ASBCA 58779

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Maersk Line Limited, Inc. ) ASBCA No. 58779 ) Under Contract No. HTC-711-09-D-0040 ) APPEARANCES FOR THE APPELLANT: Elizabeth A. Ferrell, Esq. John W. Sorrenti, Esq. McKenna Long & Aldridge LLP Washington, DC Of Counsel: Michael A. Hopkins, Esq. General Counsel Patrick H. McCaffery, Esq. Associate General Counsel APPEARANCES FOR THE GOVERNMENT: Col Robert J. Preston II, USAF Air Force Chief Trial Attorney Christopher S. Cole, Esq. Maj Donald N. Bugg, USAF Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE PEACOCK ON GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION The government asserts that the captioned appeal involves a dispute for resolution by the General Services Administration (GSA) pursuant to its authority under section 322 of the Transportation Act of 1940 (Transportation Act), 31 U.S.C. § 3726. The government therefore moves to dismiss this appeal, arguing that the Board lacks jurisdiction under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, to consider matters arising under the Transportation Act. We deny the motion. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. The United States Transportation Command (USTRANSCOM or government) and Maersk Line Limited, Inc. (Maersk or appellant) entered into Contract No. HTC-711-09-D-0040 (the contract or the USC-06 1 contract) on 30 January 2009 for the provision of "international cargo transportation and distribution services using ocean common 1 USC is an abbreviation for Universal Services Contract. or contract carriers ... offering regularly scheduled commercial liner service for requirements that may arise in any part of the world" (R4, tab 1 at 1, 52). The contract was solicited as a commercial item contract pursuant to the Federal Acquisition Regulation (FAR) (compl. and answer ~ 18). 2. The contract's Performance Work Statement at section 2.A stated that the contract "is not subject to terms or conditions of Contractors' tariffs except for war risk or as otherwise specified in this contract" (R4, tab 1 at 52). Instead, the contract schedule provided that payment was to be made at rates in the Carrier Analysis and Rate Evaluation System (CARES), and various adjustment factors set forth in the contract (id. at 3-4, 6-16). 3. The contract was an indefinite delivery/indefinite quantity commercial item contract with an initial base period of 1 April 2009 through 31 March 2010, in the estimated amount of approximately $316 million, and included two one-year option periods (R4, tab 1 at 3-4, 19; compI. and answer~~ 18, 21 ). Although the contract was "primarily for requirements sponsored by the [Department of Defense]," the contract permitted "[o]ther organizations [to] fill their requirements through this contract only as designated by the Contracting Officer" (R4, tab 1 at 52). 2 4. The contract incorporated numerous FAR and DFARS clauses by reference or by full text. FAR 52.216-18, ORDERING (OCT 1995), incorporated into the contract by full text, provided in pertinent part: "(b) All delivery orders or task orders are subject to the terms and conditions of this contract. In the event of conflict between a delivery order or task order and this contract, the contract shall control." (R4, tab 1 at 16-28) 5. The contract also incorporated by reference FAR 52.212-4, CONTRACT TERMS AND CONDITIONS - COMMERCIAL ITEMS (FEB 2007), which provided in pertinent part: (d) Disputes. This contract is subject to the Contract Disputes Act of 1978, as amended (41 U.S.C.