Starwalker PR LLC ( 2020 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
Starwalker PR LLC ASBCA Nos. 60485, 60775
Under Contract No. W91B4N-09-D-5005
APPEARANCES FOR THE APPELLANT: Will A. Gunn, Esq.
Fort Belvoir, VA
David G. Barger, Esq.
Laura Metcoff Klaus, Esq.
Richard L. Moorhouse, Esq.
Ryan C. Bradel, Esq.
Greenberg Traurig LLP
McLean, VA
Clarence Davis, Esq.
Margaret N. Fox, Esq.
Griffin & Davis, LLC
Columbia, SC
APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq.
Army Chief Trial Attorney
MAJ Stephen M. Hernandez, JA
Dana J. Chase, Esq.
Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL
Appellant, Starwalker PR LLC (Starwalker) seeks compensation for “return
trips” that its trucks made after delivering cargo to destinations in Afghanistan
pursuant to the contract referenced above.
FINDINGS OF FACT
In March 2009, the government and a company called NLC Construction, LLC
(NLC), entered the base year of the above-referenced contract for trucking services in
Afghanistan (R4, tab 1 at 1). Later on, NLC changed its name to NCL Holdings
(NCL), still later, NCL changed its name to VLOX (tr. 1/194; see R4, tabs 10, 12-17).
On March 8, 2010, NCL and the government entered into Modification No. 3 (R4,
tab 6). Although by that time NLC had changed its name to NCL, the modification refers
to the contractor as “NLC,” not “NCL” (tr. 1/194; R4, tabs 10, 12-17). The modification
exercised the first option period (to begin on March 16, 2010) (R4, tab 6 at 11).
In 2011, NCL changed its name to VLOX, LLC (R4, tab 36 at 1, tab 56 at 1).
In late 2015, the government and VLOX settled some claims under the contract (R4,
tab 61). In January 2016, the government and Starwalker entered Modification No. 8
to the contract, referring (many times) to Starwalker as the contractor, and stating that
“fo]n January 26, 2015, VLOX assigned all remaining unpaid claims to Starwalker PR
LLC.... VLOX certifies as of January 26, 2015 it assigned all of its rights, title and
interest in and to payments to be made under the contract to Starwalker PR LLC.”
(R4, tab 62 at 1-2, J 11 (emphasis added)) VLOX and Starwalker are different
companies (tr. 1/195).
The contract is of the indefinite-delivery, indefinite-quantity type, guaranteeing a
minimum order amount of $250,000 (R4, tab 1 at 3-4), which was paid by March 2010
(tr. 3/116). In both appeals, Starwalker seeks compensation for unpaid “return trips”
(also called “backhaul”) during trucking missions that the government assigned. During
the return trips, the trucks were not carrying any cargo (tr. 3/108, 175).
DECISION
The government questions our jurisdiction, saying that Starwalker is not in
privity with the government. We disagree. Modification No. 8 refers many times to
Starwalker as the contractor, and certifies that VLOX “assigned all of its rights, title
and interest in. . . the contract to Starwalker.” With Modification No. 8, the
government recognized the assignment of the contract to Starwalker, putting the two in
privity. See generally Mancon Liquidating Corp., ASBCA No. 18340, 74-1 BCA
{ 10,470 at 49,512 (cataloguing other cases of government consent to contract
assignment).
Nothing the government points to (gov’t post-hearing br. at 4-11) persuades us
otherwise. The government discusses anti-assignment statutes and cites CBI Services,
Inc., ASBCA No. 34983, 88-1 BCA § 20,430, but in CBJ the Board recognized that the
government may waive compliance with anti-assignment statutes by treating a party as
the contractor, and in dismissing that appeal for lack of jurisdiction the Board noted
“the absence of any [contract] modifications, either bilateral or unilateral,” between
the government and the CBI appellant. Jd. at 103,337-38. By contrast, here there is a
bilateral modification with appellant in which the government, over and over again,
expressly recognizes appellant as the contractor. We possess jurisdiction to entertain
the appeals.
Starwalker says that the government owes it $76,977,780.87 for unpaid return
trips performed during the base and option periods (app. post-hearing br. at 1, 28);
however, Starwalker makes no effort in its post-hearing brief to demonstrate that, if it
is entitled to such compensation, $76,977,780.87, or any particular amount, is the
amount that the government owes. The Board will not do that work for appellant, and
the appeals are denied, for failure to prove quantum. Cf United States v. Great Am.
Ins. Co. of New York, 738 F.3d 1320, 1328 (Fed. Cir. 2013) (“It is well established that
arguments that are not appropriately developed in a party’s briefing may be deemed
waived.”); SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320-21 (Fed.
