BCC-UIProjects-ZAAZTC Team JV ( 2022 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of - )
)
BCC-UIProjects-ZAAZTC Team JV ) ASBCA No. 62846)
Under Contract No. W5J9JE-l l-C-0139 )
APPEARANCE FOR THE APPELLANT: Patrick B. Kernan, Esq.
Kernan & Associates, PLLC
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
Rebecca L. Bockmann, Esq.
Michael E. Taccino, Esq.
U.S. Army Engineer District, Middle East
Winchester, VA
OPINION BY ADMINISTRATIVE JUDGE PROUTY
The motion to dismiss we decide here centers upon a dispute between two
companies in Afghanistan which had established a joint venture, known as
BCC-UIProjects-ZAAZTC Team JV (B-U-Z), 1 to perform a contract with the United
States. After performance of the above-captioned contract (the contract) by B-U-Z,
one of the companies that made up the venture, Zamarai Ali Ahmad Zada General
Trading and Construction Company (ZAAZTC) 2, submitted a request for equitable
adjustment (REA) to the contracting officer (CO), seeking about $4 million for costs
associated with a differing site condition and the delayed approval of design
submittals. The REA was denied as lacking substantiation. Nevertheless, shortly
thereafter, the president of ZAAZTC’s erstwhile partner, Behnam Construction
Company (BCC), reached out to the CO to inform him that ZAAZTC did not have the
right to submit claims on behalf of the joint venture and that the CO should only
consider claims submitted by him. The BCC president’s position, in fact, had the
virtue of being supported by the text of the joint venture agreement and the fact that
1
We refer to the party that brought this appeal as “appellant,” rather than “B-U-Z” as
we normally would because the government argues that the party advancing
this appeal is not, in fact, the joint venture.
2
In a bit of advocacy which obscures the identity of the parties to its advantage,
appellant refers to the joint venture as “ZAAZTC” in its briefing (see app.
opp’n at 1), despite the fact that ZAAZTC is actually just one member of the
joint venture – and the minority member, at that. As will be seen, this is telling.
the contract was executed on behalf of the joint venture by him. ZAAZTC responded
to this bombshell by completely ignoring it and submitting a new REA some months
later which aimed to address substantive problems with the first REA that the CO had
denied. After this REA was, in turn, denied (for having been presented after final
payment and because the CO determined that ZAAZTC did not speak for the joint
venture), ZAAZTC presented the CO with a “settlement agreement” in which
ZAAZTC and BCC had agreed to split any proceeds of the “claim.”
In the end, notwithstanding the “settlement,” because the claim was not
submitted by a person with authority to do so on behalf of the joint venture, we find
that we do not possess jurisdiction. Moreover, even if it had been properly submitted,
we would have found that it was appealed too late since the claim was denied more
than 90 days before the appeal to the Board.
FINDINGS OF FACT
I. Preliminaries
A. Joint Ventures are Formed
On April 11, 2010, two Afghan companies, BCC and United Infrastructure
Projects (UIP), entered into a “teaming agreement.” According to the terms of the
agreement, UIP was to provide design work for the projects the two worked on
together, while BCC would perform the actual construction for such projects.
(Shafique decl. Ex. 1) 3
A little more than a year later, on May 20, 2011, BCC entered into a joint
venture agreement (the JV agreement) with ZAAZTC (R4, tab 27 at 1; see also
Shafique decl. ¶ 2). The purpose of the joint venture was to perform the contract that is
the subject of this dispute (Shafique decl. ¶ 2); hence, despite being signed on May 20,
2011, the JV agreement would not become effective until the contract was awarded
(R4, tab 27 at 1-2). The JV agreement provided that UIP would perform design work
for the contract and that BCC would perform 60% of the construction work, while
3
“Shafique decl.” refers to the declaration of Muhammad Shafique, Managing
Director of ZAAZTC, which is attached to Appellant’s opposition to the
government’s motion to dismiss. Appellant also filed exhibits to that
declaration. We refer to them as “Shafique decl. Ex.__.” Although appellant
asserts that this arrangement was executed in 2011, (app. opp’n at 2) the
agreement plainly states “Sunday, April 11, 2010” (Shafique Decl., Ex. 1)
(emphasis added). Moreover, April 11 fell on a Sunday in 2010, but was a
Monday in 2011, as the government points out in its reply brief (gov’t reply br.
at 2, n.2).
