statute but omitted from another, related section of the

same Act, it is generally presumed that the omission was intentional). The government

04-5064 7
also points to other sections of FAR § 16.203 that are inconsistent with Appellants'

reading of § 16.203-1.

As an indication that the term "established prices" in FAR § 16.203-1 includes

market prices, the government first focuses on FAR § 16.203-4. FAR § 16.203-4

specifies the conditions under which each type of EPA clause outlined by FAR

§ 16.203-1 may be used. 48 C.F.R. § 16.203-4 (1994). The four types of EPA clauses

addressed are: (1) "Adjustment based on established prices – standard supplies" (FAR

§ 16.203-4(a)); (2) "Adjustment based on established prices – semistandard supplies"

(FAR § 16.203-4(b)); (3) "Adjustments based on actual cost of labor or material" (FAR §

16.203-4(c)); and (4) "Adjustments based on cost indexes of labor or material" (FAR §

16.203-4(d)). As the government notes, the headings used in FAR § 16.203-4,

consistent with the language of FAR § 16.203-1, address two types of adjustments

based on "established prices," and none based on "contractor's established prices."

The subsections addressing adjustments based on "established prices" for standard

and semistandard supplies include the requirement that the supplies "have an

established catalog or market price, verified using the criteria in 15.804-3." 48 C.F.R.

§ 16.203-4(a)(ii) & (b)(ii) (1994).

FAR § 15.804-3 governs price negotiations and prohibits contracting officers from

requiring submission of cost or pricing data if "the contracting officer determines that

prices are . . . [b]ased on established catalog or market prices of commercial items sold

in substantial quantities to the general public." 48 C.F.R. § 15.804-3(a)(2) (1994).

According to the regulation,

[e]stablished catalog prices must be recorded in a form regularly
maintained by the manufacturer or vendor. This form may be a catalog,

04-5064 8
 price list, schedule or other verifiable and established record. The record
must (i) be published or otherwise available for customer inspection and
(ii) state current or last sales price to a significant number of buyers
constituting the general public.

48 C.F.R. § 15.804-3(c)(1). "Established market prices" are defined as "current prices

that (i) are established in the course of ordinary and usual trade between buyers and

sellers free to bargain and (ii) can be substantiated by data from sources independent of

the offeror." 48 C.F.R. § 15.804-3(c)(2). The government argues that the regulatory

cross-references mean that the term "established prices" used in FAR § 16.203-4

should be understood to encompass both "established catalog prices" and "established

market prices" as defined by FAR § 15.804-3(c). Thus, adjustments based on an

established price should not be limited only to fluctuations in the prices of the individual

contractor, but may also include market fluctuations.

As further support for its expansive interpretation of FAR § 16.203-1, the

government relies on FAR § 16.203-2, which establishes the conditions under which a

fixed-price contract with an EPA clause may be used. FAR § 16.203-2 provides that:

A fixed-price contract with economic price adjustment may be used when
(i) there is serious doubt concerning the stability of market or labor
conditions that will exist during an extended period of contract
performance, and (ii) contingencies that would otherwise be included in
the contract price can be identified and covered separately in the contract.
Price adjustments based on established prices should normally be
restricted to industry-wide contingencies. Price adjustments based on
labor and material costs should be limited to contingencies beyond the
contractor's control.

48 C.F.R. § 16.203-2 (1994). Noting that this section also uses the phrase "established

prices," but not "contractor's established prices," the government argues that FAR

§ 16.203-2 indicates a preference that EPA clauses not be used to address contractor-

specific cost issues, but rather "industry-wide contingencies" and "contingencies beyond

04-5064 9
the contractor's control." Id. Accordingly, the government argues, FAR § 16.203-2

further undermines Appellants' reading of FAR § 16.203-1 to prohibit EPA clauses using

market-based references.

