Tawhid Afzali Construction Company ( 2018 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Tawhid Afzali Construction Company ) ASBCA No. 61198)
Under Contract No. H92237-13-C-5002 )
APPEARANCE FOR THE APPELLANT: Mr. Mohammad Nazir
General Director
APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq.
Air Force Deputy Chief Trial Attorney
Lt Col Nathaniel H. Sears, USAF
Phillip E. Reiman, Esq.
Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE PAUL
Appellant Tawhid Afzali Construction Company (TACC) filed a purported
claim, without stating an amount claimed, to the contracting officer (CO) with respect
to a construction contract which was awarded to another entity in Afghanistan. The
CO denied the "claim" on the basis that it did not appear that TACC was awarded the
contract and, accordingly, "is owed no money under the contract." The Air Force
subsequently filed a motion to dismiss for lack of jurisdiction, contending that
"nowhere does [TACC] state the amount of its claim" (gov't mot. at 1 of2).
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. On 31 October 2012, GySgt Shane Oltman, CO USMC, awarded Contract
No. H92237-13-C-5002, on behalf of the Combined Joint Special Operations Task
Force -Afghanistan (CJSOTF-A) to Najibullah Rahmal (NR) in a total amount of
$94,240 (R4, tabs 1-3). The contract's "STATEMENT OF WORK" stated:
"1.1 SCOPE OF WORK. The contractor shall provide all personnel and supervision
necessary to perform general labor services for the staging base at Fob [Forward
Operating Base] Robinson, Helmand, Afghanistan." (R4, tab 21 at 1)
2. The performance period for contract line item numbers (CLINs) 0001-0009
was 5 November 2012 through 4 November 2013; for CLINs 1001-1009 was
5 November 2013 through 4 November 2014 (R4, tab 3 at 6of16).
3. On 18 July 2015, a Mr. Muhmmad Nazeer, styling himself as General
Director of TACC, forwarded an email to Capt Brandon A. Sandoval, an Air Force CO
in which he referenced Contract No. H92237-13-C-5002 and stated, "[a]ny one down
in Bagram [AFB], [c]ould you please help us out with our payment? It has been years
and we haven't get [sic] paid? What's going on? Thanks." (R4, tab 4)
4. On 20 July 2015, Mr. Nazeer sent another email to the CO in which he
wrote:
We'd a project back in 2012, with signed contract from
Bagram Air Field, Camp Robinson in Fahrah province,
which is extremely unsafe and dangerous. We've hired
and contracted the personnel [required] for this project,
rented the house for them near the base, but the COR has
told them to wait for some time and we haven't heard back
since then.
Please see attached signed contract.
(R4, tab 5 at 1 of 33) Mr. Nazeer enclosed a purported copy ofH92237-13-C-5002
which he allegedly signed and which was dated 30 October 2012. The instrument
stated a face amount of $72,400. (R4, tab 5 at 3 of 33)
5. The information on the face of the purported contract flatly contradicted the
"Award Determination" executed by the original CO, GySgt Shane Oltman, on
29 October 2012. There, the CO stated, "[i]t is determined that Najibullah Rahmal in
the amount of $94,240.00 is most advantageous to the Government." On this basis,
the CO awarded Contract No. H92237-13-C-5002 to Najibullah Rahmal. (R4, tab 1)
6. Capt Sandoval responded to TACC's "claim" as follows: "You need to send
the specifics regarding your claim. What invoices have you not been paid for? You
will also need to supply all supporting documentation regarding the payment or lack
thereof. If you have any questions, please address them to me." In addition to the
purported contract, TACC provided to Capt Sandoval what appears to be a quotation
in a total amount of $72,400. (R4, tab 5 at 1 of 33)
7. On 23 July 2015, TACC forwarded to Capt Sandoval an email allegedly
from GySgt Oltman to T ACC which stated:
Tawhid Afzali Construction,
Good evening. Please review the attached contract
and sign page 1. Return a signed copy to this email
address as soon as possible. Contract services are to begin
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on 5 November 2012. Please coordinate with lstSgt Jazak
(COR) that is Cc'ed on this email. Thanks.
(R4, tab 6 at 1)
8. On 24 July 2015, Capt Sandoval wrote to TACC as follows: "I've looked
through the contract file and have no record of this contract ever being awarded to
your company. The entire file reflects a separate company." (R4, tab 7 at 1) Also on
24 July 2015, Capt Sandoval forwarded the following email to TACC:
Please provide the following documentation:
1) Did you ever submit an invoice for payment?
2) Who'd you send the invoice to?
3) Who was the COR you were in contact with?
4) Send me the e-mail where you were told to stop
work.