2
ZAAZTC would perform 40% of it (id. at 2). Accordingly, the proceeds of the contract
would be similarly split between the parties, 60/40, with BCC paying the 40% to
ZAAZTC (id. at 3), which implied that BCC would obtain the proceeds from the
government and then pay ZAAZTC its share. Importantly for the dispute before us,
paragraph 3.3 of the JV agreement set forth the individual who would represent the
parties to the government. That paragraph provided:
Both parties agreed to introduce and authorize Mr. Ahmad
Tariq Barakzai to sign the contract on behalf of the joint
venture and is authorized to sign solicitations, applicable
amendments, and bind the entire joint venture to its
obligation under any contract which may result from the
solicitation.
(R4, tab 27 at 4) (emphasis in the original) The same Mr. Barakzai executed the JV
agreement on the next page as President of BCC. Dr. Wahid Zahed 4 executed the
agreement as Vice President of ZAAZTC. (Id. at 5)
The JV agreement never set forth a name for the entity it created, but the
“footer” of all five pages of the agreement was captioned “BCC-ZAAZTC - Joint
Venture Agreement” (R4, tab 27).
B. The Contract is Awarded
The contract was awarded by the United States Army Corps of Engineers (the
Corps) to “BCC-UIProjects-ZAAZTC Team.” On July 18, 2011, it was executed by
the government CO; on July 20, 2011, Mr. Barakzai (previously noted as the
individual specified by the JV agreement) executed the contract as “Team President.”
(R4, tab 4 at 2) The contract was in the amount of $11,625,113 and was for the design
and construction of an Afghanistan National Police battalion patrol facility in Baghlan,
Afghanistan (id. at 6). The record does not contain any explanation as to why the CO
identified the contractor in the contract as the “BCC-UIProjects-ZAAZTC Team,”
instead of the BCC-ZAAZTC JV as referenced in the agreement discussed above,
4
In several documents in this appeal, we have seen variations of Dr. Zahed’s name:
sometimes it is Dr. Wahid Zahedi, as it is in the JV agreement (R4, tab 27 at 5);
sometimes, Dr. Wahidullah Zahed, such as when he certified the first REA in
this matter (Shafique decl. Ex. 4 at 5), and there is also Dr. Wahidullah Zhed
(gov’t supp. br. Ex. 3 at 11). The signature blocks, executed in ink, all include
the somewhat legible letters “Wahid” enclosed in a partial oval. Sometimes, he
is referred to as Dr. Wahidullah. Despite the slight differences in the typed
name, these are all obviously signed by the same person and we will refer to the
author as Dr. Zahed throughout, for clarity.
3
although we suspect that may have been how the entity identified itself when it bid on
the contract. In any event, the weight of the evidence indicates that the contractor we
refer to as B-U-Z was one and the same as the BCC-ZAAZTC Joint Venture
referenced above, not some other entity that included all three companies as
signatories to a different agreement.
The contract included many of the usual standard clauses for a contract of its
type. Of particular relevance to this dispute, the contract included, by reference, the
July 2002 Disputes Clause found in section 52.233-1 of the Federal Acquisition
Regulation (FAR) (R4, tab 4 at 11). Relatedly, it included by reference, the provision
in the Department of Defense Supplement to the FAR (the DFARS) governing REAs,
DFARS, 252.243-7002 (MAR 1998) (id. at 12). It also included FAR 52.236-2,
DIFFERING SITE CONDITIONS (APR 2004) (id. at 11).
C. Trouble in Performance
After performance began, appellant alleges that it encountered site conditions
that differed from what the government had represented. These conditions, according
to appellant, significantly delayed completion of the contract and significantly
increased B-U-Z’s costs. (See, e.g., R4, tab 2) In any event, the contract was
substantially complete by September 7, 2014 (R4, tab 25).
