Asahi General Trading & Cont. Co. W.L.L.
Docket: ASBCA 62445
Decision date: 2020-12-18

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeal of -- ) 
 ) 
Asahi General Trading & Cont. Co. W.L.L. ) 
 ) 
   ) 
 
APPEARANCE FOR THE APPELLANT: Fred T. Pribble, Esq. 
  Valrico, FL 
  
APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq. 
  DLA Chief Trial Attorney 
Robin E. Walters, Esq. 
Michael J. Kerrigan, Esq. 
  Trial Attorneys 
  DLA Disposition Services 
  Battle Creek, MI 
 
OPINION BY ADMINISTRATIVE JUDGE MELNICK DENYING THE 
GOVERNMENT’S MOTION TO DISQUALIFY APPELLANT’S COUNSEL 
 
Asahi General Trading & Contracting Co. W.L.L. (Asahi) seeks compensation 
arising from an alleged settlement requiring the extension of the terms of a scrap 
removal agreement in Kuwait.  Before we address jurisdictional or merits issues, the 
government requests that we disqualify Asahi’s counsel, who is a former General 
Counsel of the Defense Logistics Agency (DLA).  The government contends Asahi’s 
counsel possesses confidential information that he would necessarily use to its 
disadvantage or disclose.  We deny the motion.   
 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
 
I. Asahi’s Allegations 
 
The following allegations are taken from the relevant claims and complaint.   
 
In July of 2015, the Defense Logistics Agency, Disposition Services (DLA-DS or 
government) awarded Asahi related contracts for the removal of different types of scrap 
materials in Kuwait (the Kuwait contract).  Then on February 12, 2016, DLA-DS issued 
related contracts for scrap removal in Qatar (the Qatar contract).1  (Compl. ¶¶ 5, 7)    
                                              
1 Presumably for ease of reference, the parties referred to each set of related contracts as 
a single contract.   
ASBCA No.  62445 
Under Contract No. 49065890 et al. 

2 
 
 On October 8, 2017, Asahi submitted a certified claim to the contracting officer 
for $1,347,625 allegedly due under the Qatar contract.  Among other things, Asahi 
claimed that, despite the government’s promise that its defense cooperation agreement 
with Qatar authorized Asahi to purchase and resell scrap domestically, Qatar customs 
officials delayed and obstructed its removal, while also barring resale of some of the 
scrap within the country.  Asahi suggested the government was contractually 
responsible for the customs officials’ acts.  Asahi also alleged that the government had 
previously encountered problems with Qatar’s customs officials and did not disclose 
those facts.  (R4, tab 11; compl. ¶ 7)   
 
 In July of 2018, the parties settled the Qatar contract claim.  Asahi promised to 
withdraw the claim in return for an extension of the Kuwait contract’s performance 
period (compl. ¶¶ 9-15).  The parties agreed the new Kuwait extension would provide 
Asahi with sufficient business to cover its Qatar contract losses (compl. ¶¶ 11, 13).  
Later in July, the contracting officer notified Asahi that the Kuwait contract had not 
been extended because the settlement was not approved by government lawyers 
(compl. ¶ 16).  In September of 2018, the parties resumed settlement discussions.  
At that time, the contracting officer’s counsel refused Asahi’s request for a three year 
extension of the Kuwait contract, countering with an offer of six months.  The 
government assured Asahi that more than sufficient scrap would be generated to 
compensate Asahi for the Qatar claim.  (Compl. ¶ 22)  On September 20, 2018, the 
parties entered another settlement agreement.  Again Asahi dropped its Qatar contract 
claim in return for a six month extension of the Kuwait contract.  (Compl. ¶ 24)     
 
 The government did not provide Asahi with the volume of scrap Asahi expected 
during the Kuwait contract extension (compl. ¶ 27).  In February of 2019, the government 
unilaterally extended the Kuwait contract again for four more months (compl. ¶ 28).  
Nevertheless, the volume of scrap remained below Asahi’s expectations (compl. ¶ 30).  
Asahi requested a third extension of the Kuwait contract but that was denied.  The 
government told Asahi that a new scrap contract for Kuwait would be awarded to another 
contractor, Royal Bridge International (RBI), in settlement of a claim brought by that 
company upon a Qatar scrap contract awarded to it in 2014.  (Compl. ¶ 31)  
 
