               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. 1990). The consignor is the shipper,
             or the one who sends goods. Id. at 307. The consignee is the one to whom
             goods are shipped. Id. A government bill of lading is an accountable
             transportation document that is authorized and prepared by a government
             official. 48 C.F .R. § 47.001. Unlike a government bill of lading, a commercial
             bill of lading is not an accountable transportation document.
                                                  2
(Gov't mot., exs. G-H) The World Airways TOs were for door-to-door shipments
from military bases in Afghanistan to various military facilities in the United States
(gov't mot., ex. H).

       8. The shipments were multimodal, meaning they were performed in three
segments using different modes of transportation (gov't mot., ex. F). First, UTi's
subcontractors (2nd tier) or sub-subcontractors (3rd tier)--namely Zet Avia Airways,
DFS Middle East, and Coyne Airways (collectively air carriers)--transported the
goods by air from Afghanistan to the United Arab Emirates (UAE) (air segment)
(comp I. ,-i 30). The air carriers issued air way bills. The air carriers were parties to the
air waybills. (Id.) UTi was not a party. (R4, tab 2)

       9. Second, Liberty Global Logistics or American Roll-on-Roll-off carrier
(collectively water carriers) transported the goods by sea from the UAE to ports in the
United States (water segment) (compl. ,-i 22; R4, tab 2). The water carriers issued
ocean bills of lading. The water carriers were parties to the ocean bills of lading. UTi
was not a party. (R4, tab 2)

        10. Third, unidentified linehaul carriers (land carriers) transported the goods
by land from ports in the United States to various military facilities in the United
States (land segment). UTi does not submit evidence-such as land segment bills of
lading-establishing that the ports were in the same states as the military facilities.
On the contrary, the invoices that UTi submitted in support of its claim show that, for
at least about three quarters of shipments, the port was located in a different state
than the military facility. 3 (R4, tab 2)

       11. UTi acted as a non-vessel ocean common carrier (NVOCC) (gov't mot.,
ex. D at 36). 4 UTi alleges that "UTi performed all aspects of the World Contract,


3
    In particular, the invoices show that the port was located in a different state than the
         military facility for 31 of the 44 shipments-namely the shipments associated
         with invoice numbers: 29000105350-1, 29000076028-1, 29000091834-1,
         29000065128-l,29000103240-1,29000104902-1,29000104890-1,
         29000109714-1,29000045672-1,29000105018-l,29000045696-1,
         29000104967-l/29000104961-1,29000092232-1,29000092257-1,
         29000045808-1,29000113890-1,29000109678-1,29000058511-1,
         29000104786-1,29000076128-1,29000076109-1,29000076123-1,
         29000032237-3,29000041899-1,29000032236-3,29000041890-l,
         29000104852-l,29000104884-1,29000092180-l,29000045822-1,and
         29000041802-1 (R4, tab 2, exs. A-J, L-P, R-Z, CC-FF, KK, NN, QQ).
4
    An NVOCC is "a common carrier that. .. does not operate the vessels by which the
         ocean transportation is provided." 46 U.S.C. § 1702(17)(B). An NVOCC
                                               3
incurring all transportation and required subcontractor costs" (compl. ~ 5). Similarly,
in its claim, UTi asserted that "UTi performed all aspects of the World Contract,
incurring all transportation and required subcontractor costs" (R4, tab 1 at 1).

        12. UTi issued a multimodal commercial bill oflading (UTi bill oflading) for 35
of the 44 shipments (UTi bill oflading shipments). 5 For 9 of the 44 shipments (non-UTi
bill oflading shipments), UTi did not issue a bill of lading. 6 UTi' s claim asserted that:

               [T]he bills of lading, issued by UTi, which covered
               door-to-door transportation of the goods ( includ[ ed] all
               necessary modes of transportation) .... Under bills of

