Washington Star Construction Company ( 2016 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of-- )
)
Washington Star Construction Company ) ASBCA No. 60644
)
Under Contract No. W9 IJA4-12-C-7131 )
APPEARANCE FOR THE APPELLANT: Mr. Jaweed Alami
Managing Director
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
MAJ Deidre K. Baker, JA
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE PEACOCK ON THE GOVERNMENT'S
MOTION TO DISMISS FOR LACK OF JURISDICTION
The government moves to dismiss this appeal for lack of jurisdiction, arguing that
no "cognizable" claim was submitted to a contracting officer (CO) pursuant to the
Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109, prior to the filing of the
appeal. We grant the motion.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. On 5 July 2012, the government awarded Contract No. W91JA4-12-C-7131
(contract), in the amount of $1,897,160.17, to Washington Star Construction Company
(appellant) to construct buildings and provide upgrades for an Afghan National Police
(ANP) District building and Central Unit Headquarters in Kabul Province in Afghanistan
(R4, tab 1 at 1-3). The Notice to Proceed was issued on 14 July 2012 (R4, tab 2).
2. By invoice dated 6 November 2012, appellant requested payment in the amount
of Afghani (AFN) 46,089,930 for completion of 50% of the project (R4, tab 3). The
requested amount was paid to appellant by voucher dated 30 November 2012 (R4, tab 4).
3. Modification No. POOOOl, effective 27 April 2013, added T-Walls, a guard
tower and upgrades on the project, and increased the price of the contract by $56,950.17
(R4, tab 5 at 1).
4. By correspondence dated 22 July 2013, appellant submitted an invoice to the
government for AFN 23,044,965 for payment marking the completion of75% of the
project (R4, tab 8), and by voucher dated 16 August 2013, the government paid appellant
the invoice amount (R4, tab 10). In correspondence dated 4 November 2013, appellant
submitted an invoice described as "Final Payment" for AFN 25,831,477.58 which also
included the following:
Release of Claims: Know all men by these present[], in
consideration of the premise [sic] and sum of AFN
94,966,372.58 of which AFN 69,134,895.00 has been paid,
and a balance due of AFN 25,831,477.58 is to be paid by the
United Sates Government under the above noted contract, the
undersigned contractor does release and discharge the
Government, its officers, agents and employees, of and from
all liabilities, obligations and claims whatsoever in law and
equity arising out of or by virtue of said contract, except
specified claims in stated amounts, or in estimated amounts
when the amounts are not susceptible of exact statement by
the contractor, as follows: None.
(R4, tab 14)
5. By voucher dated 30 December 2013, the government made a payment of
AFN 25,831,477.58 to appellant (R4, tab 15). A contract completion statement
(DD 1594) was signed 7 January 2014, reflecting a completion date of 4 November 2013
(R4, tab 16).
6. On 24 June 2016, appellant emailed its notice of appeal to the Board,
requesting processing by the Board of its attached letter indicating it had provided a quote
of $142,000 for extra work on the contract and had been told a modification would be
issued adding $144,000 to the contract. Appellant contends it performed the extra work
but never received a modification. The Board docketed the matter as ASBCA No. 60644.
By email dated 28 June 2016, appellant submitted the same document again, and it was
accepted as appellant's complaint.
7. On 9 August 2016, the government moved to dismiss the appeal for lack of
jurisdiction, asserting that the Board lacks jurisdiction because appellant never submitted
a claim in a sum certain to the CO. The government included the name and email of the
CO in a footnote in its motion (gov't mot. at 5 n.1 ). By email dated 11 August 2016, the
government again provided the CO's name and email address to appellant (Bd. corr. file).
8. Appellant responded to the government's motion by correspondence dated
16 August 2016, titled, "Objection motion to dismiss ASBCA: 60644." Appellant stated,
"our company was waiting for the modification and add amount of the $144,000 on the
contract, we are still waiting, therefore, it was the contracting officer mistake not send the
modification." (Syntax in original)
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9. On 6 October 2016, the Board received an email sent from appellant to the CO,
copying the Board and government counsel, attaching what was titled, "Certified Claim
for ASBCA: 60644." This submission repeated the same language regarding appellant's
quote of $142,000, the promise of $144,000, and the CO's failure to provide a
modification after it had performed the work. This document also included a claim
certification.
DECISION
The CDA states, "Each claim by a contractor against the Federal Government
relating to a contract shall be submitted to the contracting officer for a decision."
41 U.S.C. § 7103(a)(l). The Board's jurisdiction depends on the submission of a
claim to the CO, followed by a written CO's final decision or a "deemed denial" of
the claim. Where the claim is greater than $100,000, it must also be certified in
accordance with the CDA to be considered a claim. 41 U.S.C. § 7103(b ); FAR 2.101;
Bizhan Niazi Logistic Services Company, ASBCA No. 59205, 14-1 BCA ii 35,703 at
174,827 (citing Taj Al Safa Company, ASBCA No. 58394, 13 BCA ii 35,278 at 173,158).
Appellant, as the proponent of the Board's jurisdiction, must establish
that it submitted a written claim for payment to the CO prior to filing this appeal.
United Healthcare Partners, Inc., ASBCA No. 58123, 13 BCA ii 35,277 at 173,156.
Although the CDA does not define the term "claim," it is defined at Federal Acquisition
Regulation (FAR) 2.101:
Claim means 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.. .. A voucher, invoice, or other
routine request for payment that is not in dispute when
submitted is not a claim. The submission may be converted
to a claim, by written notice to the contracting officer as
provided in 3 3 .206( a), if it is disputed as to liability or
amount or is not acted upon in a reasonable time.
There is no requirement that a "claim" be submitted in any particular form or with
any particular words, but it must be in writing and provided to a CO, with "clear and
unequivocal statement[s] that gives the [CO] adequate notice of the basis and amount of
the claim." Contract Cleaning Maintenance, Inc. v. United States, 811 F.2d 586, 592
(Fed. Cir. 1987).
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There is no evidence in the record indicating that appellant submitted a claim to
the CO before filing this appeal on 24 June 2016. Appellant has failed to meet its burden
to establish the Board's jurisdiction, and therefore the appeal must be dismissed.*
CONCLUSION
The government's motion is granted. This appeal is dismissed without prejudice
to a timely appeal from the CO's denial, or deemed denial, of the contractor's 6 October
2016 claim in accordance with 41 U.S.C. § 7104.
Dated: 8 November 2016
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
/~~~~~
Administrative Judge
RJCHARDSHACKLEFORD
Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
• It appears appellant submitted a claim to the CO on 6 October 2016, subsequent to the
filing of this appeal (SOF ,-r 9), but that filing is of no significance in this appeal.
Under 41 U.S.C. § 7103(f)(2), the CO is required to issue a decision on any
submitted claim of more than $100,000 within 60 days of receipt or notify the
contractor of the time within which a decision will be issued. If appellant
disagrees with the CO's decision, it has 90 days from the date of receipt of the
decision to appeal to this Board. 41 U.S.C. § 7104(a). Alternatively, it has
12 months from receipt of the CO decision to bring an action in the United States
Court of Federal Claims. 41 U.S.C. § 7104(b)(l), (3). Should the CO fail to issue
a decision within the required time period, 41 U.S.C. § 7103(f)(5) authorizes the
contractor to appeal to the Board or bring an action in the court on a "deemed"
denied basis.
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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. 60644, Appeal of
Washington Star Construction Company, rendered in conformance with the Board's
Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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