II. Disputes of More Than one Variety
A. The First REA is Submitted in July 2014
On July 17, 2014, Mr. Stephen Southerland 5 of Compliance Contracting, LLC,
sent to the CO a document styled as an REA on the contract (Shafique decl. Ex. 4). 6
Mr. Southerland asserted in his cover letter that he represented “BCC ZAAZTC JV-
UIP Team 7 on contract administration matters for subject contract” (id. at 1). The
REA, itself, though requesting 276 delay days and a “net total” of $4,049,494 in
“claimed” damages, was not particularly detailed and appears to be asserting
entitlement (it had a section titled, “Entitlement”) based upon both delayed approval of
5
Mr. Southerland was a claims consultant who, according to his LinkedIn profile,
provided by the government, had 40 years of experience in government
contracting, including 15 as a government CO (see gov’t supp. br. Ex. 1).
6
Interestingly, this document is not part of the Rule 4 file, though it is referenced in
government correspondence (see R4, tab 24) and we have no reason to question
the authenticity of the version provided with the Shafique Declaration.
7
The contract was not actually with “BCC ZAAZTC JV-UIP Team,” as Mr.
Southerland wrote but, as noted above, was with “BCC-UIProjects-ZAAZTC
Team.”
4
design transmittals and a differing site condition (id. at 2-5; see also Shafique decl. ¶¶
6-7) (describing bases of REA). One significant problem with this REA is that its “net
total” of damages is mathematically inconsistent with the numbers that
Mr. Southerland purportedly used to arrive at this figure on behalf of his client. It
plainly states that the $4,049,494 is derived by adding $1,532,076 in “quantum meruit”
damages to $264,960 in “mitigated liquidated damages” to $2,335,790 in extra
excavation costs 8 due to a differing site condition minus $233,332 for grading already
included in the contract (see Shafique decl. Ex. 4 at 1). If we do the math of
$1,532,076 + 264,960 + $2,335,790 - $233,332, we arrive at $3,899,494, which is
$150,000 less than the “net total” requested in the REA. The component numbers are
all repeated within Section III, “Pricing” of the REA and so, too, is the “net total” of
$4,049,494 (id. at 4-5). As a matter of fact-finding, it is not clear whether the REA
was requesting $4,049,494 or was really intended to request $3,899,494 (or even
$3,899,484 if the math error on the excavation amount were corrected).
This REA never explicitly requested a decision by the CO (see Shafique decl.
Ex. 4). It was executed by Dr. Zahed (he who executed the JV agreement on behalf of
ZAAZTC, as noted above), who signed at the end, under the section labelled “Part IV.
10 USC 2014(a) 9 Certification,” which included language attesting to the good faith
nature of the REA and that the data was accurate to the best of his knowledge and
belief. Under his signature, Dr. Zahed had a signature block which identified him as
“Vice President BCC- ZAAZTC” and included a ZAAZTC email address. (Id. at 5)
Mr. Barakzai’s name and signature are nowhere to be found on this document.
The CO responded to the REA by sending a letter by email on July 27, 2014,
addressed to Dr. Zahed, but to a BCC email address, asking for supporting
documentation and a baseline schedule. He explained that, without such information,
he could not assess the merits of the claim, and that if he did not receive it within 10
days, he would assume no such evidence existed and would make his decision without
it. (R4, tab 24)
It is not clear whether further information was provided to the CO (there is none
in the Rule 4 file) and on September 15, 2014, in a letter sent to Dr. Zahed on the same
BCC email address as the July 2014 letter, the CO denied the REA. He did so for lack
of substantiation of the costs and for the contractor’s alleged failure to notify the CO
8
This number, too, is off, but just by a little bit. It is derived by multiplying the
number of extra cubic meters excavated by $10. The number of extra cubic
meters (according to the REA) is 233,578, but the cost in the REA was
$2,335,790. (See Shafique decl. Ex. 4 at 4)
9
This section of the United States Code requires a certification for REAs that is less
comprehensive than the certification the CDA requires for claims over
$100,000. Compare 10 U.S.C. § 2014(a) to 41 U.S.C. § 7103(b).