        "contracts with its customers as principal, agreeing to transport their
        goods on a voyage that includes an ocean leg. An NVOCC commonly
         issues bills of lading to its customers in its own name, even though it
        does not operate the ship that will carry the goods on the ocean voyage.
        It buys space on the carrying ship like any other customer, receiving a
        bill of lading from the owner or charterer of that ship when the goods are
        loaded on board. It commonly consolidates goods from several different
        shippers into a single container, receiving a bill of lading from the water
        carrier in relation to the container as a whole .... The NVOCC does not
        contract with the owners of the goods as agent for the ship. Quite the
        reverse, it contracts with the water carrier as agent for the owners of the
        goods." MARTIN DA VIS, IN DEFENSE OF UNPOPULAR VIRTUES:
        PERSONIFICATION AND RATIFICATION, 75 Tul. L. Rev. 337, 395-96
        (2000). Shippers may treat an NVOCC as a common carrier. Ins. Co. of
        N. Am. v. M!Va/klaOcean Lynx, 901F.2d934, 937 n.2 (11th Cir. 1990).
5
    The UTi bill of lading shipments were the shipments associated with invoice numbers:
        29000105350-1,29000076028-1,29000091834-1,29000065128-l,
        29000103240-1,29000104902-1,29000104890-1,29000109714-1,
        29000045672-1,29000105018-1,29000045696-1,29000104967-l/
        29000104961-1,29000092232-1,29000092257-l,29000045808-1,
        29000049049-3,29000113890-1,29000109678-1,29000058511-1,
        29000104786-1,29000076128-l,29000076109-1,29000076123-1,
        29000104827-1,29000092197-1,29000104852-1,29000104884-1,
        29000045066-1,29000041954-1,29000041953-1,29000045400-1,
        29000045287-1,29000104985-1,29000105330-l,and29000046612-1 (R4,
        tab 2, exs. A-J, L-X, AA-BB, EE-JJ, LL-MM, PP, SS).
6
    The non-UTi bill of lading shipments were the shipments associated with invoice
        numbers: 29000075957-1129000075958-2, 29000104827, 29000041899-1,
        29000032236-3,29000041890-1,29000092180-1,29000045822-l,
        29000041802-1, and 29000045789-1 (R4, tab 2, exs. K, Y-Z, CC-DD, KK, NN,
        QQ-RR).
                                             4
              lading, the carrier takes responsibility and liability of the
              goods "for the entire journey and over all modes of
              transportation." [Estes Express]. Thus, in issuing bills of
              lading, UTI assumed ultimate liability of the transportation
              of the goods through multiple modes of transportation.

(R4, tab 1 at 3) Government representatives did not sign the UTi bills oflading (R4,
tab 2). However, UTi made the UTi bills of lading available to the government through
the Ufrac and eMPower cargo tracking systems (gov't mot., ex. D at 44, 52, 101).

     13. Government representatives signed the UTi delivery notices (gov't mot.,
ex.Cat 27-38).

       14. USTRANSCOM paid World Airways in full for the shipments (gov't mot., ex. N).

       15. World Airways did not completely pay UTi for the shipments, apparently
having gone bankrupt (compl. iiii 3, 38).

         16. On 24 June 2015, UTi filed a certified claim with the contracting officer.
In its claim, UTi asserted that "[t]hrough these bills of lading, the government and UTi
formed direct, free standing contractual relationships apart from the World contract
that is the basis ofUTi's claim against the government." (R4, tab 1)

       17. Based upon a deemed denial of that claim, UTi filed this appeal (compl.    iiii 8,   12).

        18. In its complaint, UTi alleges that "UTi and its subcontractors issued bills of
lading that formed a direct, free-standing contractual relationship between UTi and
USTRANSCOM" (comp I. ii 6). UTi alleges that USTRANSCOM breached those
express agreements by failing to pay for the shipments (id. iiii 39-46, 52). In the
alternative, UTi alleges that USTRANSCOM breached an implied contract (id. iiii 47-52).
UTi alleges that we possess jurisdiction over its breach of contract claims under the
Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109 (id. ii 11).

        19. The government moved to dismiss for lack of jurisdiction, arguing that
there is no privity of contract. Thereafter, we ordered the parties to brief the issue of
whether any contract was subject to the Interstate Commerce Act of 1887, as amended
by the Transportation Act of 1940 (collectively I CA/Transportation Act), and thus not
subject to our jurisdiction under the CDA. The parties submitted such briefing.