C. Prior Litigation in the Court of Federal Claims

Although this is the first time this court has directly considered the issue of

DESC's liability for its use of a market-based EPA clause,3 the Court of Federal Claims

has addressed the parties' arguments in nine cases prior to the two that serve as the

basis of this appeal.4 In the first such case, MAPCO, 27 Fed. Cl. at 409-10, the court

adopted Appellants' arguments and held that the meaning of "established prices" in

FAR § 16.203-1(a) is limited to "contractor's established prices" by reference to the

language of FAR § 16.203-3. In addition to the cited regulatory history of the FAR and

its connection to the DAR, the court based its decision on sections of the FAR that

provide standard language for EPA clauses. Id. at 410. The court cited the following

language from FAR § 52.216-2 as evidence that the terms "established price" and

"contractor's established price" are used interchangeably in those clauses:

3
This court has previously addressed the appropriate valuation
methodology for assessing a damages award to a fuel supplier stemming from DESC's
use of the market-based EPA clause. Barrett Refining Corp. v. United States, 242 F.3d
1055 (Fed. Cir. 2001). However, in Barrett, the government did not contest liability
either before the Court of Federal Claims or on appeal. Barrett, 242 F.3d at 1064;
Barrett Refining Corp. v. United States, 42 Fed. Cl. 128, 130 (1998).
4
Sunoco, Inc. v. United States, 59 Fed. Cl. 390 (2004); Navajo Ref. Co.,
L.P. v. United States, 58 Fed. Cl. 200 (2003); Williams Ala. Petroleum, Inc. v. United
States, 57 Fed. Cl. 789 (2003); Calcasieu Ref. Co. v. United States, 2003 WL 22049528
(Fed. Cl. July 31, 2003); Berry Petroleum Co. v. United States, No. 02-1462 (Fed. Cl.
June 10, 2003) (bench ruling); Phoenix Petroleum Co. v. United States, No. 97-315C
(Fed. Cl. April 30, 2003); La Gloria Oil & Gas Co. v. United States, 56 Fed. Cl. 211
(2003); Gold Line Ref., Ltd. v. United States, 54 Fed. Cl. 285 (2002); MAPCO Ala.
Petroleum, Inc. v. United States, 27 Fed. Cl. 405 (1992).

04-5064 10
 (a) The Contractor warrants that the unit price stated in the Schedule for
[offeror insert Schedule line item number] is not in excess of the
Contractor's applicable established price in effect on the contract date for
like quantities of the same item. . . . The term "established price" means a
price that (1) is an established catalog or market price for a commercial
item sold in substantial quantities to the general public, (2) meets the
criteria of subsection 15.804-3 of the Federal Acquisition Regulation
(FAR), and (3) is the net price after applying any standard trade discounts
offered by the Contractor.

Id. (emphases added). Of the ten cases after MAPCO where the Court of Federal

Claims has reached the issue of the legality of DESC's EPA clause, nine, including the

two instant cases, applied the reasoning of MAPCO and concluded that DESC's use of

a market-based EPA was not authorized by the FAR.5 Additionally, in Barrett Refining

Corp. v. United States, 242 F.3d 1055, 1064 (Fed. Cir. 2001), this court presumed

without deciding that the holding of MAPCO was correct.

One decision of the Court of Federal Claims has held differently. In Williams

Alaska Petroleum, Inc. v. United States, 57 Fed. Cl. 789 (2003), the court rejected

Appellants' argument and the reasoning in MAPCO as contradictory to the plain

meaning of the words used in the regulation. Id. at 796. The court in Williams

dismissed Appellant's interpretation of the FAR in light of the DAR on the grounds that

"[t]here is no more reason to say that the DAR contains an implicit term than to make

that claim about the FAR." Id. Applying the caveat that "price adjustments based on

established prices . . . be restricted to industry-wide contingencies" as articulated in

FAR § 16.203-2, the court held that "FAR § 16.203 not only permits adjustments to a

5
Sunoco, 59 Fed. Cl. at 394-95; Hermes, 58 Fed. Cl. 3, 11-12; Tesoro, 58
Fed. Cl. at 68-70; Navajo Ref., 58 Fed. Cl. at 205; Calcasieu Ref. 2003 WL 22049528
at *5; Berry Petroleum, No. 02-1462 (Fed. Cl. June 10, 2003) (bench ruling); Phoenix
Petroleum Co. v. United States, No. 97-315C, slip op. at 4 (Fed. Cl. April 30, 2003); La
Gloria, 56 Fed. Cl. at 214-15; Gold Line, 54 Fed. Cl. at 295.