5
of the differing site condition. This letter closed by referring Dr. Zahed to the
contract’s Disputes Clause if he was dissatisfied with the results. (R4, tab 28)
Although there is no direct evidence that Dr. Zahed received this email, the
preponderance of circumstantial evidence supports a finding that he did: in a second
declaration from Mr. Shafique that was submitted in response to our request for
supplemental briefing, he stated that ZAAZTC (ZAAZTC being defined in this
declaration as the stand-alone company, not the joint venture) had received a number
of communications from the CO, including one dated “July 15, 2014,” which did not
include the right to appeal the CO’s decision (app. supp. br. Ex. 1 at 1). There is no
indication elsewhere in the record of any July 15, 2014 communication from the CO to
B-U-Z or ZAAZTC, which causes us to believe this was a typo and that Mr. Shafique
most likely meant the September 15, 2014 communication, especially since the REA
was submitted two days after July 15, 2014. Moreover, as discussed below, there is
evidence that a later REA submitted by Mr. Southerland responded to the criticisms in
the September 15, 2014 CO’s letter.
B. Mr. Barakzai Disavows Claims Submitted by Anybody but Him
On March 23, 2015, Mr. Barakzai sent an extraordinary letter to the CO
demanding that any claim on the contract submitted by anybody but him should “be
immediately dismissed by USACE” (R4, tab 26). This letter began by stating that,
“Ahmad Tariq Barakzai, President of the BCC -ZAAZTC JV and President of
BCC-ZAAZTC JV - UIP Team is the only legally authorized person to sign and
submit any claims regarding the CN#W5J9JE-11-C-0139 - Collapsible Soil” (id.). It
moved on to demand dismissal of unauthorized claims, as noted above, and ended by
“inform[ing]” the CO that anybody else who had submitted a claim on the contract on
behalf of B-U-Z did not have the authority to do so. The last line of the letter provided
two email addresses that Mr. Barakzai instructed the CO were “[t]he only legitimate”
ones for correspondence. (Id.) There is no evidence before us of any response by the
government to this letter as there were no pending claims at this time.
C. Another REA is Submitted (not by Mr. Barakzai) in July 2015
Notwithstanding Mr. Barakzai’s March 23, 2015 letter, Mr. Southerland, again
with Dr. Zahed’s cooperation, submitted an REA to the CO regarding the alleged
differing site condition, but made no mention of delays in responding to submittals and
reduced the demand to $3,453,725 10 (R4, tab 2 at 1). This second REA was dated
May 27, 2015, though actually submitted on July 8, 2015 because Mr. Southerland
apparently had difficulty reaching the CO (see R4, tab 29 at 3), and had a similar cover
letter from Mr. Southerland to the 2014 REA, averring that he represented the “BCC
10
It did not include any of the glaring mathematical inconsistencies of the 2014 REA.
6
ZAAZC 11 JV – UIP Team” for contract administration matters (R4, tab 2 at 1). It
made no mention, whatsoever, of the July 2014 REA or the CO’s rejection of it,
though it directly addressed the prime bases for that rejection by providing a spread
sheet with its costs and explaining that it did not need to point out the differing site
condition to the CO since the government was on constructive notice of the conditions
(id. at 1, 4). It is rather obvious to us that Mr. Southerland drafted the REA with the
CO’s prior rejection of the first REA in mind. The text of the REA closed with a
certification made by Dr. Zahed, again identified in his signature block as “Vice
President BCC-ZAAZTC” (id. at 4). On July 12, 2015, Mr. Southerland sent a follow-
up email to Mr. Sanchez (the CO) in which he noted that he could obtain a letter from
Dr. Zahed authorizing him to speak on behalf of the contractor if Mr. Sanchez wished
(R4, tab 29 at 2).