Cir. 2006) (“arguments raised in footnotes are not preserved”; quoting United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir.1991) (“A skeletal ‘argument’, really nothing more
than an assertion, does not preserve a claim”)); AAR Airlift Grp., Inc., ASBCA
No. 59708, 19-1 BCA § 37,462 at 182,007 (citing cases); GSC Constr., Inc., ASBCA
No. 59046, 19-1 BCA P 37,393 at 181,797 (“Appellant requests $3,000 in claim
preparation costs [], but presents no persuasive evidence in support of that very sparse
claim. This portion of the appeal is denied.”); Cocoa Elec. Co., Inc., ASBCA
No. 33921, 91-1 BCA § 23,442 at 177,577 (denying claim for “failure to prove any
damages”); aff'd, 64 F.3d 676 (Fed. Cir. Aug. 14, 1995) (table); Orlosky Inc. v. United
States, 68 Fed. Cl. 296, 318 (2005) (refusing to “undertake to prepare evidence”); Al
Ghanim Combined Grp. Co. Gen. Trad. & Cont. W.L.L. v. United States, 67 Fed. Cl.
494, 498 (2005) (“This court cannot prepare evidence or speculate regarding its
accuracy.”’).
My colleagues seem to imply that where the Board has been silent regarding
bifurcation into entitlement and quantum phases, the Board should or may treat the
proceedings as effectively bifurcated, particularly, perhaps, where a party has
presented a perfunctory quantum case. In my experience, bifurcation at the Board is
the result of the Board having affirmatively bifurcated proceedings, which did not
happen here. Indeed, Starwalker does not appear to view the proceedings as having
been bifurcated. Not only does Starwalker not say that the proceedings were
bifurcated, in its initial post-hearing brief it says that “[f]or the foregoing reasons, the
Board should find that . . . Starwalker is entitled to $76,977,780.87 plus applicable
interest” (app. br. at 28 (emphasis added)), and in its post-hearing reply brief it says
that “as set forth above and in Starwalker’s prior filings, the aboard should award
Starwalker $76,977,780.87 plus interest” (reply at 16 (emphasis added)).
CONCLUSION
The appeals are denied.
Dated: March 2, 2020
\ tpee / ho OA
~ TIMOTHY. MCILMAIL
Administrative Judge
Armed Services Board
of Contract Appeals
CONCURRING OPINION BY ADMINISTRATIVE JUDGE SHACKLEFORD
I concur in the result because I agree that the claims should be denied, not
because appellant failed to discuss quantum in its brief and consequently was deemed
to have not proved it, but because it is not entitled to recover on the facts of these
appeals. ;
For decades, the ASBCA has established a preference for hearing entitlement
only, bifurcating quantum until and unless entitlement is found. See, e.g., Kenneth
Fulghum, ASBCA No. 5414, 60-1 BCA § 2492 at 11,825 (“The amount of the
equitable adjustment to which appellant might be entitled was not in issue, it being
understood that the matter would be returned to the contracting officer for negotiation
in the event appellant prevailed in this proceeding.”).!
On other occasions the parties have chosen to have entitlement and quantum
presented at trial, briefed and decided by the Board. See, e.g., Parsons Evergreene,
LLC, ASBCA No. 58634, 18-1 BCA § 37,137 at 180,787 (“The parties insisted that
the Board decide both entitlement and quantum. The Board agreed.”).
In most of those appeals, the parties were clearly asked their preference and the
Board made it clear on the record that it acquiesced in that preference or clearly told
the parties what was being heard and decided. That did not happen here. As best I can
tell, the record is devoid of any discussion of entitlement and/or quantum, so we do not
really know what the parties may or may not have presumed based upon our years
long practice of hearing only entitlement or hearing both entitlement and quantum, yet
clearly advising the parties which would occur. Thus I write separately to demonstrate
why I concur in the result but not in its rationale. To do so, I must make additional
findings of fact.
ADDITIONAL FINDINGS OF FACT
1. The captioned contract called for Starwalker’s predecessor’ to “provide
management, equipment, and labor to provide host nation trucking services throughout
Afghanistan in accordance with the Statement of Work [(SOW)]” (R4, tab 1 at 5).
| To be sure, especially recently, some individual judges prefer combining the two in
one hearing; nevertheless, the majority of judges, and our general practice,
reflects a preference for bifurcation.
2 Starwalker is the assignee of these claims as explained and decided in Judge MclIlmail’s
opinion, with which I concur.
2. The contract’s SOW described the background of the need for the
procurement as follows:
(Id. at 44)
Afghanistan Theater of Operations requires the distribution
of reconstruction materials, security equipment, and life
support items throughout the Afghanistan Combined/Joint
Area of Operations (CJOA). Retrograde operations are
also expected. Convoy management services will be
integrated into the current Afghanistan movement control
systems and provide continuous convoy management team
availability in accordance with mission requirements.
3. In paragraph 1.2 the requirements of the procurement were
described in part as follows:
(d.)
Contractor shall provide all resources including logistic
support and management necessary to provide up to 100
trucks per day (estimated) for the secure long haul
distribution of reconstruction, security, and life support
assets from Forward Operating Bases (FOB) and
distribution sites located throughout the Afghanistan
Theater of Operations. Retrograde will also be expected.
