KBAJ Enterprises, LLC t/d/b/a Home Again ( 2016 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
KBAJ Enterprises, LLC t/d/b/a Home Again ) ASBCA No. 60014)
Under Contract No. SPE5EM-14-V-5503 )
APPEARANCE FOR THE APPELLANT: Mr. Joseph Dente
General Manager, Member and
Corporate Officer
APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq.
DLA Chief Trial Attorney
John F. Basiak, Jr., Esq.
Steven C. Herrera, Esq.
J. Maxwell Carrion, Esq.
Trial Attorneys
DLA Troop Support
Philadelphia, PA
OPINION BY ADMINISTRATIVE JUDGE MELNICK ON
GOVERNMENT'S MOTION TO DISMISS
This appeal arises from an alleged deemed denial by the contracting officer (CO)
of appellant's claim seeking payment for delivered items under a purchase order (PO).
The government moves to dismiss the appeal for lack of jurisdiction, or alternatively, for
failure to state a claim upon which relief can be granted. Subsequent to the filing of the
government's motion, the Board, sua sponte, directed the parties to brief whether a sum
certain claim was submitted to a CO for a decision pursuant to the Contract Disputes Act
of 1978 (CDA), 41 U:S.C. §§ 7101-7109. In response, the government contends that no
proper claim was submitted to the CO. Because we conclude that a claim was not
submitted to a CO, we dismiss the appeal for lack of jurisdiction.
FINDINGS OF FACT
1. On 31 July 2014, Defense Logistics Agency Troop Support, Hardware
(DLA or government), issued unilateral PO No. SPE5EM-14-V-5503 (PO 5503) to
KBAJ Enterprises, LLC t/d/b/a Home Again 1 (KBAJ or appellant) for the delivery of
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The PO was issued to "KBAJ ENTERPRISES DBA." This appeal was filed by
appellant's representative in the name of KBAJ Enterprises LLC. At the
Board's direction, the parties clarified that the proper name of appellant in this
500 weather-resistant neoprene rubber strips for a total price of $4,505 (R4, tab 3
at 9-13 2; compl. ~ 4). The PO contemplated delivery of the quantities by
10 November 2014 (R4, tab 3 at 13).
2. Under block 6 of PO 5503, Ms. Sharon Sax is identified as the "Local
Admin" (R4, tab 3 at 9). Ms. Sax was not the CO who issued the PO.
3. On 17 September 2014, KBAJ received notice from DLA that 60 of the 500
shipped items were accepted (comp I. ~ 31; gov't mot. at 3, ~ 16). Two days afterward,
KBAJ received a partial payment of $540.60 for the accepted items without allegedly
receiving any information as to why the other shipped items were not accepted (comp I.
~~ 32-33; gov't mot. at 3, ~ 17).
4. Between September 2014 and March 2015, KBAJ corresponded with various
DLA personnel, including Ms. Sax and her supervisor Mr. Jonathan Hampton, who
identified himself as a Branch Chief for the "Industrial Hardware/Post Award-FHCC"
division, seeking an explanation as to why DLA withheld payment of $3,964.40, the
balance corresponding to the 440 items under PO 5503 that DLA did not formally
accept (R4, tab 4; app. supp. R4, tabs 3, 7).
5. In a letter dated 21 April 2015 addressed to Ms. Sax, KBAJ stated in part:
RE: CONTRACT NO. SPE5EM-14-V-5503
Dear Sharon:
You are listed as the local administrator of the
above referenced contract. As you know from our past
requests we have been attempting to resolve the alleged
issues associated with this award. To date we have been
ignored, stonewalled and simply not responded to with
regard to our attempts to resolve the alleged problems.
Therefore, pursuant to the terms and conditions of said
contract we are hereby asking if you would agree to submit
this matter to [Alternative Disputes Resolution (ADR)] for
resolution. Please let us know your position on or before
COB, Friday April 24, 2015. Ifwe do not hear from you
appeal is "KBAJ Enterprises, LLC t/d/b/a Home Again" (see Bd. corr. gov't ltr.
41 U.S.C. § 7103(a); CCIE & Co., 14-1 BCA
ii 35, 700 at 174,816.