04-5064 11
contractor's established prices to be based on market indexes, but in fact requires it."

Id. at 797.

D. Analysis

We agree with the court in Williams that the plain meaning of the regulatory

language contradicts Appellants' arguments and the holding of MAPCO and its progeny.

We construe a regulation in the same manner as we construe a statute, by ascertaining

its plain meaning. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414-15 (1945)

(focusing on the "plain words of the regulation" to ascertain the meaning of the

regulation); Lockheed Corp. v. Widnall, 113 F.3d 1225, 1227 (Fed. Cir. 1997) ("To

interpret a regulation we must look at its plain language and consider the terms in

accordance with their common meaning."); Whelan v. United States, 529 F.2d 1000,

1002-03 (Ct. Cl. 1976) ("The 'plain meaning' rules of statutory construction apply to the

interpretation of administrative regulations."). If we conclude that the terms of the

regulation are unambiguous, no further inquiry is usually required. Cox v. West, 149

F.3d 1360, 1363 (Fed Cir. 1998); Lockheed, 113 F.3d at 1227. When there is no

ambiguity in the meaning of the regulation, "it is the duty of the courts to enforce it

according to its obvious terms and not to insert words and phrases so as to incorporate

therein a new and distinct provision." Gibson v. United States, 194 U.S. 182, 185

(1904); see also United States v. Temple, 105 U.S. 97, 98 (1881).

The meaning of the regulations governing the use of EPA clauses is plain and we

reject Appellants' invitation to insert words into the regulation to alter that meaning.

Although the term "established price" is not expressly defined in FAR § 16.203, the

definition of the term in FAR § 15.804-3 is incorporated by reference. FAR § 15.804-3

04-5064 12
defines "established prices" to include contractor-specific prices, namely "established

catalog prices," and industry-based prices, namely "established market prices." As

indicated by FAR § 16.203-2 and FAR § 15.804-3, the policy behind requiring use of

"established prices" is to avoid contracts subject to the operational whims of individual

contractors.

Appellants' arguments that the addition of the term "contractor's" before

"established prices" in FAR § 16.203-3 requires that adjustments be based only on

changes in the prices charged by individual contractors eviscerates the regulatory

meaning of the term "established prices" and the policy reasons for using it. The

combination of the term "contractor's" with "established prices" in FAR § 16.203-3

indicates which "established prices" are relevant to a contracting action, but does not

exclude the subcategory of "established market prices." According to the interplay of all

four sections of FAR § 16.203, a "contractor's established price" may be established by

reference to either a catalog or market sources independent of the manufacturer or

vendor. See Vectra Fitness, Inc. v. TNWK Corp., 162 F.3d 1379, 1383-84 (Fed. Cir.

1998) ("statutory interpretation is a 'holistic endeavor' that requires consideration of a

statutory scheme in its entirety" (quoting United Sav. Ass'n v. Timbers of Inwood Forest

Assoc., 484 U.S. 365, 371 (1988))).

Appellants' arguments that the term "contractor's established price" is periodically

used interchangeably with the defined term "established price" does not change this

conclusion. The usage of the terms "contractor's applicable established price" and

"established price" in the language of the standard EPA clause in FAR § 52.216-2

explicitly reinforces the determination that "contractor's applicable established price"

04-5064 13
includes both forms of established prices provided for in FAR § 15.804-3. Even were

we to credit Appellants' interpretation of the regulatory history of the FAR and the DAR

and read the term "contractor's established price" into the language of FAR § 16.203-1,

there is still no reason to conclude that the regulations exclude the use of market-based

references to identify "established prices."

The regulations permit use of contracts that include adjustments based on

established prices, but do not limit those adjustments to changes only in the specific

prices offered by an individual contractor. Thus, DESC's use of market-based

references to determine adjustments to established prices was authorized under the

law.