D. The Corps has Some Questions and Denies the REA
On August 5, 2015, Mr. Dennis Denker of the Corps, sent an email to the two
email addresses cited at the end of Mr. Barakzai’s March 23, 2015 letter. The email
noted that letter and asked whether its disavowal of claims not coming from
Mr. Barakzai still applied to the May 27, 2015 REA that the Corps had received from
Mr. Southerland in July which was certified by Dr. Zahed. It provided that, if things
had changed and Mr. Southerland or Dr. Zahed were now permitted to submit claims
on behalf of the joint venture, the Corps would need a signed letter from Mr. Barakzai
to that effect. (See gov’t supp. br., Ex. 3 at 5-6)
After Mr. Denker sent a follow-up email on August 25, 2015, requesting some
confirmation that he had sent the email to the proper party (id. at 5), Mr. Barakzai
responded in an email dated September 13, 2015 (see id.). This email bluntly stated:
Benham CC has not submitted the REA for Collapsible
Soil of Baghlan project and, therefore, can’t confirm it and
can’t provide certification.
The REA has been submitted to USACE by unauthorized
parties without Mr. Ahmad Tariq Barakzai’s consent.
(Id.)
On December 1, 2015, Mr. Shafique, from ZAAZTC, sent an email to
Mr. Sanchez of the Corps (to whom Mr. Southerland had first sent the 2015 REA). He
inquired about the status of “our claim.” He further noted that “was too long that we
11
Although the T was left off of ZAAZTC we presume this to have been a mere
typographical error, rather than indicating a different entity.
7
haven’t received any further updated from Govt.” Mr. Sanchez responded with an
email on December 16, 2015, informing Mr. Shafique of the email from Mr. Barakzai
stating that the REA was unauthorized. Mr. Sanchez stated that, as a result of that
email, the Corps considered the contract closed. Mr. Sanchez added that final payment
had been made on the contract in September 2014, and under the FAR, no REAs are to
be considered for differing site conditions after final payment. He ended his email
stating: “I consider this matter closed. No further action will be considered on this
request.” (See gov’t supp. br., Ex. 3 at 1)
E. ZAAZTC and BCC Resolve Their “Internal Dispute”
Apparently, Mr. Sanchez’s December 16 email had an effect on the joint
venture partners. In a document dated February 7, 2016 (R4, tab 30 at 1), but with
apparently notarized signatures dated February 8, 2016 (id. at 2), Mr. Barakzai and
Dr. Zahed made a self-titled “Settlement Agreement” (id. at 1). The agreement
provided that BCC and ZAAZTC would be the “beneficiaries of any monies received
from [the Corps] under a claim for [the contract].” The agreement further provided
that ZAAZTC “covenants and agrees that it has submitted a claim for [the contract]
and shall pay 50% of any proceeds paid by [the Corps] for such settlement proposal to
[BCC].” It concluded by stating, “The Joint Venture of the parties is hereby
dissolved.” (See id.)
Notably, the settlement agreement did not purport to retroactively authorize
Dr. Zahed to submit the REAs 12 himself (or through Mr. Southerland) (R4, tab 30). In
response to our supplemental briefing order, appellant concedes that there is no such
authorization to be found in the settlement agreement or elsewhere in the record (app.
supp. br. at 13-14).
On Feb 10, 2016, Mr. Barakzai 13 sent an email to Mr. Sanchez, attaching a copy
of the executed settlement agreement, which he characterized as “the resolution of the
earlier internal dispute,” implicitly requesting the REA be addressed (gov’t supp. br.,
Ex. 4 at 4). Dr. Zahed sent Mr. Sanchez a follow-up email on March 10, 2016
requesting an update on the status of the REA in light of the resolution of the dispute
between the parties (id. at 2-3). Mr. Sanchez responded the next day that he
considered the matter closed “per my 17 Dec 15 email to Mr. Shafique” (id. at 2). On
March 13, 2016, Mr. Southerland re-entered the picture, with an email to Mr. Sanchez
stating that, “[a]s you know, my company represents ZAAZTC” and inquiring about
how final payment could have been effected on the contract without a release (id. at 1-
12
It refers to a single claim, which we presume to be the one submitted by
Mr. Southerland in July 2015.