 On September 11, 2019, Asahi submitted another certified claim.  This 
submittal renewed the original Qatar contract claim but also advanced a new claim that 
the government breached the July 2018 settlement promise to extend the Kuwait 
contract and provide the agreed volume of scrap.  Additionally, Asahi contended that 
the subsequent September 20, 2018 settlement was null and void but should be 
reformed to a no cost transfer of scrap.  Asahi demanded the $1,347,625 it originally 
sought under the Qatar contract claim, plus additional costs.  Alternatively, it requested 
reformation, disgorgement of payments, and other performance.  (R4, tab 28; compl. 
¶ 35)  The contracting officer denied the claim on January 10, 2020 (R4, tab 31).   

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Asahi has appealed only the portion of the contracting officer’s decision 
denying the new claim based upon the settlement.      
 
II.  Asahi’s Counsel 
 
The parties do not dispute that Asahi’s counsel, Mr. Fred T. Pribble, was the 
General Counsel of DLA from 2006 until his retirement on May 1, 2016.  As General 
Counsel, he oversaw the activities of DLA’s 140 attorneys, including those supporting 
DLA-DS (gov’t mot. ex. B (“Malcom decl.”) ¶¶ 4, 8; app. opp’n ¶ 38).  He advised the 
Director of DLA regarding the agency’s activities and missions (Malcom decl. ¶ 5).  He 
participated in confidential discussions about numerous topics with the Chief Counsel 
of DLA’s subordinate commands, including DLA-DS.  Those conversations covered 
management, contract, and operations issues in Qatar and Kuwait.  He also talked about 
personnel matters.  (Id. ¶ 2)  Additionally, Mr. Pribble received reports from DLA-DS 
and other confidential sources about disposition and customs activities in Qatar, as well 
as coordination with the United States military and Qatar government (id. ¶ 6).  
Mr. Pribble was knowledgeable about DLA processes and workings, legal and 
contracting offices, and about particular individuals (id. ¶ 7).  Mr. Pribble had access to 
all DLA attorney performance evaluations between 2008-2010 (app. opp’n ¶ 37; gov’t 
reply at 19-20).  Prior to joining DLA, Mr. Pribble was the Staff Judge Advocate for the 
United States Central Command (CENTCOM) between 2003-2006 (app. opp’n ¶ 26).  
Between 1997-1999, he was a staff attorney at CENTCOM who advised in the effort to 
re-negotiate the defense cooperation agreement with Qatar (id. ¶ 27).    
   
DECISION 
 
 The government argues that Mr. Pribble is ethically barred from representing 
Asahi.  It maintains that, while General Counsel of DLA, he gained extensive access to 
confidential information that he would use to the government’s disadvantage.  The 
government cites Mr. Pribble’s awareness of agency practices and procedures, his 
receipt of reports about customs issues in Qatar, his knowledge of agency contracts and 
the agreement between the United States and Qatar, and his familiarity with the prior 
performance of the contracting officer’s counsel.  Relying upon Rules 1.9(c) and 1.11(a) 
of the American Bar Association (ABA) Model Rules of Professional Conduct (Model 
Rules), the government seeks the Board to disqualify Mr. Pribble from this appeal.     
 
I. Applicable Standards 
 
 The Board functions in a judicial capacity.  United States v. Utah Constr. & 
Mining Co., 384 U.S. 394, 422 (1966); SWR, Inc., ASBCA No. 56708, 12-1 BCA 
¶ 34,988 at 171,945.  Inherent in that role is the discretion to regulate attorney conduct 
in order to control the Board’s proceedings, protect its exercise of judicial authority, 

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and preserve the integrity of its process.  See In re Bailey, 182 F.3d 860, 864 n.4 (Fed. 
Cir. 1999); Kenosha Auto Transport Corp. v. United States, 206 Ct. Cl. 888, 891 
(1975); Quantico Tactical Inc. v. United States, 148 Fed. Cl. 440, 445 (2020); Suffolk 
Constr. Co. v. GSA, CBCA No. 2953, 17-1 BCA ¶ 36,717 at 178,797 (finding the 
board statutorily empowered to protect the integrity of its proceedings).  Accordingly, 
the Board has entertained motions to disqualify counsel.  See AEC Corp., ASBCA 
No. 42920, 95-2 BCA ¶ 27,750.  Although the Board’s rules have not expressly 
adopted a specific code of professional responsibility, the Model Rules provide a 
broadly accepted set of standards for the legal profession.  Model Rules of Prof’l 
Conduct Preface (Am. Bar Ass’n 2020).  Along with relevant case law, they provide a 
guide for considering a disqualification motion.  Quantico Tactical Inc. v. United 
States, 148 Fed. Cl. at 445. 
 