Appellants also assert that DESC's use of an EPA clause tied particularly to the

PMM does not comport with the express requirements of FAR § 16.203-3. This

assertion is based on the legal premise that FAR § 16.203-3 limits price adjustments to

accommodations for one of two contingencies: "significant fluctuations in labor or

material costs" or "changes in the contractor's established prices." 48 U.S.C. § 16.203-

3. Relying on the language of MAPCO, Appellants claim that a PMM-based EPA clause

fails to address either of the "mischiefs" specified in FAR § 16.203-3, because the PMM

is an "amalgamation" of petroleum sales that does not reflect the product, the market, or

the price for the military fuel Tesoro and Hermes supplied.

The Court of Federal Claims in MAPCO concluded that DESC's use of the PMM

did not comport with the requirements of FAR § 16.203-3, because the PMM was not a

catalog, did not reflect any established catalog prices, and did not reflect any

established market. MAPCO, 27 Fed. Cl. at 410. The determination that PMM did not

04-5064 14
reflect any established market price was explained as follows: "The index is an

amalgamation of the previous month's petroleum sales data. It is not, as § 15.804-

3(c)(2) contemplates, determinative of any particular corporation's current prices."

MAPCO, 27 Fed. Cl. at 410. The court went on to apply dictionary definitions of the

term "establish" to conclude that:

[f]or a price to be 'established' therefore, a purchaser would have to have
assurance that he could go to a particular vendor and insist on an
advertised price. An average of month-old sales in no sense creates an
established price. The index itself does not reflect any specific vendor's
current price. In sum, the index at issue is neither the contractor's, nor
does it reflect an established price.

MAPCO, 27 Fed. Cl. at 410. In both Tesoro and Hermes, the court adopted the

reasoning of MAPCO and concluded that DESC's adjustment of fuel prices by reference

to the PMM did not comport with the FAR because such a practice was not designed to

meet the purpose identified in FAR § 16.203-3, namely accommodating significant

fluctuations in labor or material costs or changes in the contractor's established prices.

Tesoro, 58 Fed. Cl. at 69; Hermes, 58 Fed. Cl. at 10-11.

The conclusion that DESC's use of the PMM-based EPA clause was not

designed to protect against the ills identified in FAR § 16.203-3 was premised on a

misinterpretation of the meaning of the term "contractor's established prices." As we

have explained herein, contrary to the conclusion of the Court of Federal Claims,

market-based EPA clauses are permitted under the FAR. As discussed above, FAR

§ 16.203-3 does not require that adjustments be tied solely to changes in the prices

charged by a particular contractor. Because the FAR does not impose the restrictions

articulated by the Court of Federal Claims, it was legal error for the court to reject

04-5064 15
DESC's use of the PMM on the grounds that it "does not reflect any specific vendor's

current price."

Because we conclude that DESC's use of a market-based EPA clause tied to the

PMM was authorized under the FAR, we do not reach the other issues raised in the

certified questions. See Eurodif S.A. v. United States, No. 04-1209, __ F.3d __, 2005

U.S. App. LEXIS 3567 at *29 (Fed. Cir. Mar. 3, 2005) (declining to reach issue

presented by certified question when resolution of related certified questions obviated

the applicability of the issue to the case at hand). The issue regarding the legality of the

procedures used to obtain the individual and class deviations is moot in light of our

determination that the clause that DESC sought permission to use was authorized by

the FAR. Likewise, the government's argument that Appellants waived their breach of

contract claims was based on the presumption that Appellants acquiesced in the

incorporation of the illegal EPA clauses and then fully performed the contract before

bringing suit. Hermes, 58 Fed. Cl. at 12; Tesoro, 58 Fed. Cl. at 73. Our holding that the

use of the PMM-based EPA clause was authorized under the statute moots the issue as

to whether Appellants had waived their right to challenge the legality of that clause.

III. CONCLUSION

For the foregoing reasons, we hold that the Court of Federal Claims erred in

holding that DESC's use of a PMM-based EPA clause was not authorized under the

FAR. Accordingly, we reverse the decisions of the Court of Federal Claims. Our

holding moots the other issues raised in the certified questions and therefore we do not

reach the remaining issues related to the individual and class deviations and the

applicability of the doctrine of waiver.

04-5064 16
 IV. COSTS

No costs.

REVERSED.

04-5064 17