New Iraq Ahd Company ( 2014 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
New Iraq Ahd Company ) ASBCA Nos. 58763, 59286
)
Under Contract No. M20133-06-M-6065 )
APPEARANCE FOR THE APPELLANT: Mr. Abbas Abed Mohsin
Owner
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
CPT Vera A. Strebel, JA
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE TUNKS ON THE GOVERNMENT'S
MOTION TO DISMISS FOR LACK OF JURISDICTION
New Iraq Ahd Company (NIAC) appeals from the denials of its alleged claims for
payment of the contract amount regarding its contract to supply gravel to the government.
ASBCA No. 58763 concerns NIAC's uncertified claim for $180,800. ASBCA No. 59286concerns NIAC's certified claim for $144,000. The government has moved to dismiss both
appeals for lack of jurisdiction based on the failure to certify (ASBCA No. 58763) and
failure to comply with the Contract Disputes Act (CDA) statute of limitations (both
appeals). 1
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
1. On 31 December 2005, the Joint Contracting Command/Iraq (JCC/I),
PARC-Forces, Contracting Office, Fallujah, Iraq, awarded commercial items Contract
No. M20133-06-M-6065 to NIAC to deliver 1,600 cubic meters of crushed gravel. The
unit price was $113 per cubic meter resulting in a contract price of $180,800. (ASBCA
No. 59286 (59286), R4, tab 1at1-16) Delivery was required within ten days after
"ADC" (after date of contract).
2. The JCC/I terminated the contract for cause on 24 February 2006 for failure to
deliver (59286, R4, tab 2). 2
1
The government's motion of 9 June 2014 to consolidate the appeals and consider its
motion as applicable to both appeals was granted by Order dated 28 August 2014.
2
No appeal was filed from the Termination for Cause.
3. On 8 December 2012, NIAC submitted a request to the contracting officer
4
(CO) for payment of the contract proceeds 3 (ASBCA No. 58763 (58763), R4, tab 1 at 1).
4. On 8 April 2013 the CO informed NIAC that she was not able to locate any files
on the contract and would not make the requested payment to NIAC (58763, R4, tab 1 at 2).
5. On 6 July 2013, NIAC filed a notice of appeal from the CO's refusal to make
the requested payment. The appeal was docketed as ASBCA No. 58763.
6. On 13 November 2013, the government filed a motion to dismiss ASBCA
No. 58763.
7. NIAC submitted a certified claim to the CO on 16 March 2014, eight years
after the termination seeking $144,000 5 (ASBCA No. 59286, R4, tab 14 at 4, 5).
8. On 24 March 2014, Ms. Christine A. Fricke, the CO, issued a final decision
denying the claim.
9. On 20 April 2014, NIAC appealed that final decision and ASBCA No. 59286was docketed on 5 May 2014.
DECISION
It does not require citation that contractor claims under the CDA and FAR must be
certified pursuant to that statute and regulation. If a claim is uncertified, this Board lacks
jurisdiction because a proper claim has never been filed. NIAC's claim and appeal in
ASBCA No. 58763 suffers from this infirmity and must be dismissed without prejudice
for lack of jurisdiction.
Under the CDA, 41 U.S.C. § 7103(a)(4)(A), a contract claim, whether that of the
contractor or the government, must be "submitted within 6 years after the accrual of the
claim." We do not have jurisdiction over a claim that fails to meet this requirement.
NIAC, as the proponent of our jurisdiction here, bears the burden of proving the facts
sufficient to support our jurisdiction. Raytheon Missile Systems, ASBCA No. 58011,
13 BCA if 35,241.
3
NIAC's complaint in ASBCA No. 58763 explains that it did not deliver any gravel
because of security problems.
4
ASBCA No. 58763, Rule 4, tab 1 is a 13 November 2013 statement by the CO,
addressed to the Board. It is neither an affidavit nor a declaration. We cite to this
document only when it does not appear that the fact being found is in dispute.
5
The difference, according to NIAC's complaint in ASBCA No. 59286 is that $144,000
represents only the cost of the gravel to NIAC.
2
Although the CDA does not define "accrual of a claim," FAR 33.201 defines the
phrase as follows:
Accrual of a claim means the date when all events, that
fix the alleged liability of either the Government or the
contractor and permit assertion of the claim, were known or
should have been known. For liability to be fixed, some
injury must have occurred. However, monetary damages
need not have been incurred.
In order to determine when liability becomes fixed for purposes of claim accrual,
we first examine the legal basis of the claim. Gray Personnel, Inc., ASBCA No. 54652,
06-2 BCA ii 33,378 at 165,475. The legal basis for NIAC's claim is that it has not been
paid the contract proceeds. We know little else regarding the legal theory under which
NIAC claims entitlement. 6 NIAC's claim accrued on the date when all events that fixed
the government's alleged liability and permitted assertion of the claim, were known or
should have been known. In this case, all events that fix the liability of the government
and permit NIAC to assert a claim were known on 24 February 2006, the date on which
the government terminated NIAC for cause. No material events have occurred since that
date. 7 In order for NIA C's claim to be timely under the CDA, it had to have been filed
on or before 24 February 2012. NIAC did not file its certified claim until 16 March
2014, two years after the expiration of the statute of limitations. As a result, we lack
jurisdiction to decide ASBCA No. 59286.
CONCLUSION
The government's motion to dismiss for lack of jurisdiction is granted. The
appeals are dismissed for lack of jurisdiction.
Dated: 22 October 2014
(Signatures continued)
6
As stated earlier, NIAC did not appeal the termination of its contract.
7
Certainly the date when the CO first told NIAC that it would not be paid the contract
proceeds cannot fix the relevant date. Otherwise, NIAC could put off indefinitely
the accrual rate by not requesting the contract proceeds.
3
I concur I concur
/~~
ifuU<~' 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 Decision of the
Armed Services Board of Contract Appeals in ASBCA Nos. 58763, 59286, Appeals of
New Iraq Ahd Company, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
4