                                      DECISION

       We do not possess jurisdiction over this appeal because any contracts are
subject to the !CA/Transportation Act. There are several mechanisms the government

                                            5
may use to acquire transportation services, including negotiated contracts or bills of
lading. 48 C.F.R. § 47.000(a)(2); Maersk Line Ltd., ASBCA No. 55391, 07-2 BCA
ii 33,621 at 166,520, 166,522. Both the Federal Acquisition Regulation (FAR) and our
precedent draw a sharp distinction between acquisitions using negotiated contracts and
acquisitions using transportation forms, such as bills of lading. Id.; see also Maersk
Line Limited, Inc., ASBCA No. 58779, 14-1 BCA ii 35,589 at 174,385-87;
Eimskipafeleg Island, ehf, ASBCA No. 55209, 07-2 BCA ii 33,620 at 166,517-18.
That distinction is significant because the FAR applies to acquisitions using negotiated
contracts, while the !CA/Transportation Act applies to acquisitions using bills of
lading. As the FAR states, it applies to:

              Acquiring transportation or transportation-related services
              by contract methods other than bills of lading,
              transportation requests, transportation warrants, and similar
              transportation forms. Transportation and transportation
              services can be obtained by acquisition subject to the FAR
              or by acquisition under [the !CA/Transportation Act]. ...
              [T] he FAR does not regulate the acquisition of
              transportation or transportation-related services when the
              bill of lading is the contract ....

48 C.F.R. § 47.000(a)(2) (emphasis added).

        Whether the FAR or ICA/Transportation Act applies to an acquisition, in tum,
 is important because that fact dictates whether we possess jurisdiction over a dispute
regarding that acquisition. On the one hand, we possess jurisdiction under the CDA to
hear disputes regarding an acquisition governed by the FAR. Maersk Line Limited,
 14-1 BCA ii 35,589 at 174,386; Maersk Line Ltd., 07-2 BCA ii 33,621at166,520;
Eimskipafeleg Island, 07-2 BCA ii 33,620 at 166,518-19. On the other hand, we do
not possess jurisdiction to hear disputes regarding an acquisition governed by the
!CA/Transportation Act because the !CA/Transportation Act provides its own dispute
resolution procedure, which is not supplanted by the CDA. Dalton v. Sherwood Van
Lines, Inc., 50 F.3d 1014, 1017-18 (Fed. Cir. 1995); Inter-Coastal Xpress, Inc. v.
 United States, 296 F.3d 1357, 1369 (Fed. Cir. 2002). Because bill oflading
acquisitions are governed by the !CA/Transportation Act, and we do not possess
jurisdiction over disputes regarding acquisitions governed by the !CA/Transportation
Act, we do not possess jurisdiction over disputes regarding bill of lading acquisitions.
48 C.F.R. § 47.000(a)(2); Maersk Line Limited, 14-1 BCA ii 35,589 at 174,386
("payment disputes under non-FAR-based contracts are governed by [the
!CA/Transportation Act] and its implementing regulations"); Maersk Line Ltd., 07-2
BCA ii 33,621 at 166,520, 166,522; Eimskipafeleg Island, 07-2 BCA ii 33,620 at
 166,518 ("Transportation Act-based services have been limited to those transportation
services provided by way of [bills of lading] and tender agreements.").

                                           6
       Here, the government acquired transportation services through bills of lading
(SOF ~ 18). Therefore, the acquisition is not subject to the FAR and the CDA, but
instead is governed by the !CA/Transportation Act. As a result, we do not possess
CDA jurisdiction over this dispute. 7

        UTi argues that this acquisition is not subject to the !CA/Transportation Act because
the land carriers it used only operated intrastate, so it was not a freight forwarder under the
!CA/Transportation Act (app. supp. br. at 3-6; 49 U.S.C. § 13102(8), § 13501). 8 That
argument fails legally and factually. Legally, we have held that "the CDA governs
resolution of disputes related to FAR-based transportation contracts, and [the
ICA/Transportation Act] governs resolution of claims related to Transportation Act
non-FAR-based contracts." Maersk Line Ltd., 07-2 BCA ~ 33,621 at 166,526. Thus, under
the FAR and our precedent, the dispositive issue for purposes of determining whether an
acquisition is subject to the CDA or !CA/Transportation Act is whether the contracting
method was a FAR contract or a bill of lading; not whether there was interstate
transportation. Id.; 48 C.F.R. § 47.000(a)(2); Maersk Line Limited 14-1BCA~35,589
at 174,386; Eimskipafeleg Island, 07-2 BCA ~ 33,620 at 166,518. Factually, UTi has not
presented evidence establishing that the land carriers only operated intrastate. (SOF ~ 10).
On the contrary, the evidence shows that, at least for most of the shipments, the land
carriers transported property interstate (SOF ~ 10). 9




