ASBCA 57510

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Public Warehousing Company K.S.C. ) ASBCA No. 57510 ) Under Contract No. SP0300-03-D-306 l ) APPEARANCES FOR THE APPELLANT: Michael R. Charness, Esq. Adrianne Goins, Esq. Elizabeth Krabill Mcintyre, Esq. Ryan D. Stalnaker, Esq. Bryan T. Bunting, Esq. Vinson & Elkins, L.L.P. 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. Trial Attorneys DLA Troop Support Philadelphia, PA OPINION BY ADMINISTRATIVE JUDGE O'CONNELL ON THE GOVERNMENT'S MOTION FOR LEAVE TO AMEND ANSWER AND MOTION TO DISMISS WITHOUT PREJUDICE, OR IN THE ALTERNATIVE, TO STAY This appeal is before the Board on the government's motion to amend its answer and motion to dismiss without prejudice, or in the alternative, to stay. Appellant, Public Warehousing Company K.S.C. (PWC), opposes the motions. We grant the motion to amend, deny the motion to dismiss, and grant the alternative motion to stay, for one year. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 1. From 2003 through 20 I 0, PWC contracted with the Defense Logistics Agency (DLA) to distribute food and other products to military customers in Iraq, Kuwait, and elsewhere in the Middle East as part of the Prime Vendor Program. PWC performed this work pursuant to three contracts: SP0300-03-D-306 l (PV-1 ); SPM300-05-D-3 l l 9 (PV Bridge); and SPM300-05-D-3128 (PV-2). This appeal concerns only the earliest period of performance of PV-1 between 2003 and 2004 under Modification 2. (App. opp'n at 5) 2. These contracts have produced a great deal of litigation between the parties. This is at least the eighth panel decision involving just the PV-1 contract.* In this opinion, we will describe only those facts necessary for the pending motions. 3. The contract provided for charges based on a minimum three-day round trip by PWC's trucks, with per day charges for trips over the three-day minimum. In late 2004, PWC "discovered" that it had not billed the government for 779 truck trips that had departed between October 2003 and September 2004. (App. opp'n at 8) 4. The parties made some attempt to resolve the charges but on 21 September 2009, appellant submitted a certified claim to the contracting officer. PWC re-submitted the claim on 16 November 2010 because the person who had certified the claim lacked authority. (App. opp'n at 9; R4, tab 18) 5. In 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. 6. The contracting officer did not issue a final decision (app. opp'n at 9). On 27 January 2011, PWC filed this appeal. After PWC filed its complaint on 3 March 2011, the government filed an answer on 21 April 2011 and a supplemental answer on 31 October 2011. 7. In the pending motions, DLA seeks leave to amend to assert affirmative defenses of first material breach and laches. PWC does not dispute that the government's proposed first material breach defenses are based on allegations in the indictment. For example, both the indictment and one of the proposed affirmative defenses allege that PWC overcharged the government by failing to purchase food from a vendor with a lower price because that vendor did not provide PWC a prompt payment discount, and that PWC misrepresented to the government that the requested vendor's * PWC, ASBCA No. 56022, 15-1BCAif36,062 PWC, ASBCA No. 57510, 13 BCA if 35,314 PWC, ASBCA No. 56022, 13 BCA if 35,201 PWC, ASBCA No. 56022, 11-2 BCA if 34, 788 PWC, ASBCA No. 56116, 09-2 BCA if 34,264 PWC, ASBCA No. 56116, 09-1BCAif34,038 PWC, ASBCA No. 56116, 08-1 BCA if 33,787 2 price was higher than the vendor PWC used. (Compare gov't mot., ex. 4 at 31-32, and ex. 6 at 24-25) 8.