4. Further, in terms of compliance, paragraph 1.3 of the SOW provided in part
as follows:
(Id.)
Contractor must comply with all movement requirements
in theater to include but not limited to the Logistics
Movement Request / Transportation Movement Request
(LMR / TMR) process, in coordination with the Joint
Movement Control Battalion (JMCB)
5. The SOW also provided that the “Contractor shall operate convoys to and
from any location within the Afghanistan Theater of Operations, as directed on the
official LMR/TMR, and issued through the JMCB” (id. at 49). The contractor was
awarded a contract that included a firm fixed unit price for each type of vehicle
employed for short haul mission days and for long haul mission days (id. at 6-8).
Pursuant to paragraph 4.2, one mission day was allowed for every 200 km of distance
traveled within Afghanistan. Short haul missions were missions that consisted of two
mission days or less anywhere in the Afghanistan area of operations, such that one
mission day equaled 0-200 km and 2 mission days equaled 201-400 km. Long haul
missions were any mission that was longer than two mission days, such that one long
haul mission day equaled 401-600 km and two long haul mission days equaled
601-800km. (Jd. at 49-50)
6. The SOW also included paragraph 4.10, Backhaul/Retrograde Operations,
which provided as follows:
Contractor shall pick up and deliver equipment and
resources associated with backhaul/retrograde operations
to and from any location within the Afghanistan Theater of
Operations as indicated on an official LMR/TMR.
(R4, tab 1 at 53)
7. Backhaul is not defined in the contract but the parties clearly understood that
it related to the movement of vehicles from the point of delivery to somewhere else
with cargo the government contends and without cargo appellant contends.
Mr. Wardak who founded NCL, a Starwalker predecessor, inquired during the pre-bid
period about how they would get paid for backhaul, as follows: “Will
backhaul/retrograde operations be charged short haul and long haul mission rates?
(Ref: 4.10).” The government replied that “Backhaul/retrograde operations will be
counted in accordance with SOW para. 4.2.” (tr. 148-150; R4, tab 41 at 4 of 9)
8. Paragraph 4.10 of the contract SOW discusses backhaul, but makes clear
that it requires an official LMR/TMR. Paragraph 4.2 (SOW), which was referenced in
the question posed by appellant, relates to mission days for payment purposes. Thus
interpreted, appellant asked, how were the mission days to be related to backhaul and
the government answer said in essence, you need an LMR/TMR for a backhaul order.
9. For purposes of invoicing for services, the contract provided:
The contractor shall only invoice for days of actual service
performance. Specifically, time spent for mobilization,
demobilization, rest and relaxation leave, sick leave or any
event not directed by the Government shall not be included
as a day of services for the purposes of invoices submitted
to the Government.
(R4, tab 1 at 10) (Emphasis added)
10. Bilateral contract Modification P0003 executed on March 10, 2010 and
effective as of March 16, 2010, modified Paragraph 4.10 to read as follows:
Backhaul. Backhaul is the return movement of a truck,
without USG cargo, from the point of delivery to the
origination point, or any another [sic] point as determined
by the Contractor. Backhaul is not compensated by the
USG, unless specifically negotiated by the MCB in
advance of movement. Ifa truck uploads new cargo
following a download at a point of delivery, the movement
of the truck to a new point of delivery will be as directed
on an official LMR/TMR and the terms of this contract.
(R4, tab 6 at 16)
DECISION
Appellant argues that it is entitled to be paid in mission days for backhaul
operations when returning to the origin from a point of delivery of goods even without
goods for delivery. The foregoing unambiguous contract provisions interpreted
together lead to the conclusion that backhaul is only paid when the government
requests (through a Logistic Movement Request) that cargo be hauled from the
delivery point to somewhere else in the Afghanistan Theater of Operations.
Appellant further argues that it was coerced into signing P0003 and thus we
should ignore its revised terms. I read the original contract as requiring an official
LMT/TMR before the contractor could bill for the return trip. I read the modified
Paragraph 4.10 as clarifying what was already clear - backhaul is not payable unless
requested by the USG by issuing an LMR/TMR. Thus, we need not decide if
appellant was coerced into signing P0003 as under the original contract language
backhaul was not paid unless requested and under the modified, slightly clearer
language, it is still not paid unless requested. Nor do we need to determine which, if
any, backhaul charges claimed are outside the statute of limitations, because there is
no entitlement to any damages.
CONCLUSION
Based upon the foregoing, I deny appellant’s claims for backhaul payments.
Dated: March 2, 2020
RICHARD SHACKLEFORD
Administrative Judge
Acting Chairman
Armed Services Board
of Contract Appeals
J. REID PROUTY
Administrative Judge
Vice Chairman
Armed Services Board
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 Nos. 60485, 60775, Appeals of
Starwalker PR LLC, rendered in conformance with the Board’s Charter.
Dated:
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals