Panjshir Kandahur Construction Co. ( 2016 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Panjshir Kandahur Construction Co. ) ASBCA No. 60173)
Under Contract No. W91B4M-09-C-7221 )
APPEARANCE FOR THE APPELLANT: Mr. Ahmad Mir
Vice President
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
CPT Matthew A. Freeman, JA
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE D'ALESSANDRIS
ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION
In this appeal, appellant Panjshir Kandahur Construction Co. (PKCC) seeks
payment under an invoice for services it alleges it provided to the United States
Department of the Army (Army). The Army moves to dismiss for lack of jurisdiction
because PKCC never filed a claim for payment of that invoice with the contracting
officer. For the reasons set forth below, we grant the Army's motion.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. On 20 June 2009 the Army awarded Contract No. W91B4M-09-C-7221
(contract), in the amount of $320,000, to PKCC for construction of site improvements at
Forward Operating Base Naghlo, in Kabul Province, Afghanistan (R4, tab 1 at 2-4). By
unilateral modification signed 15 October 2010, the Army terminated the contract for the
convenience of the government (R4, tab 6).
2. By memorandum dated 17 June 2012, the Army determined that PKCC was
entitled to receive payment for Invoice No. 004 in the amount of $71,793.92 for services
the Army received and accepted on 21 April 2010 (R4, tab 7). The Army paid PKCC
that amount on 16 January 2013 (R4, tab 9).
3. On 13 September 2015, PKCC filed a notice of appeal with the Board, along
with two attachments. The notice of appeal reads as follows (punctuation and syntax in
original):
[I] m an AFG local company, in 2009 we finished a contract
with the US GOV the contract agency was located in kabul in
a military camp was named Phoenix contracting while they
paid my invoice for 97% the remain 3% still due with them
we found the camp has been transferred to AFGHAN GOV
from 2009 till now we are in try to get with the PHOENIX we
cannot be able to get with them we checked with others
military contracting they had told they had terminated the
contract
since we have signed payment for 100% this is completely
un fair and illegal we do not accept this decide we demand
ours remain payment from the contracting
from you we are kindly requesting to push any Gov link to
pay us the remain fund
4. The first attachment to PKCC's notice of appeal is an invoice dated
17 April 2010 in the amount of $6,400, identified as Invoice No. 005 for Naghlo Forward
Operating Base Site Improvement, stating that "[a]ll Project SOW facilities have been
complted [sic] 100% completed Project ETT Naghlo[.]"
5. The second attachment to PKCC's notice of appeal is a DD Form 250, Material
Inspection and Receiving Report, which references Invoice No. 005. The form indicates
it is for "SITE IMPROVEMENT FB NAGHLO ETT PROJECT @ 98% partial payment
request[.]" It sets forth a payment amount of $6,400 and lists a total contract amount of
$320,000, with prior payment of $313,600. The form includes signatures of a purported
authorized government representative indicating the items listed in the form were
received and accepted on 21April2010.
6. On 12 November 2015 and 4 February 2016 the Board notified PKCC it was
overdue in the submission of its complaint. PKCC responded by email dated
22 February 2016, again forwarding Invoice No. 005 and the DD Form 250. PKCC
repeated the allegations contained in its notice of appeal, but this time included the
following information (punctuation and syntax in original):
[T]hat dd250 form that has signed officialy by US GOV
authorized inspector called COR i had submitted the final pay
package to the camp eggers financial office they was
processed that after some times we found it had not processed
may be lost at their system finally my remain amount on the
final invoice didnt pay to me
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DECISION
The Army moves to dismiss this appeal, arguing that the Board lacks jurisdiction
because PKCC failed to submit a claim to the contracting officer (mot. at 3). PKCC
bears the burden of proving the Board's subject matter jurisdiction by a preponderance of
the evidence. Reynolds v. Army & Air Force Exchange Service, 846 F.2d 746, 748 (Fed.
Cir. 1988); United Healthcare Partners, Inc., ASBCA No. 58123, 13 BCA ii 35,277 at
173,156. Pursuant to the Contract Disputes Act (CDA), "[e]ach claim by a contractor
against the Federal Government relating to a contract shall be submitted to the
contracting officer for a decision." 41 U.S.C. § 7103(a)(l). Thus PKCC must prove that
it submitted a claim for payment of Invoice No. 005 to the contracting officer in order to
establish this Board's jurisdiction. Id.; United Healthcare Partners, 13 BCA ii 35,277 at
173,156-57.
Although the CDA itself does not define the term "claim," the Federal Acquisition
Regulation (FAR) does:
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.... A voucher, invoice, or other
routine request for payment that is not in dispute when
submitted is not a claim. The submission may be converted
to a claim, by written notice to the contracting officer as
provided in 33 .206( a), if it is disputed either as to liability or
amount or is not acted upon in a reasonable time.
FAR 2.101.
PKCC has provided no documentation to establish that it submitted a claim for
payment of Invoice No. 005 to the contracting officer (SOF iii! 3-6), and did not file a
response to the Army's motion to dismiss. Although in certain circumstances an invoice,
once submitted to the contracting officer for payment, may be converted into a claim, see
FAR 2.101, the record is devoid of any evidence that the Army ever received a copy of
Invoice No. 005 prior to PKCC's filing of this appeal, much less a claim for payment of
the invoice that comports with the requirements of FAR 2.101. Although PKCC's
22 February 2016 email to the Board alleges that it provided "the final pay package to
the camp eggers financial office" (SOF ii 6), this allegation, taken as true, supports
a finding that PKCC submitted a routine request for payment and not a claim. See
FAR 2.101 ("A voucher, invoice, or other routine request for payment that is not in
dispute when submitted is not a claim."). PKCC has therefore failed to meet its burden of
establishing the Board's jurisdiction.
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CONCLUSION
The Army's motion to dismiss for lack of jurisdiction is granted. The appeal is
dismissed without prejudice to PKCC submitting a claim that comports with the
requirements of the CDA and FAR 2.101 to the contracting officer. The Army is
requested to provide PKCC with contact information for the appropriate contracting
officer to whom PKCC can submit such a claim.
Dated: 14 July 2016
DAYID D' ALESSANDRIS
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
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'MARI( N. STEMPLE~
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 No. 60173, Appeal of Panjshir
Kandahur Construction Co., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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