ASBCA 60188

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) UTi, United States, LLC ) ASBCA No. 60188 ) Under Contract No. 000000-00-0-0000 ) APPEARANCES FOR THE APPELLANT: Dis mas N. Locaria, Esq. Melanie Jones Totman, Esq. Venable LLP Washington, DC James Y. Boland, Esq. Venable LLP Tysons Comer, VA APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq. Air Force Deputy Chief Trial Attorney Anna F. Kurtz, Esq. Capt Justin D. Haselden, USAF Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE SWEET ON THE GOVERNMENT'S MOTION TO DISMISS This is an appeal of a contracting officer's deemed denial of a claim by UTi, United States, Inc. 1 (UTi) for unpaid transportation and logistics services. The government has moved to dismiss, arguing that UTi is not in privity of contract with the government. We grant the motion, although we do so because we do not possess jurisdiction. STATEMENT OF FACT (SOF) FOR PURPOSES OF THE MOTION 1. The United States Transportation Command (USTRANSCOM or government) provides air, land, and sea transportation for the Department of Defense (DoD) (gov't mot., ex. Q at 1). 2. USTRANSCOM administers the Civil Reserve Air Fleet (CRAF) and Voluntary Intermodal Sealift Agreement (VISA) programs. Under the CRAF program, 1 Following the filing of this appeal, UTi, United States, Inc., merged with UTi United States, LLC, which is the surviving entity, and the case caption is amended to reflect that merger. We refer to both entities as UTi.  United States flagged air carriers voluntarily agree to provide stand-by commitments to support mobilization. As an incentive to participate in the CRAF program, CRAF participants are eligible for contracts that satisfy the DoD's peacetime airlift requirements. The VISA program is similar to the CRAF program, but is open to United States flagged water carriers. (Gov't mot., ex. Q at 2) 3. As part of the CRAF and VISA programs, USTRANSCOM issued a request for proposals (RFP) for fixed-price, multiple award, indefinite-delivery/indefinite-quantity contracts for door-to-door transportation of government cargo, including airlift, sealift, and/or linehaul. The awardees would be limited to CRAF or VISA participants. (Gov't I 1 mot., ex. Q at 1) 4. In response to the RFP, World Airways, Inc.-a CRAF participant-submitted a proposal. World Airways' proposal indicated that it would be the prime contractor, and that UTi would be a subcontractor. (Gov't mot., ex. D at 7, 22-23) 5. USTRANSCOM awarded Contract No. HTC711-12-D-R007-P00001 l to World Airways (World Airways contract). UTi was not a party to the World Airways contract. (Gov't mot., ex. A at 1) The World Airways contract required carriers to use bills of lading, and to designate the government as the cosignee (id. at 32). 2 6. In 2013, USTRANSCOM issued nine requests for quotes (RFQs) for task orders under the World Airways contract to transport goods from Afghanistan to the United States (gov't mot., ex. F; compl. ~ 15). UTi personnel responded to the RFQs with "World Airways Response[s]" to the RFQs (gov't mot., ex. F). 7. Based upon the RFQ responses, USTRANSCOM awarded task orders to several contractors, including World Airways (World Airways TOs). Neither UTi, its subcontractors, nor its sub-subcontractors were listed on the World Airways TOs. 2 A bill of lading is a "[d]ocument evidencing receipt of goods for shipment issued by person engaged in business of transporting or forwarding goods.... An instrument in writing signed by a carrier or his agent, describing the freight so as to identify it, stating the name of the consignor, the terms of the contract for carriage, and agreeing or directing that the freight be delivered to the order or assigns of a specified person at a specified place. It is receipt for goods, contract for their carriage, and is documentary evidence of title to goods." BLACK'S LAW DICTIONARY, 168 (6th ed.