Big Iraqi Company ( 2015 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Big Iraqi Company ) ASBCA No. 59822
)
Under Contract No. 000000-00-0-0000 )
APPEARANCE FOR THE APPELLANT: Gen. Sorih Hani
Owner/General Manager
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
MAJ M. Aaron Lee, JA
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE DELMAN ON THE GOVERNMENT'S
MOTION TO DISMISS FOR LACK OF JURISDICTION
The Department of the Army (government) has filed a motion to dismiss this
appeal for lack of jurisdiction. Big Iraqi Company (appellant) has filed in opposition
to the government's motion.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
1. On 15 August 2007, appellant signed a Memorandum of Agreement (MOA)
with the government (R4, tab 1). The Statement of Work (SOW) for this MOA
required appellant to provide and set up 26 trailers for use as temporary classrooms
in the village of Al Awad, Iraq, and also to provide 4 trailers for use as latrines as well
as related equipment (R4, tab 2). The MOA was written on the letterhead of the
"Department of the Army, Headquarters, pt Brigade, pt Cavalry Division, Camp Taji,
Taji Iraq, APO AE 09376" (R4, tab 1).
2. The MOA was signed on behalf of appellant by Sorih Hani and on behalf of
the government by CPT Gordon Bouchard as "Project Purchasing Officer" (PPO).
The MOA also identified Project Officer MAJ Edgar Bowdish as the government's
point of contact. (R4, tab 1)
3. The MOA was one page in length and contained the following terms of the
agreement:
A. The work will be completed within the time specified
and in accordance with the guidelines specified in the
Statement of Work (dated 10 August 2007).
B. Contractor agrees to complete the project for the
amount stated in the bid ($1,669,500.00).
C. All supplies will be new, not used.
D. Contractor will work with the Project Officer,
MAJ Bowdish, or his representative to ensure the setup
location is positively identified before beginning any
work.
E. This agreement will not become effective until funding
is approved and the contractor is notified by the Project
Officer to begin work.
F. Payment will be in U.S. Currency (cash) at time of
delivery. Payments will only be made for goods and
services received.
G. Delivery location for all supplies will be the work site.
(R4, tab 1)
4. The record contains a Declaration from then MAJ (now LTC) Bowdish.
Insofar as pertinent, the Declaration states that this MOA was awarded under the
Commanders' Emergency Response Program (CERP), and that the trailers were to be
used as a temporary school for Iraqi children. (R4, tab 8) In response, appellant
asserts (correctly) that the MOA did not reference or identify the agreement as a CERP
project, and therefore it did not enter the MOA with the understanding that it was a
CERP project (app. resp. at 6). Nevertheless, appellant does not contest the purpose of
the MOA, i.e., to provide a temporary school for Iraqi children in the village of Al
Awad, nor does it provide any evidence suggesting that these trailers were for the
direct benefit or use of the United States.
5. On 8 September 2007, appellant was issued a Notice to Begin Work (R4,
tab 3). On 3 November 2007, CPT Bouchard signed a Memorandum for Record
indicating that the government had accepted the work and that appellant was entitled
to full payment (R4, tab 4). According to the government, appellant was paid the full
amount specified in the MOA (R4, tab 8, Bowdish decl. ~ 3). According to appellant,
it has never beefi paid the amount specified in the MOA.
6. According to appellant: The PPO told appellant that the government would
email appellant when the payment was ready; appellant did not receive any email from
2
the government for 20 days thereafter; appellant then sent an email to the government
at that time but received no response; appellant tried to call the government by
telephone but the phone was "switched off'; appellant tried to go to the PPO's office on
19 December but was unable to do so because of a lack of an escort; at the beginning of
2008, appellant contacted the regional contracting command at Camp Taji, and was told
that the office of the 1st BDE, 1st Cavalry Division, was closed and "they can do nothing
to help me" (compl. at 1-2). Appellant has not provided any contemporaneous emails or
contemporaneous documents to support the contacts referenced herein.
7. The record also does not contain any email traffic or any other documented
contacts between the parties related to this matter for at least three years, 2009-2011.