13
The email is signed by “Ahmad Tariq” (gov’t supp. br., Ex. 4 at 4), which we
understand to be Mr. Barakzai’s first two names.
8
2). In response, on March 12, 14 Mr. Sanchez informed Mr. Southerland that the claim
was not considered live at the time of the final payment because BCC had informed
the government that it was unauthorized (id. at 1). There appears to have been no
further communications until more than two months later, on May 30, 2016, when
Mr. Southerland emailed to Mr. Sanchez that “we wish to proceed with the REA
and/or possibly convert it to a claim” (id. at 1). Mr. Larosa, from the Corps responded
to this email: “Convert to a claim – REA has been responded to” (id. at 1).
The government has not issued any additional CO’s final decisions beyond
Mr. Sanchez’s December 17, 2015 determination, and, on March 11, 2021, appellant
filed with the Board an appeal of what it considered to be a deemed denial of its
“May 27, 2015” claim. Appellant’s complaint states that the Board’s jurisdiction is
based on the government’s failure to respond to the May 27, 2015 claim which,
appellant concedes, was sent to the CO on July 8, 2015 (see compl. ¶ 3). The
complaint makes no reference to the dispute about authority to pursue claims on behalf
of B-U-Z, nor does it mention the May 2016 correspondence (see id.).
F. A Final Wrinkle
We requested supplemental briefing upon a number of subjects, including
whether the CO made final decisions on the two REAs and whether any failure to
include notification of appeal rights in these notifications would have been to the
prejudice of appellant in submitting a timely appeal (see Order dtd. September 23,
2021). In response to the prejudice inquiry, appellant provided a second declaration
from Mr. Shafique. Mr. Shafique declared that ZAAZTC (here, meaning the
company, ZAAZTC, and not the joint venture of which ZAAZTC was a partner) had
received the CO’s communications dated July 15, 2014, December 17, 2015, and
March 12, 2016. He noted that none of these communications included notice of a
right to appeal a CO’s final decision and that “[a]bsent this notice ZAAZTC had no
knowledge of a contractor’s right to appeal from a contractor’s final decision under the
Contract Disputes Act.” (App. supp. br. Ex. 1 at 1) He further averred that if the
letters had included such notice or even a partial notice, the company would have
contacted counsel to discuss their rights (id. at 1-2). Finally, he noted that “prior to
this contract we had performed numerous contracts with the United States
Government; however, we never had a dispute with the United States government over
the performance of a contract” (id. at 2).
14
It seems odd that Mr. Southerland’s email is dated March 13, 2016, while
Mr. Sanchez’s response is dated a day earlier, the 12th, but we presume this to
be an artifact of the two email servers being in different time zones.
9
As pointed out by the government (see gov’t supp. br. at 22), this last statement
is demonstrably incorrect: ZAAZTC, in fact, has had at least one other dispute with
the United States government in contract performance and is familiar with the
procedures for appealing decisions to the Board, having done so in 2014, though that
case was dismissed for failure to prosecute. See ZAAZTC Co., ASBCA No. 59194,
14- 1 BCA ¶ 35,767. 15
DECISION
The government motion to dismiss this appeal has multiple bases, but they are
largely variations upon the theme that the wrong party submitted and certified the
claim and continues to wrongly represent itself as B-U-Z here. We address the matter
more directly and simply: Because there is no appeal of a properly submitted and
denied (or deemed denied) claim before us, we grant the government’s motion to
dismiss the appeal. We find it relatively easy to find that the two REAs, submitted
approximately a year apart, were not claims because they were not submitted by
B- U- Z, but by somebody who the proper representative of B-U-Z explicitly stated did
not possess authority to submit them. They were denied before that was attempted to
be remedied, and appellant maintains that the claim being appealed before us is the one
that was submitted in July 2015 – one of the claims that was so closed.