5) Provide the solicitation you responded to, along
with the proposal.
(R4, tab 10 at 1 of 7) T ACC responded in these terms:
1) No, we've not submitted any invoice since we'd [sic] a
year long contract and we were told to halt the work
temporarily for unknown reasons.
2) Ifwe were to submit an invoice, we'd have sent it
Gysgt Shane D. Oltman CJSOTF-A Contracting Officer.
3) I've already forwarded the email and point of contact
for the COR.
4) Our supervisor who were [sic] responsible to
communicate with the COR, were told to stop the work.
The reason was, COR was communicating more often
direct and per cellphone with our supervisor, not
necessarily with us.
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5) I've forward[ ed] you the email already which the officer
has asked for a Quote and also mentioning the COR point
of contact, provided by the contracting officer. So, we've
only responded with the attached Quotation that must be
similar with the one you'd have in your database
otherwise, we're the culprit.
(Id.)
9. Once again on 24 July 2015, Capt Sandoval forwarded the following email
to TACC: "I've reviewed the docs you sent me and they do not match the contract
file. Did your company perform any work on the contract?" TACC replied that day as
follows:
We've worked for a about [sic] a month and then told to
stop for a second notice, and we've not heard of them since
then. Sir, if this contract is fabricated, then we're criminal
if not, there is something wrong with it. I don't think, that
anyone in Afghanistan could fabricate a digitally signed
paper with at most of security. We're concerned sir!
(R4, tab 10 at 2 of7) On 28 July 2015, TACC provided a further response. It wrote:
Did you check out the contract? It's absurd to say that this
contract [does] not exist...It's quite funny. We write you
again, please if you can't help, give us a contact for
Bagram or other office to solve any problem.
(R4, tab 13)
l 0. On 1 August 2015, Mr. Dan Min, a special investigator with the Special
Inspector General for Afghanistan Reconstruction (SIGAR) forwarded the following
email to TACC:
You have been contacting Capt Sandoval regarding
payment on contract number
H92237-13-C-5002 "Camp Robinson Labor"
I want you to come to Bagram Airfield with the following:
1) All papers showing why you were the contractor
and proof that you won this contract including your
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solicitations for this contract, letters showing that you won
this contract, etc.
2) All papers showing that you did the work, receipts,
documents, emails, and all documents showing why you
were not paid on this contract
3) Your taskira and taskira of anyone accompanying
you
4) Your AISA license for Tawhid Afzali Construction
Co.
5) Your JCCS Cage Code and your confirmation of
this code.
Email me back and I will set up an appointment for you to
come to Bagram Airfield.
Send me your Taskira's first, so I can grant you access to
Bagram Airfield. You will be coming to ECP 1.
Thank you and I look forward to hearing from you
(R4, tab 14 at 8 of 17) 1
11. On 2 August 2015, TACC responded to Mr. Min as follows:
Please answer below questions[:]
1 - Did you verify the signature of your [previous] officer?
2 - We have the email from the officer, has awarded the
contract.
3 - We have send [sic] you all the information we had and
even suggested to give you our email password?
4 - Why you want us in Bagram?
You're powerful but not right, we know that we can not do
anything if you do not pay us or anything, but we have
never did anything wrong. Please check our past
performance.
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The word "taskira" and the various acronyms set forth in this email are not identified
in the record.
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If you are this illogical, then we will not be contacting you
anymore, but not sign anything, just we might get justices
one day.
(R4, tab 16 at 3 of 5)
12. On 3 August 2015, Capt Sandoval forwarded this email to a
Mr. Gregory Martin at USSOCOM (U.S. Southern Command) Headquarters:
I have received a claim from a vendor (TA WHID
AFZALI) demanding payment for a contract he was not
awarded. The contract file includes an award
determination, contract, and modifications for a different
company. TA WHID AFZALI has only been able to
provide a contract and NTP ... nothing else (These docs are
not in our file). There is also no history in the contract file
that he even bid on this project. I contacted SIGAR who
conducted an investigation. The company became very
irate with SIGAR and refused to identify themselves or
cooperate. SIGAR found TA WHID AFZALI on JCCS and
contacted the company POC. They have no idea who
within their company would be making these claims.
SIGAR called me this morning and recommended I close
this issue out as they believe the person contacting us is an
impersonator.
How would you like me to close this out? Would I still be
required to submit a KO determination? This vendor has
been extremely uncooperative and verbally berating to
myself and SI GAR. They haven't been able to even
submit an invoice or identify an amount that they believe
they are owed.