 Model Rule 1.11(a)(1) provides, in relevant part, that a lawyer who previously 
served as a public officer or employee of the government “is subject to Rule 1.9(c).”  
Model Rules of Prof’l Conduct r. 1.11(a)(1).2  Rule 1.9(c) states the following:   
 
(c)  A lawyer who has formerly represented a client in a 
matter . . . shall not thereafter: 
 
(1)  use information relating to the representation to 
the disadvantage of the former client except as these 
Rules would permit or require with respect to a 
client, or when the information has become 
generally known; or  
 
(2)  reveal information relating to the representation 
except as these Rules would permit or require with 
respect to a client.      
 
Model Rules of Prof’l Conduct r. 1.9(c). 
 
A 1997 formal opinion by the ABA elaborates upon Rule 1.9(c)’s applicability 
to former government lawyers.  ABA Comm. on Ethics & Prof’l Responsibility, 
Formal Op. 97-409 (1997), Westlaw ABA Formal/Op. 97-409.  It explains that, 
though not automatically disqualified because of prior government work, a former 
government lawyer wishing to represent a private client against his previous employer 
                                              
2 Another part of the rule states that the lawyer “shall not otherwise represent a client 
in connection with a matter in which the lawyer participated personally and 
substantially as a public officer or employee” unless the government consents.  
Model Rules of Prof’l Conduct r. 1.11(a)(2).  The government does not 
contend that Mr. Pribble has violated this part of the rule. 

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is generally prohibited from using to the government’s disadvantage, or disclosing, 
information relating to his former representation.  The question turns upon whether the 
information relating to the prior representation would “necessarily be used or revealed 
in a new client’s cause.”  If zealous and competent representation of the new client 
would require such use or disclosure to the government’s disadvantage, the lawyer 
may not undertake the new representation.  Westlaw ABA Formal/Op. 97-409 at 7-9. 
 
The moving party bears the burden of proving that we should disqualify 
counsel.  Quantico Tactical Inc. v. United States, 148 Fed. Cl. at 445.  Mere surmise is 
inadequate.  See H20 Plus, LLC v. Arch Personal Care Prods., L.P., No. 10-3089 
(WJM), 2010 WL 4869096 at *6 (D.N.J. Nov. 23, 2010).  Instead, the government 
must show that there is a reasonable probability that confidential information will be 
used or disclosed by Mr. Pribble.  See Waterloo Capital Partners, LLC v. BWX Ltd., 
No. 18-CV-6542 (RA), 2020 WL 1489813 at *2 (S.D.N.Y. March 27, 2020).  We will 
decide the question based upon the established record and the parties’ submissions.  
See AEC Corp., 95-2 BCA ¶ 27,750 at 138,352.   
 
