ASBCA 58078

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Public Warehousing Company K.S.C. ) ASBCA No. 58078 ) Under Contract No. SPM300-05-D-3128 ) APPEARANCES FOR THE APPELLANT: Michael R. Charness, Esq. BryanT. Bunting, Esq. Jamie F. Tabb, Esq. Vinson & Elkins LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq. DLA Chief Trial Attorney John F. Basiak, Jr., Esq. Kristin K. Bray, Esq. Trial Attorneys Elizabeth Amato-Radley, Esq. Assistant Counsel DLA Troop Support Philadelphia, PA OPINION BY ADMINISTRATIVE JUDGE TING ON THE GOVERNMENT'S MOTION TO DISMISS PURSUANT TO BOARD RULE 30 In the Board's 12 November 2013 decision on jurisdiction, we rejected Defense Supply Center Philadelphia's (DSCP) alternate argument to dismiss this appeal pending the outcome of the criminal and civil fraud cases in the District Court. We did so because DSCP failed to make out a clear case of hardship and inequities in being required to go forward. Public Warehousing Company K.S.C., ASBCA No. 58078, 13 BCA ~ 35,460 (PWC). Through DSCP's new motion to dismiss, the U.S. Attorney for the Northern District of Georgia has explained that proceeding with ASBCA No. 58078 would compromise and interfere with ongoing criminal proceedings in the District Court. DSCP's motion this time is based on Board Rule 30. As an alternative, DSCP has moved to stay discovery in ASBCA No. 58078 pending the resolution of the criminal case. By Discovery Order No. 1, we stayed discovery pending our decision on DSCP's motion to dismiss. For reasons stated below, we grant DSCP's motion and dismiss this appeal without prejudice under Rule 30.  STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION Background 1. In 2003, DSCP, now known as Defense Logistics Agency Troop Support (DLA Troop Support), awarded a "Prime Vendor" contract (PV1 Contract) to Public Warehousing Company K.S.C. (PWC) to deliver subsistence items to U.S. and Allied forces in Kuwait and Qatar (SOF ~ 2). 1 The contract was amended in June 2003 adding the "Iraq Deployment Zone" requiring PWC to make deliveries 'to additional Authorized Customers in active combat zones. Under the contract, PWC was to be reimbursed for the cost of food plus a distribution price, including profit. (SOF ~ 3) 2. DSCP continued the PV1 Contract with PWC through a bridging contract (PV Bridge Contract) from February 2005 to mid-December 2005 (SOF ~ 4). In July 2005, DSCP awarded Contract No. SPM300-05-D-3128 (PV2 Contract) to PWC. The PV2 Contract included an 18-month base year and 3 options. PWC began performance of the PV2 Contract in December, 2005. DSCP exercised all three options extending the PV2 Contract to 4 December 2010. In all, PWC performed the PV1, PV Bridge, and PV2 Contracts continuously for approximately seven and a half years. (SOF ~ 5) 3. Unlike the PV1 and the PV Bridge Contracts, the PV2 Contract contained a "PERFORMANCE BASED DISTRIBUTION FEES" clause (PBDF clause) whose purpose was to incentivize PWC to perform "at an optimal level" to achieve "customer satisfaction" (SOF ~ 6). The PBDF clause established a six-month fee review cycle (SOF ~ 7). Depending upon whether PWC's performance was rated as "Excellent," "Good," "Fair," or "Poor" in accordance with the standards prescribed in the PBDF clause, PWC could receive an increase in distribution fee, a decrease in distribution fee, or the standard distribution fee (SOF ~~ 6, 8). 4. A rating of "Excellent," "Good," "Fair," or "Poor" depends on two factors: PWC's (1) fill rate and (2) current Contractor Performance Assessment Report (CPAR) rating.