It appears that in early 2012, appellant contacted "Army Contracting Command -
Rock Island" for assistance, and that on 29 February 2012, a contract specialist
emailed appellant, advising that she would look for any contract files and try to help
(R4, tab 5 at 2). The record, however, does not contain any government response.
8. In late 2014, appellant made additional email inquiries of the government. A
contracting officer (CO), Thomas A. Petkunas, advised appellant by email on 13 January
2015 that he would look into the matter. At his request, appellant also filed a certified
claim. (R4, tab 6 at 1-2, 7)
9. On 6 February 2015, the CO issued a final decision, denying appellant's
claim. The CO stated as follows:
A Memorandum of Agreement for Trailers for Al Awad
Temporary School, was written on 15 August [2007]. The
memorandum stated that payment would be made in U.S.
Currency (cash) at the time of delivery. There was no
contract issued for this agreement, nor is there any
documentation of funding. After reviewing the
documentation you submitted, it has been determined that
payment of your invoice cannot be made and your claim is
rejected. There are substantial irregularities in your
documentation and the circumstances surrounding your
request with [sic] cause me to doubt the authenticity of
your request.
(R4, tab 7) The CO's decision also advised appellant of its right to appeal to an
agency board of contract appeals. Appellant timely filed an appeal with this Board,
which was docketed as ASBCA No. 59822.
3
DECISION
It is undisputed that pursuant to the MOA and the related SOW, appellant was
required to deliver and set up trailers and related equipment to be used as a temporary
school for Iraqi children in the village of Al Awad, Iraq. As was stated in Wesleyan
Co. v. Harvey, 454 F.3d 1375, 1378 (Fed. Cir. 2006):
Pursuant to the CDA, the Board has subject matter
jurisdiction over "any express or implied
contract.. .entered into by an executive agency for -
(1) the procurement of property, other than real property
in being." 41 U.S.C. § 602(a). "Procurement" is "the
acquisition by purchase, lease or barter, of property or
services for the direct benefit or use of the Federal
Government." New Era Constr. v. United States, 890 F.2d
1152, 1157 (Fed. Cir. 1989).
Appellant, as proponent of our jurisdiction under the Contract Disputes Act (CDA),
41 U. S.C. §§ 7101-7109, has the burden to show that this procurement was for the
direct benefit or use of the United States. It has not done so. Accordingly, we do not
have jurisdiction over this appeal under the CDA.
We next address whether we have jurisdiction of this appeal under the ASBCA
Charter. In addition to recognizing our CDAjurisdiction, our Charter confers
jurisdiction upon the Board under the following circumstances:
(b) [P]ursuant to the provisions of contracts requiring the
decision by the Secretary of Defense or by a Secretary of a
Military Department or their duly authorized
representative, or (c) pursuant to the provisions of any
directive whereby the Secretary of Defense or the
Secretary of a Military Department or their authorized
representative has granted a right of appeal not contained
in the contract on any matter consistent with the contract
appeals procedure.
48 C.F.R., chapter 2, appx. A, part 1 (14 May 2007).
This MOA contains no provision requiring a decision of the Secretary of
Defense, the Secretary of a military department or any representative on any disputed
matters under the MOA, nor has appellant shown any DoD directive from any such
person granting appellant any rights of appeal. Accordingly, we do not have
jurisdiction of this appeal under the ASBCA Charter.
4
Based upon the foregoing, we do not have jurisdiction of this appeal. That a
CO advised appellant (erroneously) of appeal rights to our Board cannot confer
jurisdiction where none exists. Latifi Shagiwall Construction Company, ASBCA
No. 58872, 15-1BCA~35,937 at 175,634.
CONCLUSION
The government's motion to dismiss for lack of jurisdiction is granted. The
appeal is dismissed for lack of jurisdiction.*
Dated: 20 August 2015
Administrative Judge
----
Armed Services Board
of Contract Appeals
I concur I concur
//2~/~
MARK N. STEMPLER RICHARD SHACKLEFORD
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
* Given our disposition, we need not decide whether this MOA was awarded under the
Commanders' Emergency Response Program.
5
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. 59822, Appeal of Big Iraqi
Company, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
6