UTi, United States, LLC
Docket: ASBCA 60188

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of --
UTi, United States, LLC 
Under Contract No. 000000-00-0-0000 
APPEARANCES FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 60188 
Dis mas N. Locaria, Esq. 
Melanie Jones Totman, Esq. 
Venable LLP 
Washington, DC 
James Y. Boland, Esq. 
Venable LLP 
Tysons Comer, VA 
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. 

I 1 
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 
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 I CA/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 
I CA/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 
(Signatures continued) 
JAMES R. SWEET 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
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 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I C-Ol!Cfil /) 
/'·~----
l__.--" -----
OWEN C. WILSON 
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 No. 60188, Appeal of UTi, 
United States, LLC, rendered in conformance with the Board's Charter. 
Dated: 
9 
JEFFREYD. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals