Pamir Construction & Logistic Co. ( 2016 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Pamir Construction & Logistic Co. ) ASBCA No. 60673
)
Under Contract No. W91B4M-09-C-7256 )
APPEARANCE FOR THE APPELLANT: Mr. Fazil Rahimi
General Director
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
CPT Sarah E. Park, JA
MAJ Christopher C. Cross, JA
Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE O'CONNELL ON THE
GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION
The government moves to dismiss this appeal for lack of jurisdiction,
contending that appellant failed to submit a claim pursuant to the Contract Disputes
Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. We grant the government's motion.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. On 10 August 2009, the Department of the Army (Army or government)
awarded Contract No. W91B4M-09-C-7256 to appellant, Pamir Construction &
Logistic Co. (PCLC) 1 (R4, tab 1). The contract required PCLC to provide labor and
materials to perform various construction work, including the construction of four
"3-0NEX" guard towers and addition of crushed rock, for improvements to a police
station in Afghanistan (supp. R4, tab 9 at 5 of 7). PCLC was required to complete all
construction within 90 days of receipt of the notice to proceed (R4, tab 1 at 6), which
the contracting officer issued effective 22 October 2009. Thus, PCLC was to complete
work by 20 January 2010 (R4, tab 2).
2. The record contains a number of emails between appellant and the
government from October 2009 to May 2011 but there is no request for payment from
PCLC to the government during this period (R4, tab 3; Bd. corr., app. 28 October 2016
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The appeal caption has been modified to reflect the name of the contractor in the
contract.
email, attachs., "Gmail - RE_Meeting W9 l B4M-09-C 7256, Seyad Kheil Police
Station," "Gmail - RE:_Sayd Kheil Police Station W91B4M-09-C-2-7256").
3. On 6 November 2013, a contract specialist emailed PCLC for the purpose of
closing out the contract. In emails dated 10 November and 13 November 2013, PCLC
responded that it had purchased materials, but, because no contracting officer's
representative had been assigned to the project, it had not started work and did "not
have any Invoice or DD250 form." (R4, tab 4)
4. In an email to the contract specialist dated 25 November 2013, PCLC
attached what it characterized as an invoice from a supplier of the alleged materials
purchased for the construction of the guard towers. Although the invoice contains
amounts in U.S. dollars ($41,200 and $10,300), it is otherwise not in English and these
amounts do not match the amounts in the documents appellant submitted to the Board
on 28 October 2016. (R4, tab 5; see SOF ~ 7)
5. On 17 December 2013, the contracting officer issued Modification
No. P00002 to the contract, de-obligating excess funds from the contract and stating
that performance never started because no contracting officer's representative had
been on site (R4, tab 7).
6. On 10 July 2016, PCLC filed its notice of appeal to the Board, seeking
payment for the "materials and other cost" allegedly incurred in performance of the
contract.
7. PCLC's submissions to the Board in response to the government's motion to
dismiss contain an undated document in which it states "we want to appeal for the
materials and other cost" and then lists $40,800 for the guard towers, $14,700 for
gravel, and $15,500 for rebar, and includes what may be support documentation for the
costs (albeit mostly not in English) (app. 28 October 2016 email, attachs., "Official
letter.pdf; Connexs Bill.pdf; Gravel Bill.pdf'; "Rebar and Cement Bill.pdf;
SCAN2346_000.pdf'). While PCLC appears to have corresponded with the
government by email, there is no evidence that it submitted these documents to the
government by email or any other method prior to the filing of this appeal.
DECISION
The government contends that the Board lacks jurisdiction over this appeal
because PCLC did not submit a claim to the contracting officer prior to filing this
appeal. PCLC filed two responses to the government's motion but close examination
indicated that PCLC's responses pertained to a different appeal pending before the
Board. The Board provided PCLC another opportunity to respond to the government's
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motion (see Bd. corr., order 609 F.3d 1323, 1328
(Fed. Cir. 2010).
As the proponent of our jurisdiction, PCLC has the burden to establish
jurisdiction by a preponderance of the evidence. CC/£ & Co., 14-1BCA~35,700
at 174,816. Based on our examination ofthe record and PCLC's submissions, PCLC
has not met its burden. The record fails to demonstrate that PCLC submitted a claim
meeting the requirements of FAR 2.101. Even if we were to assume that PCLC
submitted an invoice to the contract specialist on 25 November 2013 seeking payment
for the guard towers, the invoice itself is not a claim and there is no evidence in the
record that PCLC converted this invoice to a claim. PCLC also has not established
that it ever submitted to the contracting officer the documents attached to its
28 October 2016 submission, or that it converted these documents to a claim. Because
PCLC has failed to establish that it submitted a claim to a contracting officer before
filing this appeal, we lack jurisdiction.
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CONCLUSION
The government's motion is granted. The appeal is dismissed without prejudice
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to the contractor's submission of a claim in a sum certain to a contracting officer.
Dated: 5 December 2016
/}11~1)1 {/C~
MICHAEL N. O'CONNELL
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
MARK N. STEMPLEfl /
--tV\
RICHARD SHACKLEFORD
Administrative Judge 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 pecision of the
Armed Services Board of Contract Appeals in ASBCA No. 60673, Appeal of Pamir
Construction & Logistic Co., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
2 If PCLC wishes to file a claim with the contracting officer, it shall so advise
government counsel and counsel shall provide PCLC with the name and
address of the cognizant contracting officer.
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