We are reluctant to disqualify counsel because it is such a drastic act.  It separates 
the client from his counsel of choice and is often sought for tactical reasons.  See Minn. 
Chippewa Tribe v. United States, 991 F.2d 810 (Fed. Cir. 1993) (Table), available 
at 1993 WL 68052 at *3 (quoting Bd. of Educ. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 
1979)); see also United States v. Quest Diagnostics Inc., 734 F.3d 154, 166 (2d Cir. 
2013) (explaining that because disqualification may impede the pursuit of meritorious 
litigation, remedies should be limited for ethical violations to those necessary to avoid 
tainting the trial); Andersen v. Valley Cty., No. 1:16-cv-00554-CWD, 2017 WL 2311668 
at *3 (D. Idaho May 26, 2017) (stating that disqualification motions require particularly 
strict scrutiny because of the misuse of the process for tactical purposes and any remedy 
should assure fairness to the parties and the integrity of the judicial process); Hulzebos v. 
City of Sioux Falls, No. 13-4024, 2013 WL 5297152 at *2 (D.S.D. Sept. 19, 2013) 
(noting disqualification is a drastic device that courts should hesitate to implement 
except when absolutely necessary); H20 Plus, LLC v. Arch Personal Care Prods., L.P., 
No. 10-3089 (WJM-MF), 2011 WL 1078584 at *3 (D.N.J. March 21, 2011) (stating that 
motions to disqualify are generally disfavored due to their drastic consequences and 
therefore the movant must meet a high standard of proof); United States v. Philip 
Morris, Inc., 312 F.Supp.2d 27, 43-44 (D.D.C. 2004) (observing that disqualification is 
drastic and courts should hesitate to impose it except when absolutely necessary, noting 
that such motions must be scrutinized given their increasing use for strategic purposes).  
Mr. Pribble undoubtedly accessed a range of confidential information while General 
Counsel of DLA.  Our task is to consider whether the government has satisfied its heavy 
burden of proving he possesses information that would necessarily be used or disclosed 
in this appeal, and that disqualification is absolutely necessary.     
 

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II.  Mr. Pribble’s General Knowledge of DLA’s Practices and Procedures 
 
First, the government contends that Mr. Pribble should be disqualified because 
he generally possesses knowledge of DLA’s contracting activities, as well as its 
litigation practices and procedures.  It complains that knowledge would be used 
against it in both the discovery and trial phases of the appeal.  That argument could be 
advanced against numerous former government attorneys handling cases involving 
their former agencies.  However, the ABA has clarified that general knowledge of 
agency policies and practices are ordinarily not disqualifying under Rule 1.9(c).  
Model Rules of Prof’l Conduct r. 1.9 cmt. 3.  “[A] former government lawyer will 
almost always have general knowledge of policies and practices of her former agency” 
as well as “information about the inner workings of the client, but we do not suppose 
such information is necessarily disqualifying under Rule 1.9(c).”  ABA Formal Op. 
97-409 n.17.  If general knowledge of agency practices disqualified a former lawyer 
from representing clients against it, Rule 1.9(c) would become a near blanket bar.  We 
conclude it was not intended to apply so broadly. 
 
III.  Mr. Probble’s Knowledge of Qatar Customs Issues and the United States’  
       Defense Cooperation Agreement With Qatar 
 
The government’s more specific contentions primarily focus upon Asahi’s 
Qatar scrap contract and its October 8, 2017 claim upon it.  That claim alleged that, 
given the terms of a defense cooperation agreement with Qatar, the government was 
responsible for preventing Qatar’s customs officials from interfering with Asahi’s 
performance.  Also, the government failed to disclose facts about earlier problems it 
encountered with those officials.  The government suggests the merits of that claim 
remain at issue in this appeal.  It says Mr. Pribble’s knowledge of information about 
Qatar customs matters learned while at DLA, and his familiarity with the cooperation 
agreement between the government and Qatar gained while at CENTCOM, preclude 
him from representing Asahi now.   
 
The government has misstated the nature of the appeal.  The underlying merits 
of Asahi’s October 8, 2017, Qatar contract claim are not before us.  According to the 
complaint, the parties settled that claim in 2018 when they extended the term of the 
Kuwait contract and the government promised Asahi enough scrap in Kuwait to 
compensate it for the $1,347,625 it had sought in the Qatar contract claim (compl. 
¶¶ 9-24).  Although Asahi’s later September 11, 2019 submittal purported to both 
renew the Qatar contract claim and advance a new claim based upon the 2018 
settlement, Asahi only appeals the denial of the new claim.3  Asahi’s demand here for 
                                              
3 We express no opinion in this decision on the government’s motion to disqualify 
counsel as to whether the Board may exercise jurisdiction over an appeal from 
that claim.     

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damages that include the $1,347,625, as well as other associated costs and losses, is 
based upon the settlement agreement’s alleged promise to extend the Kuwait contract’s 
performance period and provide Asahi with scrap worth that amount of money.  Thus, 
the complaint describes the alleged settlement’s terms.  It details Asahi’s reliance upon 
the settlement, government repudiation, government pressure to accept alternate terms, 
government delays, the government’s curtailment of the time allowed to remove scrap, 
the government’s failure to provide the required volume of scrap, and the government’s 
misapplication of applicable law to the transaction.  All of these alleged events occurred 
after Mr. Pribble retired in 2016 and have nothing to do with affairs in Qatar.  (Compl. 
¶¶ 9-32, 47-67)  The government has failed to show that Mr. Pribble’s knowledge about 
matters in Qatar would necessarily be used or revealed by him in this appeal.   
 
