Excel Link Construction Company ( 2016 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Excel Link Construction Company ) ASBCA No. 60419
)
Under Contract No. 000000-00-0-0000 )
APPEARANCE FOR THE APPELLANT: Mr. Jaweed Jan
Chairman
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
CPT Harry M. Parent III, JA
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE WOODROW
ON THE GOVERNMENT'S MOTION TO DISMISS
Excel Link Construction Company (appellant) filed a notice of appeal on 15 January
2016, appealing its designation as "Not Eligible for installation Access" in the Joint
Contingency Contracting System (JCCS). The JCCS is an internet-based application used by
Expeditionary Contracting Command - Afghanistan for posting solicitations and proposals.
The JCCS is part of a vendor vetting program for contractors seeking to do business with the
U.S. Government in Afghanistan. The purpose of the vetting program is to "help identify and
prevent insurgents, terrorists, militias, foreign intelligence and security services (FISS) and
criminals from gaining access to U.S. and Coalition equipment, facilities, and personnel and
using contracting proceeds to fund their operations." Afghan Premier Logistics, B-409971,
2014 CPD iJ 293 (Comp. Gen. Sept. 26, 2014).
Mr. Jaweed Jan, appellant's chairman, seeks to have appellant registered in the
JCCS in order to access installations in Afghanistan administered by U.S. Forces in
Afghanistan. Appellant's notice of appeal provides no reference to either a solicitation or
contract between appellant and the government.
I
On 5 February 2016, the government filed a motion to dismiss for lack of
jurisdiction and stay of proceedings. Appellant responded by email on 17 April 2016 and
the government elected to not file a reply brief. The government seeks dismissal on the
I
grounds that the appeal does not involve a procurement contract subject to the Contract
Disputes Act (CDA) and because appellant failed to submit a claim to the contracting
officer. We hold that the Board lacks jurisdiction to entertain appellant's appeal of its
f
denial of installation access on the grounds that appellant has failed demonstrate the
Il
existence of a contract within the Board's jurisdiction.
DISCUSSION
I
The fundamental basis for the Board's jurisdiction under the CDA is the
contractor's submission of a proper claim to the contracting officer for a final decision.
41 U.S.C. § 7103(a); CCIE & Co., ASBCA Nos. 58355, 59008, 14-1BCAii35,700 at
174,816. Because the CDA does not define the term "claim," we look to the definition in
the FAR. See, e.g., Taj Al Safa Co., ASBCA No. 58349, 13 BCA ii 35,278 at 173,156.
The FAR defines a "Claim," in relevant part, as follows:
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.
I
FAR 2.101. We determine whether a contractor's communication is a CDA claim on a
case-by-case basis and apply a common sense analysis. Todd Pac. Shipyards Corp.,
ASBCA No. 55126, 06-2 BCA ii 33,421at165,687. In determining whether a claim has
been submitted, we may examine the totality of the correspondence between the parties.
Vibration and Sound Solutions Ltd., ASBCA No. 56240, 09-2 BCA ii 34,257 at 169,270.
In this appeal, appellant does not allege that it has submitted a claim to the
contracting officer prior to filing this appeal. Although appellant repeatedly
communicated with personnel within the Joint Expeditionary Contracting
Command-Afghanistan regarding appellant's registration with the JCCS, these
communications fall well short of being a claim. In particular, none of appellant's email
communications with government personnel seek the payment of money, nor do they
request any relief "arising under or relating to [a] contract" (notice of appeal at 2-3).
Indeed, appellant does not allege that there was an express contract, either oral or written,
between it and the government. Appellant admits that it is a new company and that it
does not yet have any projects (notice of appeal at 1). Although appellant's email
correspondence with the government indicates that it sought to have the company
registered with the JCCS, and that the government responded with a request for
additional information from the company, there is no mention of any agreement, contract,
solicitation, or proposal. Therefore, the Board lacks jurisdiction to entertain the appeal.