The CDA does not define the term "claim"; however, FAR 2.101 defines a claim,
in relevant part, as "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." A claim is
not required to be submitted in any particular form or use any particular wording, but
must provide to the CO adequate notice of the basis and amount of the claim and request
a final decision. M Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1328
(Fed. Cir. 2010). The claim must also be submitted to a CO. To satisfy the submission
requirement, a contractor can either submit its claim directly to a CO or "to its primary
contact [with the government] with a request for a final decision of the contracting officer
and a reasonable expectation that such a request will be honored, and the primary contact
in fact timely delivers the claim to the contracting officer." Neal & Co., Inc. v. United
States, 945 F.2d 385, 388 (Fed. Cir. 1991); see also Gardner Zemke Co., ASBCA
No. 51499, 98-2 BCA ii 29,997.
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KBAJ's notice of appeal did not attach nor indicate a specific document that
serves as its claim in this appeal. Although KBAJ failed to respond to our order, its
complaint characterizes its 21 April 2015 letter as a "final demand letter" (finding 5).
We presume that KBAJ attempts to appeal from an alleged CO's deemed denial of this
letter. On its face, the 21 April letter is specifically addressed to Ms. Sax, who is
identified by KBAJ as a local administrator and is also identified as a "Local Admin"
under PO 5503 (findings 2, 5). The letter also copied Mr. Hampton who is identified
as a "Branch Chief' in prior correspondence (finding ~ 4 ). KBAJ' s notice of appeal to
the Board alleges that Ms. Sax and Mr. Hampton are COs, but a review of the record
does not substantiate that allegation. Therefore, we are unable to conclude that the
21 April letter was submitted directly to a CO for jurisdictional purposes.
We next determine whether KBAJ meets the CDA's submission requirement by
sending a proper claim to a primary contact. Pursuant to Neal, the requirement may be
met by submitting a claim to the primary contact "with a request for a final decision of
the contracting officer and a reasonable expectation that such a request will be
honored." 945 F.2d at 388. While the 21 April letter does expressly request a decision
from Ms. Sax, even if we were to assume she is a primary contact and the letter
otherwise meets the requirements of the FAR definition of a claim, the evidence fails
to establish that KBAJ intended and reasonably expected a decision from a CO. We
can reasonably infer that, based on statements made in KBAJ's 24 April letter to
CO Manco, KBAJ was aware that CO Manco was the cognizant CO on matters related
to PO 5503 and other POs, going so far as requesting her recusal (finding 8). Even
with this knowledge, KBAJ elected to submit its 21 April letter directly to Ms. Sax.
See Bruce E. Zoeller, ASBCA No. 55654, 07-1 BCA ~ 33,581 at 166,347 (appellant
was aware of the CO's identity under the lease, and submitted a claim seeking "a Chief
Accountable Officer's decision" that failed to establish a submission of a claim to a
CO under the CDA). Under these circumstances, we conclude that KBAJ intended to
resolve its dispute with Ms. Sax, or in other words, someone other than the cognizant
CO at the time. See D.L. Braughler Co. v. West, 127 F.3d 1476, 1481-82 (Fed. Cir.
1997) (letter styled as a claim with a certification and submitted to the resident
engineer, who was an authorized representative of the CO, did not meet submission
requirement because letter sought to resolve matter directly with resident engineer).
Therefore, KBAJ has failed to prove that it has satisfied the CDA's submission
requirement. We lack jurisdiction to entertain this appeal. 3
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Because we determine that KBAJ' s failure to submit a claim to a CO for a decision
deprives us of jurisdiction over this appeal, we need not address alternative
grounds for dismissal raised in DLA's motion.
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CONCLUSION
We dismiss the appeal for lack of jurisdiction, without prejudice to the
contractor's submission of a claim to a CO.
Dated: 22 November 2016
MARK A. MELNICK
Administrative Judge
Armed Services Board
of Contract Appeals
I concur
~#=
MARK N. STEMPLER
Administrative Judge
RICHARD SHACKLEFORD
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. 60014, Appeal ofKBAJ
Enterprises, LLC t/d/b/a Home Again, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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