Heirs of Khair Mohammad ( 2019 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Heirs of Khair Mohammad ) ASBCA No. 61571
)
Under Contract No. DACA-AED-5-09-9650 et al. )
APPEARANCE FOR THE APPELLANT: Mr. Haji Awal Khan
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
Matthew S. Tilghman, Esq.
Aimee L. Rider, Esq.
U.S. Army Engineer District,
Middle East
Winchester, VA
OPINION BY ADMINISTRATIVE JUDGE SWEET
ON THE GOVERNMENT'S MOTION TO RECONSIDER DECISION
ON REPRESENTATION
This appeal involves several leases of real property in Afghanistan. The
government has moved to reconsider our acceptance of the individual purporting to be
Haji Awal Khan 1 as a proper representative under Board Rule 15(a). Despite the fact that
seven months have passed since the government filed the motion, Mr. Khan has not
responded to the government's motion. For the reasons discussed below, the motion is
granted, and this appeal is dismissed.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
I. The Leases
1. On April 23, 2009, the government entered into Lease No. DACA-AED-5-09-9650
(9650 lease) to lease real property in Afghanistan. The 9650 lease identified the lessors as
the "Heirs of KHAIR MOHAMMAD as represented by HAJI AW AL KHAN son of
HAJI MOHAMMAD KHAN." (R4, tab 5 at 25) Haji Awal Khan executed the lease with
his fingerprint, as the representative of the heirs of Khair Mohammad (id. at 30).
2. On April 23, 2009, the government entered into Lease No. DACA-AED-5-09-9651
(9651 lease) to lease real property in Afghanistan. The 9651 lease identified the lessors as
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In this Opinion, we refer to the individual at the email address from which we received
the May 22, 2018 email as Haji Awal Khan, or Mr. Khan.
the "Heirs of MEHRULLAH son of HAZRAT NOOR as represented by HAJI AW AL KHAN
son ofHAJI MOHAMMAD KHAN." (R4, tab 5 at 31) Haji Awai Khan executed the lease
with his fingerprint, as the representative of the heirs of Mehrullah (id. at 36).
3. On April 23, 2009, the government entered into Lease No. DACA-AED-5-09-9652
(9652 lease) to lease real property in Afghanistan. The 9652 lease identified the lessors as the
"Heirs of SULT AN son of MURAD KHAN as represented by HAJI AWAL KHAN son of
HAJI MOHAMMAD KHAN." (R4, tab 5 at 37) Haji Awai Khan executed the lease with his
fingerprint, as the representative of the heirs of Sultan (id. at 42).
4. On April 23, 2009, the government entered into Lease No. DACA-AED-5-09-9653
(9653 lease) to lease real property in Afghanistan. The 9653 lease identified the lessors as
the "Heirs of GHULAAM MOHAMMAD son of AQHA MOHAMMAD as represented
by HAJJ AWAL KHAN son ofHAJI MOHAMMAD KHAN." (R4, tab 5 at43)
Haji Awai Khan executed the lease with his fingerprint, as the representative of the heirs of
Ghulaam Mohammad (id. at 48).
5. On April 23, 2009, the government entered into Lease No. DACA-AED-5-09-9654
(9654 lease) to lease real property in Afghanistan. The 9654 lease identified the lessors as
the "Heirs of ALLAH MOHAMMAD as represented by HAJI AWAL KHAN son of
HAJI MOHAMMAD KHAN." (R4, tab 5 at 49) Haji Awai Khan executed the lease with
his fingerprint, as the representative of the heirs of Allah Mohammad (id. at 54 ).
6. On April 23, 2009, the government entered into Lease No. DACA-AED-5-09-9655
(9655 lease) to lease real property in Afghanistan. The 9655 lease identified the lessors as
the "Heirs of GHAFOOR son of LAAL MOHAMMAD as represented by HAJI AW AL
KHAN son ofHAJI MOHAMMAD KHAN." (R4, tab 5 at 55) Haji Awai Khan executed
the lease with his fingerprint, as the representative of the heirs of Ghafoor (id. at 60).
7. On April 23, 2009, the government entered into Lease No. DACA-AED-5-09-9656
(9656 lease) to lease real property in Afghanistan. The 9656 lease identified the lessors as
the "Heirs of SHAHABADDIN as represented by HAJJ AW AL KHAN son of HAJI
MOHAMMAD KHAN." (R4, tab 5 at 61) Haji Awai Khan executed the lease with his
fingerprint, as the representative of the heirs of Shahabaddin (id. at 66).
8. On April 13, 2009, the government entered into Lease No. DACA-AED-5-09-9657
(9657 lease) to lease real property in Afghanistan. The 9657 lease identified the lessors as
the "Heirs of MOH[A]MMAD GUL SON OF AMIR JAN as represented by SHIRZADA
son of MOHAMMAD AZIM." (R4, tab 5 at 67) Mr. Shirzada executed the lease with his
fingerprint, as the representative of the heirs of Moh[a]mmad Gui (id. at 72).
9. On April 13, 2009, the government entered into Lease No. DACA-AED-5-09-9658
(9658 lease) to lease real property in Afghanistan. The 9658 lease identified the lessors as
the "Heirs of AHMAD JAN son of AMIR MOHAMMAD as represented by SHIRZADA
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son of MOHAMMAD AZIM." (R4, tab 5 at 73) Mr. Shirzada executed the lease with his
fingerprint, as the representative of the heirs of Ahmad Jan (id. at 78).
10. On April 13, 2009, the government entered into Lease No. DACA-AED-5-09-9659
(9659 lease) to lease real property in Afghanistan. The 9659 lease identified the lessors
as the "Heirs of JABAR AND HUSSIAN as represented by SHIRZADA son of
MOHAMMAD AZIM." (R4, tab 5 at 79) Mr. Shirzada executed the lease with his
fingerprint, as the representative of the heirs of Jabar and Hussian (id. at 84 ).
11. On April 13, 2009, the government entered into Lease No. DACA-AED-5-09-9660
(9660 lease) to lease real property in Afghanistan. The 9660 lease identified the lessors as
the "Heirs of MOHAMMAD AND GUL RANG as represented by SHIRZADA son of
MOHAMMAD AZIM." (R4, tab 5 at 85) Mr. Shirzada executed the lease with his·
fingerprint, as the representative of the heirs of Mohammad and Gui Rang (id. at 90).
12. On April 13, 2009, the government entered into Lease No. DACA-AED-5-09-9661
(9661 lease) to lease real property in Afghanistan. The 9661 lease identified the lessors as
the "Heirs of TARABAZ son of MIR HAIDER as represented by SHIRZADA son of
MOHAMMAD AZIM." (R4, tab 5 at 91) Mr. Shirzada executed the lease with his
fingerprint, as the representative of the heirs of Tarabaz (id. at 96).
13. On April 13, 2009, the government entered into Lease No. DACA-AED-5-09-9662
(9662 lease) to lease real property in Afghanistan. The 9662 lease identified the lessors as
the "Heirs of AMIR KHAN son of SAHIB as represented by SHIRZADA son of
MOHAMMAD AZIM." (R4, tab 5 at 97) Mr. Shirzada executed the lease with his
fingerprint, as the representative of the heirs of Amir Khan (id. at 102).
14. On April 13, 2009, the government entered into Lease No. DACA-AED-5-09-9663
(9663 lease) to lease real property in Afghanistan. The 9663 lease identified the lessors as
the "Heirs of MOHAMMAD KHAN son of SHAIBNOOR as represented by SHIRZADA
son of MOHAMMAD AZIM." (R4, tab 5 at 103) Mr. Shirzada executed the lease with his
fingerprint, as the representative of the heirs of Mohammad Khan (id. at 108). 2
15. There is no evidence that the heirs constitute a corporation, partnership, or
joint venture, or that Mr. Khan is an officer or member of any such corporation,
partnership, or joint venture.
16. There is no evidence that Mr. Khan is a duly licensed attorney.
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We refer to the 9650 through 9662 leases collectively as the leases. We refer to the
heirs of Khair Mohammad, Mehrullah, Sultan, Ghulaam Mohammad, Allah
Mohammad, Ghafoor, Shahabaddin, Moh[a]mmad Gui, Ahmad Jan, Jabar and
Hussian, Mohammad Gui Rang, Tarabaz, Amir Khan, and Mohammad Khan
collectively as the heirs.
,.,
.)
II. Procedural Histoty
17. On April 1, 2018, the Board received a notice of appeal from Dr. Jamal Sadat
regarding the leases. On April 27, 2018, we received a complaint and a revised complaint
alleging that the government failed to pay rent on the leases. The emails transmitting the
complaint and the revised complaint were from Dr. Sadat's email address, but purportedly
came from Mr. Khan and Mr. Shirzada.
18. On May 2, 2018, we sent a correspondence to Dr. Sadat indicating that we
would not accept the complaint or the revised complaint for filing until he showed that
he was the proper representative under Board Rule 15(a). Dr. Sadat responded on
May 19, 2018, that we would receive a message from Mr. Khan. On May 22, 2018,
we received an email purporting to be from Mr. Khan. Mr. Khan indicated that he was
the representative in this appeal, and that he wanted to follow the appeal. By order
dated May 24, 2018, we accepted Mr. Khan as appellants' representative, and stated
that we would accept the complaint for filing, unless appellants objected within seven
days. Appellants did not object within seven days.
19. However, on May 29, 2018, the government filed a motion to reconsider
our acceptance of Mr. Khan as the representative.
20. To date, Mr. Khan has not responded to the motion.
DECISION
Mr. Khan is not a proper representative of the appellants. The Contract Disputes Act
(CDA)-which establishes our jurisdiction-only applies to claims brought by a
"contractor." 41 U.S.C. § 7103(a)(l). The CDA defines a contractor as "a party to a
Federal Government contract other than the Federal Government.'' Id. § 7101(7). In order
to proceed before the Board, a contractor must have a proper representative. Acsential
Tech., Inc., ASBCA No. 61559, 18-1 BCA ,r 37,056 at 180,395. Under our rules:
An individual appellant may represent his or her interests
before the Board; a corporation may be represented by one
of its officers; and a partnership or joint venture by one of
its members; or any of these by an attorney duly licensed in
any state, commonwealth, territory, the District of
Columbia, or in a foreign country.
Board Rule 15(a). Because we cannot proceed without a representative meeting Board
Rule 15(a)'s requirements, we dismiss appeals that lack a proper representative.
Acsential, 18-1 BCA ,r 37,056 at 180,395.
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Here, the contractors-or parties to the leases-were the heirs (SOF `` 1-14).
The fact that Mr. Khan executed some of the leases as a representative of some of the
heirs does not establish that he is a party to the leases, or entitle him to file this appeal.
Thai Hai, ASBCA No. 53375, 02-2 BCA ~ 31,971 at 157,921 (holding that the claim of
an agent who executed a lease on behalf of a principal "'founders because [the agent]
was not the named contractor on the lease documents''). Thus, the heirs-and not
Mr. Khan-are the contractors.
Nor is Mr. Khan a proper representative of the contractor heirs under Board
Rule 15(a). This case involves multiple appellants (SOF `` 1-14). However, there is no
evidence that the heirs constitute a corporation, partnership, or joint venture, or that
Mr. Khan is an officer or member of any such corporation, partnership, or joint
venture (SOF ~ 15). Nor is there any evidence that Mr. Khan is a duly licensed attorney
(SOF ~ 16). Therefore, Mr. Khan is not an appropriate representative of the heirs under
Board Rule 15(a). As a result, we must dismiss this appeal.
CONCLUSION
For the reasons discussed above, the motion for reconsideration is granted. This
appeal is dismissed.
Dated: February 6, 2019
JAMES R. SWEET
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
RICHARD SHACKLEFORD
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. 61571, Appeal of Heirs of
Khair Mohammad, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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