Agility Logistics Services Comany KSC
ASBCA No. 57415, 57416, 57417, 57418, 57419, 57420, 57421, 57422, 57423, 57424, 57425, 57426, 57895, 57896, 57897, 57898, 57899, 57900, 57901, 57902, 57903, 57904, 57905, 57906, 57907
| A.S.B.C.A. | Feb 14, 2017Background
- Contract at issue was awarded by the Coalition Provisional Authority (CPA) in Iraq on June 6, 2004 to Public Warehousing Company (PWC), a Kuwaiti company that later changed names in Kuwait to Agility Public Warehousing Company KSC (PWC/Agility).
- Multiple contracting officer claims and appeals arose under Contract No. DABV01-04-D-0014; a purported entity called Agility Logistics Services Company KSC (Agility LSC) submitted a certified claim but later conceded Agility LSC does not exist.
- The ASBCA held on December 9, 2014 that it lacked jurisdiction because the CPA is not an "executive agency" under the Contract Disputes Act (CDA) and CPA Order No. 100 removed the contract’s disputes clause in favor of Iraqi law.
- Agility appealed to the Federal Circuit; the court remanded limited issues to the Board: (1) identify the real party in interest and (2) determine the effect of that finding on the Board’s jurisdictional dismissal.
- On remand the Board clarified Agility LSC never existed and PWC/Agility Public Warehousing Company KSC (as named in Kuwait) is the contractor; but the Board concluded the real-party-in-interest determination would not alter its prior jurisdictional dismissal.
- The Board found that determining who holds the substantive right to sue requires application of Iraqi law, which the parties did not present and the Board lacks expertise to decide; it therefore denied recaptioning and denied both parties’ motions to compel discovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether identity of the real party in interest affects Board jurisdiction | Real party is PWC/Agility; recaptioning should be allowed and appeal can proceed | Agility LSC does not exist; standing and certification are defective | Identity does not affect jurisdiction; Board lacks jurisdiction because contract was with CPA and CPA disputes are governed by Iraqi law; dismissal stands without prejudice |
| Whether lack of existence of Agility LSC alters dismissal from without prejudice to with prejudice | Agility urged substitution/recaptioning to PWC/Agility to preserve appeal | Gov't argued non-existent claimant undermines standing and certification, warranting prejudice | Lack of standing is a jurisdictional defect that requires dismissal without prejudice; no change to nature of dismissal |
| Whether the Board should decide who is the real party in interest under applicable law | Plaintiff asked Board to find PWC/Agility is the real party and recaption | Gov't challenged certification and urged inquiry into who may sue | Determination requires application of Iraqi substantive law; parties failed to present Iraqi law and Board lacks expertise, so Board declined to decide real-party-in-interest under Iraqi law |
| Whether discovery motions should be granted (motions to compel) | Appellant sought contingent discovery if gov't prevailed; otherwise opposed | Gov't sought discovery about CDA certification, Agility LSC status, who knew when it didn’t exist | Denied: CDA does not apply so certification is irrelevant; facts about Agility LSC’s discovery are not relevant to remand; discovery limited by relevance under Rule 26(b)(1) |
Key Cases Cited
- Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (discusses jurisdictional dismissal principles)
- Pacific Gas & Electric Co. v. United States, 838 F.3d 1341 (lack of standing is a jurisdictional defect warranting dismissal without prejudice)
- Maniere v. United States, 31 Fed. Cl. 410 (standing inquiry considers whether claimant is proper party to bring controversy)