IV.  Mr. Pribble’s Knowledge of the Contracting Officer’s Counsel 
 
The government’s contentions are no more convincing when they regard the 
matter before the Board.  The government refers to an extraneous comment embedded 
by Asahi in the complaint’s description of the breached settlement saying that, at some 
point during the parties’ negotiations in 2018 through 2019, the contracting officer’s 
counsel introduced advocacy and bias into the discussions (compl. ¶ 61).  According to 
the government, its counsel will have to testify about this allegation and Mr. Pribble 
will be able to question her with the benefit of confidential knowledge of her past 
performance evaluations.  The government suggests this knowledge will provide 
Mr. Pribble with evidence of other occasions where counsel advocated or displayed 
bias that can be used to its disadvantage.   
 
The relevance of Asahi’s incidental remark that the contracting officer’s 
counsel advocated for her client is not apparent to us.  Putting that aside momentarily, 
Mr. Pribble admits that he had access to all of the performance evaluations in the 
General Counsel’s office prior to the abolishment of the National Security Personnel 
System (NSPS), a short lived Department of Defense pay system that the government 
says applied to DLA between 2008-2010 (app. opp’n ¶ 37; gov’t reply at 19-20 n.11).4  
But the possibility that Mr. Pribble’s knowledge of counsel’s performance reviews 
from over a decade ago will somehow assist in either discovery or at trial to prove an 
allegation about her conduct during the last two years seems very remote, especially 
given the tenuous nature of the allegation in question.  It does not dictate disqualifying 
                                              
4 The government has not proven that Mr. Pribble had any additional access.  It has 
only presented vague testimony that Mr. Pribble discussed evaluations of DLA 
attorneys with other supervisors, and possessed knowledge about particular 
individuals.  But it conspicuously fails to identify the contracting officer’s 
counsel as one of those attorneys.  (Malcom decl. ¶¶ 2, 7)  Mr. Pribble denies 
any access to, or knowledge of, performance evaluations after NSPS was 
repealed (app. opp’n ¶ 37).        

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Mr. Pribble.  See Waterloo Capital Partners, LLC v. BWX Ltd., 2020 WL 1489813 
at *2 (rejecting disqualification under Rule 1.9(c) when the motion was based only 
upon generalized, conclusory allegations). 
 
V.  Mr. Pribble’s Knowledge of the Qatar Contract’s Origins 
 
Finally, the government quibbles about an opinion Asahi included in a footnote 
to the complaint characterizing the Qatar scrap contracts as “poorly conceived and 
executed” (compl. ¶ 65 n.9).  Speculating that this thought might have been informed 
by inside information possessed by Mr. Pribble, the government insists he must go.  
We are unconvinced.  At best the remark is peripheral to the actual thrust of the 
complaint at that point, which is that the government misapplied applicable statutory 
law settling with Asahi, though it appears to have correctly applied that law in the RBI 
settlement (compl. ¶¶ 65-67).  The government does not suggest Mr. Pribble possesses 
confidential information relevant to those allegations, which is not surprising because 
he had retired from DLA prior to the negotiation of the settlements.  A fair reading of 
the complaint leads us to conclude that how well conceived the Qatar contracts might 
have been is beside the point that Asahi actually seeks to establish.  
 
In sum, the government has not met its heavy burden to show that Mr. Pribble 
possesses confidential information that would necessarily be used or revealed in this 
appeal, much less that it is absolutely necessary that we impose the drastic sanction of 
disqualification.   
 
CONCLUSION 
 
The motion is denied.   
 
 Dated:  December 18, 2020 
 
 
 
MARK A. MELNICK 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
(Signatures continued) 
  


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I concur 
 
 
 
 I concur 
 
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 No. 62445, Appeal of Asahi 
General Trading & Cont. Co. W.L.L., rendered in conformance with the Board’s 
Charter. 
 
 Dated:  December 18, 2020 
 
 
  
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals