Najmaa Alshimal Company ( 2021 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of - )
)
Najmaa Alshimal Company ) ASBCA No. 62701)
Under Contract No. H92277-18-P-0004 )
APPEARANCE FOR THE APPELLANT: Mr. Kadhum Husein
Manager
APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq.
Air Force Chief Trial Attorney
Lawrence M. Anderson, Esq.
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE HERZFELD ON THE GOVERNMENT’S
MOTION TO DISMISS FOR LACK OF JURISDICTION
Appellant, Najmaa Alshimal Company (Najmaa Alshimal), asserts that the United
States Special Operations Command Central (the government), owes the company
payment after it submitted a quotation for a contract to provide school supplies for
children and teachers in Syria. Respondent, the Department of the Air Force (the Air
Force), moves to dismiss Najmaa Alshimal’s appeal for failure to submit a certified claim
with a sum certain. For the reasons discussed below, we grant the Air Force’s motion.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
On April 5, 2018, the government issued request for quotations No. H92277-18-
T-0004 (the Solicitation) for a contractor to “provide prepacked backpacks, prepacked
teacher kits and classroom furniture for children and teachers in Syria” (compl., attach. 1
at 6).1 On or about April 11, 2018, Najmaa Alshimal submitted its quotation in response
to the Solicitation (compl., attach. 2).
On April 13, 2018, the government’s contract specialist requested that Najmaa
Alshimal provide its company profile and confirm the company was registered in the
Joint Contingency Contracting System or the System for Award Management (compl.,
attach. 4). The government issued an evaluation notice to Najmaa Alshimal (although
1 Najmaa Alshimal submitted 25 attachments to its complaint (labeled “Attachment 1”
through “Attachment 26” with no document labeled as “Attachment 10”).
Although the Board deemed these attachments as a supplemental Rule 4 file, we
will refer to these documents as attachments to the complaint for ease of reference.
neither the complaint nor the Rule 4 file indicate the specific date) (compl., attach. 8; R4,
tab 1). On May 1, 2018, the contracting officer requested best and final offers from
Najmaa Alshimal (although the request stated a new proposal was not required and the
company could rely on its initial proposal). Najmaa Alshimal did not submit a final
proposal with further revisions. (R4, tab 5)
The parties dispute whether the government awarded a contract to Najmaa
Alshimal (a dispute central to Najmaa Alshimal’s arguments that we do not need to
resolve today, as discussed below). The Air Force states that the government did not
make a contract award to Najmaa Alshimal, but instead awarded a contract to another
offeror – Trinity Logistics Source (Trinity). (Gov’t mot. at 3) The Air Force provides
the government’s evaluation document and the signed contract as evidence that the
Government made award to Trinity and not Najmaa Alshimal (R4, tab 4 (Evaluation
Memorandum); R4, tab 6 (contract between Government and Trinity)). On the other
hand, Najmaa Alshimal included a May 5, 2018 email notice of award with its notice of
appeal to the Board and later submitted a copy of a signed contract with an electronic
signature from the contracting officer and a representative from Najmaa Alshimal
(compl., attachs. 11, 13; R4, tab 7 at 3). The Air Force asserts that the contract and the
award notice email provided by Najmaa Alshimal were doctored (gov’t mot. at 3,
declaration of contracting officer Benjamin Farber at 2-3).
On September 6, 2018, Najmaa Alshimal’s representative wrote to numerous
government officials claiming that the government was “evad[ing] responsibility for this
contract” (app. resp., attach. 27). The representative stated, “I want a solution to my
situation . . . . I am tired a lot and made an effort and spent a lot of money and now I
want money and this is my right.” The representative claimed that Najmaa Alshimal had
a contract and “[n]ow you are responsible for this.” Id.On October 9, October 28, November 21, December 26, 2018, and August 15,
2020, Najmaa Alshimal’s representative sent emails to numerous military email
addresses repeatedly stating, among other things, “The Contracting office writing this
contract refuses and denies this contract and they do not want to discuss me and I have
conclusive evidence that this contract is true and I received the contract from the email of
the government” (compl., attachs. 18, 20-26; app. resp., attach. 29). “I want to find
someone to help me and verify everything because it is not my fault and I have no fault”
(compl., attachs. 18, 20-26; app. resp., attach. 29). “I ask the government for an
immediate meeting with my company in Erbil and I will bring documents, evidence and
everything on this contract and I will accept the decision of the government after that”
(see, e.g., app. resp., attach. 29 (August 15, 2020 email)).
In the midst of these emails, Najmaa Alshimal also claims it sent an email on
December 26, 2018 limited to the following statement:
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I attached the signed CDA to this contract. Please save this
document in the contract file it’s [sic] will be required later. I
will save a[n] appeal with the board. Thank you[.]
(App. resp., attach. 28) 2 Appellant also asserts that the email attached a document with
the following certification:
I certify that the request for equitable adjustment is made in
good faith; that the supporting data are accurate and complete
to the best of my knowledge and belief; that the amount
requested accurately reflects the contract adjustment for
which the contractor believes the Government is liable; and
that I am duly authorized to certify the request for equitable
adjustment on behalf of the contractor.
(App. resp., attach. 30) The certification uses the term “request for equitable adjustment”
instead of “claim,” but is otherwise taken verbatim from the certification required by the
Disputes clause (Federal Acquisition Regulation (FAR) 52.233-1), which the Solicitation
and Najmaa Alshimal’s alleged contract incorporated by reference through the Contract
Terms and Conditions – Commercial Items clause (JAN 2017), FAR 52.212-4. (Compl.,
attach. 1 at 12, compl., attach. 11 at 14) The email and certification did not state a sum
sought or the basis of the alleged dispute (app. resp., attachs. 28, 30). In fact, we have
reviewed all correspondence in the record from Najmaa Alshimal to the government and
the company never provided any dollar amount prior to or with the CDA certification in
2018 (see compl., attachs. 14, 16, 18, 20-26).
On October 20, 2020, the Board docketed Najmaa Alshimal’s appeal. The Notice
of Appeal recounted Najmaa Alshimal’s emails and stated that the government never
responded after the company provided information regarding the contract. Najmaa
Alshimal stated: “Our company spent $2,320,000 on the contract and we [are] asking
[for] the money from the government. We would like to appeal the contract and open an
issue with ASBCA.”
On December 13, 2020, Najmaa Alshimal filed its complaint, which stated that the
company demanded the “full amount in the contract ($3,159,360.00) in additional [sic] to
2 The government’s contracting officer states that, “after an extensive search,” he was
unable to find the email and attached certification in the government’s contract
files (gov’t reply, contracting officer’s statement of facts at 1-2). We need not
decide whether this email was ever actually sent, and make no finding either way,
because the outcome of this motion rests solely upon the question of whether a
sum certain was ever requested by Najmaa Alshimal.
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all the associated damages and losses due to the delay in reimbursing the amount of the
contract from the time of award until this time.” (Compl. at 3)
The Air Force moved to dismiss Najmaa Alshimal’s appeal for failure to certify its
claim with a sum certain (gov’t mot. at 5). Najmaa Alshimal responded and the Air
Force replied. The motion is fully briefed and ready for resolution.
DECISION
Najmaa Alshimal, as the proponent of the Board’s jurisdiction, bears the burden of
establishing jurisdiction by a preponderance of the evidence. CCIE & Co., ASBCA
Nos. 58355, 59008, 14-1 BCA ¶ 35,700 at 174,816; see also K-Con Bldg. Sys., Inc. v.
United States, 778 F.3d 1000, 1004 (Fed. Cir. 2015). “The facts supporting jurisdiction
are subject to our fact-finding upon a review of the record.” CCIE & Co., 14-1 BCA
¶ 35,700 at 174,816.
The Board’s jurisdiction under the Contract Disputes Act (CDA) depends on the
contractor submitting its claim to the relevant contracting officer and a final decision on,
or deemed denial of, the claim. 41 U.S.C. §§ 7103(a) & (f), 7104(a), 7105(e)(1)(A);
K-Con Bldg. Sys., 778 F.3d at 1005; CCIE & Co., 14-1 BCA ¶ 35,700 at 174,816. The
CDA does not define a claim, but the United States Court of Appeals for the Federal
Circuit has adopted the FAR’s definition of “claim,” which also appears in the Disputes
clause: “[A] written demand or written assertion by one of the contracting parties
seeking, as a matter of right, the payment of money in a sum certain, the adjustment or
interpretation of contract terms, or other relief arising under or relating to the contract.”
K-Con Bldg. Sys., 778 F.3d at 1005 (quoting Reflectone, Inc. v. Dalton, 60 F.3d 1572,
1575 (Fed. Cir. 1995) (en banc) (quoting FAR definition of “claim”)); FAR 2.101
(definition of “claim”); (R4, tab 6 at 13 (incorporating FAR 52.212-4, which incorporates
the Disputes clause – FAR 52.233-1 – that uses this definition)); CCIE & Co., 14-1 BCA
¶ 35,700 at 174,816.
A claim must “adequately specify both the amount sought and the basis for the
request[.]” K-Con Bldg. Sys., 778 F.3d at 1005. The CDA claim need not take “‘any
particular form or use any particular wording,’ so long as it has ‘a clear and unequivocal
statement that gives the contracting officer adequate notice of the basis and amount of the
claim.” Hejran Hejrat Co. v. United States Army Corps of Eng’rs, 930 F.3d 1354, 1357
(Fed. Cir. 2019) (quoting M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323,
1327 (Fed. Cir. 2010)). To provide notice for the amount of any monetary claim, the
contractor must provide a sum certain in its written communication to the contracting
officer. Sweet Star Logistic Serv., ASBCA No. 62082, 20-1 BCA ¶ 37,704 at 183,046.
To determine whether a contractor has submitted a CDA claim, we apply a common
sense analysis, looking at specific communications on a case-by-case basis and the
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“totality of the correspondence between the parties.” CCIE & Co., 14-1 BCA ¶ 35,700at 174,816.
Here, Najmaa Alshimal’s attempted CDA claim has failed to specify the amount
of its claim in a sum certain. Najmaa Alshimal points to three communications to
establish that it submitted a proper claim to the government. (App. resp. at 1) First,
Najmaa Alshimal points to a September 6, 2018 email requesting a “solution” and
demanding “money” (app. resp., attach. 27). Second, Najmaa Alshimal cites its
December 26, 2018 email that attached the certification and requested the government to
“save this document in the contract file” in anticipation of an appeal to the Board (app.
resp., attach. 28). Third, Najmaa Alshimal points to an August 15, 2020 email to
numerous military email addresses that requested “an immediate meeting with my
company in Erbil” to allow the company to “bring documents, evidence and everything
on this contract . . . . to reveal the truth” about what happened (app. resp., attach. 29).
None of these documents include a sum certain.
In fact, as we noted above, none of the correspondence in the record from Najmaa
Alshimal to the government provided any dollar amount prior to or with the CDA
certification in 2018. Indeed, Najmaa Alshimal did not provide a sum certain for its
supposed claim until it filed its notice of appeal with the Board nearly two years later in
October 2020, when it indicated it spent $2,320,000 in preparing to perform the contract.
And, Najmaa Alshimal increased the amount sought when it filed its complaint in
December 2020 to $3,159,360, which was Najmaa Alshimal’s price in its quotation for
all the work. (Compl. at 3) Najmaa Alshimal’s complaint also asserts other “damages
and associational losses” for which it fails to provide any dollar value. Id. Thus, Najmaa
Alshimal failed to submit a claim with a sum certain.
Ultimately, because Najmaa Alshimal did not provide a sum certain with its
certification, it has failed to submit a claim under the CDA and that deprives us of
jurisdiction over this appeal. 3
3 Najmaa Alshimal’s correspondence with the Government and its arguments before the
Board center on whether it had a contract. In October through December 2018,
Najmaa Alshimal asserted that the company received the contract but the
Government “denies this contract[.]” (Compl., attachs. 17-18, 20-23) And, here,
the Air Force has denied it entered a contract with Najmaa Alshimal and asserted
another entity — Trinity —received the contract (R4, tab 6). We need not reach
this disputed question because Najmaa Alshimal failed to submit a claim with a
sum certain.
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CONCLUSION
For the reasons discussed above, the Board dismisses Najmaa Alshimal’s appeal
for lack of subject matter jurisdiction based on the contractor’s failure to submit a claim
with a sum certain as required by the CDA.
Dated: June 2, 2021
DANIEL S. HERZFELD
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
RICHARD SHACKLEFORD J. REID PROUTY
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. 62701, Appeal of Najmaa
Alshimal Company, rendered in conformance with the Board’s Charter.
Dated: June 3, 2021
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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