(R4, tab 15 at 1 of2)
13. On 10 May 2017, Capt Sandoval issued a final decision in which he wrote,
in part:
1. This letter is in response to your company's submitted
claim, sent 18 July 2015. This claim is for unpaid work for
contract H92237-13-C-5002.
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2. I have reviewed the documents for this solicitation,
documents provided by you, email traffic between your
company and the Contracting Officer Brandon A. Sandoval,
and Special Agent Kyushik "Danny" Min for contract
H92237-13-C-5002, in consideration ofthe claim you
submitted. In addition to your request, the following facts
were considered:
1) On 18 July 2015, SOJTF-A Contracting received an
e-mail from the email address
towheed.company@gmail.com. The sender of this
email purported to be Muhmmad Nazeer, General
Director of Tawhid Afzali Construction Company
(hereinafter referred to as "the Claimant").
(Attachment A). The email alleged that the
Claimant had not been paid for work performed
under contract H92237-13-C-5002.
2) The Contracting Officer requested that the Claimant
provide documents validating its claim. In
response, the Claimant provided a contract, a quote,
and an NTP. The Claimant also stated that it would
"look for every piece of information that could help,
but it is definitely possible that it totally won't
exist." The Claimant stated that after they started
work they were told to stop. However, no proof
was provided that a stop work order was issued, nor
is one documented in the contract file. The JCCS
code and AISA license number listed in the
signature block in the referenced emails do not exist
in JCCS.
3) A review of the contract file was conducted.
H92237-13-Q-5002 was the solicitation issued. The
file contains two quotes which were submitted for
this project. The award determination, dated
29 October 2012, states Najibullah Rahmal as the
winner of this contract action. The contract in the
file also has Najibullah Rahmal as the contractor.
There are two modifications within the file which
also list Najibullah as the contractor. There is no
documentation or anything relating to Tawhid
Afzali Construction Company.
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4) To assist with this investigation, U.S. Army
Criminal Investigation Command (CID) was
contacted. CID initially contacted the Claimant on
1 August 2015. The Claimant refused to cooperate
or provide additional information. The Claimant
told CID to stop e-mailing him.
5) CID was eventually able to find a company called
Tawhid Afzaly Construction in Afghanistan. CID
made contact with the company and was told that
Tawhid Afzaly Construction had no idea who would
be contracting the Government on its behalf and
that they are unaware of this contract.
3. The Contracting Officer denies this claim based on the
information above. It does not appear that the Claimant
was awarded contract H92237-13-Q-5002 and as such, is
owed no money under the contract.
(R4, tab 18 at 1-2of3) As stated by the CO in his letter to Mr. Martin on 3 August
2015, at no time did TACC state a claim in a sum certain (R4, tab 15 at 1 of2).
Accordingly, we find that TACC failed to submit a proper claim to the CO. This
appeal followed.
DECISION
Section 7103(a)(l) of the Contract Disputes Act (CDA), 41 U.S.C.
§§ 7101-7109, states generally: "[E]ach claim by a contractor against the Federal
Government relating to a contract shall be submitted to the contracting officer for a
decision." Thus, the CDA clearly requires that a claimant be a "contractor."2 Here,
TACC has not demonstrated that it meets this requirement. Indeed, the most credible
document relating to this dispute is the "Award Determination" by the original CO,
GySgt Shane Oltman. There, the CO determined that Najibullah Rahmal's offer was
"most advantageous to the Government." On this basis, the CO awarded Contract
No. H92237-13-C-5002 to Najibullah Rahmal. (SOF if 1) Hence, the Board cannot
accept TACC's contentions that it was the contractor. Accordingly, we must dismiss
its claim for lack of jurisdiction.
2 The CDA further defines "contractor" as a "party to a Federal Government contract
other than the Federal Government." 41 U.S.C. § 7101(7).
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Even if TACC could somehow prove that it was the contractor, its claim would
fail. It is axiomatic that a necessary element of a cognizable claim is a demand for
payment in a sum certain. Precision Standard, Inc., ASBCA No. 55865, 11-1 BCA
~ 34,669 at 170,787. As the CO stated in correspondence to Mr. Martin of
USSOCOM HQ, TACC, inter alia, did not identify "an amount that they believe they
are owed" (SOF ~ 12). Moreover, we found that TACC failed to submit a proper
claim to the CO (SOF ~ 13). On this basis alone, we must dismiss TACC's "claim"
for lack of jurisdiction.
CONCLUSION
The government's motion to dismiss is granted.
Dated: 9 January 2018
MICHAEL T. PAUL
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
RIC~LEFORD
Administrative Judge
OWEN C. WILSON
Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
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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. 61198, Appeal ofTawhid
Afzali 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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