ASBCA 58088

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Public Warehousing Company, K.S.C. ) ASBCA No. 58088 ) Under Contract No. SPM300-05-D-3128 ) APPEARANCES FOR THE APPELLANT: Michael R. Charness, Esq. Bryan T. Bunting, Esq. Elizabeth Krabill Mcintyre, Esq. Vinson & Elkins LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq. DLA Chief Trial Attorney John F. Basiak, Jr., Esq. Keith J. Feigenbaum, Esq. Kari L. Scheck, Esq. DLA Troop Support Philadelphia, PA OPINION BY ADMINISTRATIVE JUDGE O'CONNELL ON THE GOVERNMENT'S MOTION TO DISMISS The government moves to dismiss this appeal without prejudice pending the resolution of a criminal case against appellant in the Northern District of Georgia. In the alternative, the government requests a stay. We deny the motion to dismiss but grant the motion to stay. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. The "prime vendor" contract at issue in this appeal, as well as 2 earlier prime vendor contracts awarded to appellant, have thus far been the subject of at least 11 panel decisions by the Board. 1 In this opinion, we will describe only those facts necessary for the pending motion. 1 Pub. Warehousing Co., ASBCA No. 56116, 08-1BCA,33,787 (PWC I) Pub. Warehousing Co., ASBCA No. 56116, 09-1BCA,34,038 (PWC II) Pub. Warehousing Co., ASBCA No. 56116, 09-2 BCA, 34,264 (PWC Ill) Pub. Warehousing Co., ASBCA No. 56888, 09-2 BCA, 34,265 (PWC IV) Pub. Warehousing Co., ASBCA No. 56022, 13 BCA, 35,201 (PWC V) Pub. Warehousing Co., ASBCA No. 57510, 13 BCA, 35,314 (PWC VJ) Pub. Warehousing Co., ASBCA No. 58078, 13 BCA, 35,460 (PWC VII)  2. In July 2005, the Defense Logistics Agency (DLA) awarded Public Warehousing Company, K.S.C. (PWC) Contract No. SPM300-05-D-3128 (the PVII contract) to deliver food, beverages and related items to military units and other authorized customers in Iraq (compl. iJ 6; gov't mot. at 2). 3. PWC transported the food and other items on trucks that traveled in convoys. It contends that in December 2007 U.S. military personnel began requiring it to provide extra semi-truck tractors (bobtails) not required by the contract; the bobtails were used to recover appellant's assets as well as the assets of other contractors in the convoys when they experienced breakdowns or other problems during the trips. (Compl. iii! 12, 16-17) Appellant contends that it had no choice but to comply because the government would not have allowed its trucks in the convoys (id. iii! 17-18). 4. On 24 October 2011, PWC submitted a certified claim to the contracting officer seeking about $7.5 million (R4, tab 44). The contracting officer did not issue a final decision and on 20 April 2012 PWC filed this appeal based on a deemed denial. 5. On 8 November 2016, we granted the government leave to amend its answer to plead affirmative defenses of fraud in the inducement, first material breach, sovereign acts doctrine, political question doctrine, assumption of risk, and failure to mitigate. PWC, ASBCA No. 58088 (PWC XI). 6. Seven years earlier, November 2009, a grand jury in the Northern District of Georgia issued an indictment against PWC for various fraud offenses arising from the contract at issue. That case is still pending. 7. The superseding indictment in that case charges PWC with major fraud against the United States, wire fraud, and conspiracy to commit major fraud. The· government's theories include allegations that PWC misrepresented the expected prices of a market basket of goods in submitting its proposal for the contract and that it overcharged the government in a variety of ways, including: the use of costlier vendors that provided PWC a prompt payment discount; improperly charging the government for warehousing and distribution costs; inflating prices from distributors and vendors; improperly retaining rebates, allowances and discounts; and reducing the pack size of products to increase distribution fees. (Gov't mot. at 6-7; app. opp'n at 6-7) Pub. Warehousing Co., ASBCA No. 58078, 14-1 BCA ii 35,574 (PWC VIII) Pub. Warehousing Co., ASBCA No. 56022, 15-1 BCA ii 36,062 (PWC IX) Pub. Warehousing Co., ASBCA No.