The Board also lacks jurisdiction to entertain the appeal because our jurisdiction is
limited to disputes under contracts. See 41 U.S.C. § 7105(e)(l)(A). We can provide relief
to appellants only in appeals in which the government has an express or implied contract
2
t
f
I
between the government and the appellant. See S. Harman & Associates, Inc., ASBCA
No. 60214, 16-1 BCA ii 36,225 at 176,878. In this appeal, appellant admits that it has no
projects with the government and does not allege that there was an express contract, either
oral or written, between it and the government (notice of appeal at 1). Nor does appellant
present any evidence of an implied-in-fact contract. An implied-in-fact contract has all of
the same requirements as an express contract except that its terms are proved by the
parties' behavior, rather than by an explicit agreement. See City of El Centro v. United
States, 922 F .2d 816, 820 (Fed. Cir. 1990). These requirements include "lack of
ambiguity in offer and acceptance" and that the government representative whose conduct
is relied upon has "actual authority to bind the government." E.g., City of El Centro, 922
F.2d at 820. Appellant's email correspondence with the government makes no mention of
any oral agreement, contract, solicitation, or proposal.
Moreover, there can be no contract based on an implied agreement to provide base
access to appellant or security clearances for appellant's personnel. The few cases we
have found that address a contractor's eligibility under the JCCS are bid protests, which
are not within the Board's jurisdiction. See, e.g., Sohail Global Group, B-413132, 2016
CPD ii 215 (Comp. Gen. Aug. 9, 2016) (rejecting proposal due to denfal of installation
access in the JCCS); Afghan Premier Logistics, 2014 CPD ii 293 (rejecting proposal due
to contractor's JCCS rating). The Board does not possess jurisdiction to entertain bid
protests, which involve the alleged violation of a procurement law or regulation in
connection with a solicitation for goods or services or the award of a contract. 1 Statistica,
Inc., ASBCA No. 44116, 92-3 BCA ii 25,095 at 125,126-27 (citing Coastal Corp. v.
United States, 713 F.2d 728 (Fed. Cir. 1983)). In any event, these circumstances are not
present here, because appellant does not identify a particular solicitation, procurement, or
contract, nor does the appellant allege a violation of a procurement law or regulation.
Finally, installation access decisions are military command decisions. It is well
established that the commanding officer of a military base has wide discretion as to
whom he or she can exclude from the base. Cafeteria & Restaurant Workers Union,
Local 473 v. McElroy, 367 U.S. 886, 893 (1961); see also Connor Bros. Constr. Co.,
ASBCA No. 54109, 07-2 BCA ii 33,703, aff'd, 550 F.3d 1368 (Fed. Cir. 2008) (holding
that denial of installation access to contractor was a sovereign act); Nero and Associates,
Inc., ASBCA No. 30369, 86-1BCAii18,579 at 93,296 (recognizing that installation
access orders are sovereign acts). Therefore, even if we possessed jurisdiction to
entertain appellant's challenge to the government's decision, the government likely
1
Generally speaking, if a party interested in a government contract believes that an
agency has violated procurement law or regulation in a solicitation for goods or
services, or in the award of a contract, it may file a bid protest with the
Government Accountability Office pursuant to 31 U.S.C. §§ 3551-3556, or in the
United States Court of Federal Claims, pursuant to 28 U.S.C. § 1491(b)(l) (2006).
3
would contend that the denial of installation access was a sovereign act and that the
government cannot be held liable for any damages sustained by the appellant. 2
For these reasons, we hold that the Board lacks jurisdiction to entertain the appeal.
Dated: 7 November 2016
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
/?~ / ' /~:-k. ---·
..../·///~ - "
/ . '( /// t:``
/ ~·· /
/MARK N. STE
6
z.c//L.
LER I
/ ,eL,,ff''
7
'v$)
t RICHARD SHACKLEFORD
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
I
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. 60419, Appeal of Excel Link
Construction Company, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
2
Under the sovereign acts doctrine, the United States, when sued as contractor, cannot
be held liable for obstruction to performance of a particular contract resulting from
its public and general acts as sovereign. Zafer Taahhut Insaat ve Ticaret A.S. v.
United States, 833 F.3d 1356 (Fed. Cir. 2016).
4