7
  Where-as here-an acquisition is subject to the !CA/Transportation Act, we do not
       possess jurisdiction over disputes regarding that acquisition based upon an
       implied contract theory. AIT Worldwide Logistics, Inc., ASBCA No. 54763,
       06-1 BCA ~ 33,267 at 164,860.
8
  Contrary to UTi's argument (app. supp. br. 4), the fact that UTi was an NVOCC does
       not preclude it from also being a freight forwarder under the ICA/
       Transportation Act. !ML Sea Transit, LTD v. United States, 343 F. Supp. 32,
       35-36 (N.D. Cal. 1972). Also unconvincing is UTi's attempt to minimize its
       role regarding the land segment (app. supp. sur-reply at 2-4). That argument is
       inconsistent with the claim's assertion that the UTi bills of lading "covered
       door-to door transportation of the goods (including all necessary modes of
       transportation)" (SOF ~ 12 (emphasis added); see also id. ("in issuing bills of
       lading, UTI assumed ultimate liability of the transportation of the goods
       through multiple modes of transportation.")). It also is inconsistent with the
       complaint's allegation that "UTi performed all aspects of the World [Airways]
       Contract, including all transportation" (id. ~ 11 (emphasis added)).
9
  DHX, Inc. v. Surface Transportation Board, 501 F .3d 1080, 1082 (9th Cir.
     · 2007}-upon which UTi relies-is not relevant because that case addresses the
      jurisdiction of the Surface Transportation Board over noncontiguous domestic
       trade; not our jurisdiction over disputes regarding bill of lading acquisitions.
                                            7
        UTi also argues that we possess jurisdiction because the bills of lading were issued
in connection with a FAR contract-namely the World Airways contract (app. supp. br.
at 9-13). UTi cannot have it both ways. In an attempt to establish privity, 10 UTi asserts
that the contractual bases for this appeal are the bills of lading, and not the World
Airways contract. In its claim, UTi asserted that "[t]hrough these bills of lading, the
government and UTi formed direct, free standing contractual relationships apart from the
World [Airways] contract that is the basis of UTi' s claim against the government" (SOF
il 16). Similarly, in its complaint, UTi alleges that UTi and its subcontractors "issued
bills of lading that formed a direct, free-standing contractual relationship between UTi
and USTRANSCOM" (SOF ii 18). And in its opening brief, UTi argues that "UTi is not
appealing the denial of a claim by UTi as a mere subcontractor under the World
[Airways] Contract. Rather, UTi filed a claim with USTRANSCOM as a direct
contractor with the Government either through an express contract via its bills of lading,
or, alternatively, through an implied-in-fact contract." (App. hr. at 2) Having repeatedly
and emphatically asserted for privity purposes that the contracts at issue here are the bills
of lading-and not the World Airways contract-UTi cannot tum around and avail itself
of the World Airways contract to establish jurisdiction. Because it was not a party to the
World Airways contract, UTi lacks the privity with which to rely upon the World
Airways contract to establish jurisdiction (SOF ii 5).

                                      CONCLUSION

         The motion to dismiss is granted. The appeal is dismissed for lack of jurisdiction.

         Dated: 12 December 201 7




                                                    JAMES R. SWEET
                                                    Administrative Judge
                                                    Armed Services Board
                                                    of Contract Appeals


(Signatures continued)


10
     Moreover, even assuming that the UTi bills oflading established privity under Estes
        Express Lines v. United States, 739 F.3d 689 (Fed. Cir. 2014), there would not
        be privity for the non-UTi bill of lading shipments because UTi did not issue
        bills of lading for those shipments (SOF il 12).
                                             8
 I concur                                         I C-Ol!Cfil/ )

                                                    /'·~----
                                                    l__.--"                    -----
 RICHARD SHACKLEFORD                              OWEN C. WILSON
 Administrative Judge                             Administrative Judge
 Acting Chairman                                  Vice Chairman
 Armed Services Board                             Armed Services Board
 of Contract Appeals                              of Contract Appeals


      I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 60188, Appeal of UTi,
United States, LLC, rendered in conformance with the Board's Charter.

      Dated:



                                                  JEFFREYD. GARDIN
                                                  Recorder, Armed Services
                                                  Board of Contract Appeals




                                           9