Additionally, we find that, even if the July 2015 claim were submitted by a
contractor and even if appellant could maintain this action despite B-U-Z’s having
been dissolved by the February 2016 “settlement”, Mr. Sanchez’s December 2015
email to Mr. Shafique constituted a contracting officer’s final decision which was not
appealed to the Board within the 90-day statutory period. We also address two
additional issues raised by the government: first, finding that, since the (faulty) claim
upon which appellant asserts jurisdiction did not include allegations regarding the
government’s failure to timely decide upon contract submittals, that cause of action
would not be viable, even if we otherwise possessed jurisdiction to consider it; second,
declining to decide whether counsel is authorized to represent B-U-Z.
I. The Burden of Proof is on Appellant to Establish our Jurisdiction
It is well established that, once jurisdiction has been challenged, the burden lies
with the appellant to establish it, through a preponderance of the evidence. See, e.g.,
Tetra Tech EC, Inc., ASBCA Nos. 62449, 62450, 21-1 BCA ¶ 37,900 at 184,054
15
In that case, ZAAZTC was represented by Mr. S. Ahmad Shah (see ZAAZTC,
14- 1 BCA ¶ 35,767) who remains listed as a member of the ZAAZTC “group”
on the company’s website (see gov’t supp. br., Ex. 2). We find it highly
unlikely that Mr. Shafique, managing director of ZAAZTC, would have been
unaware of this previous appeal.
10
(citations omitted); see also Gen. Mills, Inc. v. United States, 957 F.3d 1275, 1284
(Fed. Cir. 2020); Reynolds v. Army Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir.
1988). We accept as true all undisputed facts in the complaint and draw all reasonable
inferences in favor of the non-moving party. Estes Exp. Lines. v. United States,
739 F.3d 689, 692 (Fed. Cir. 2014). We may also “inquire into jurisdictional facts”
where there is a dispute. Gen. Mills, 957 F.3d at 1284 (citing Rocovich v. United
States, 933 F.2d 991,933 (Fed. Cir. 1991)). Thus, where necessary, we may engage in
fact-finding based on our review of the record. See CCIE & Co., ASBCA Nos. 58355,
59008, 14-1 BCA ¶ 35,700 at 174,816 (citing Raytheon Missile Sys., ASBCA
No. 58011, 13 BCA ¶ 35,241 at 173,016).
II. Appellant’s Appeal Must be Dismissed Because There is no Claim
Submitted by the Joint Venture
Under the Contract Disputes Act (CDA), our jurisdiction is premised upon the
appeal of a CO’s final decision upon a valid claim submitted by a contractor. See
41 U.S.C. §§ 7103, 7104. We will discuss other components of a claim in more detail
in Section III below, but our focus here is upon the CDA’s requirement that the claim
be submitted by a “contractor.” 41 U.S.C. § 7103. 16 There is no such claim here.
A. The Contractor Here is the B-U-Z Joint Venture
Though it may seem to be a matter of semantics, it is an important truism that
the party the government has contracted with here is the B-U-Z joint venture. It is not
the component companies of ZAAZTC or BCC. See, e.g., PHA-JMR JV, ASBCA
No. 59032, 14-1 BCA ¶ 35,685 at 174,675-76 (quoting WorleyParsons International,
Inc., ASBCA No. 57930, 14-1 BCA ¶ 35,482 173,959-60). UIP also plays a part,
although the joint venture agreement forming B-U-Z was between only BCC and
ZAAZTC. 17
16
This is a different argument than one regarding the certification of the claim.
Though many of the cases discussed herein revolve around the question of
claim certification required by 41 U.S.C. § 7103(a)(1), (b), here, we are looking
to whether the claim, itself, was submitted on behalf of the joint venture. By
statute, a claim certified by the wrong person can be remedied in the midst of
litigation, see, e.g., Metro Machine d/b/a General Dynamics NASSCO-Norfolk,
ASBCA No. 62221, 20-1 BCA ¶ 37,631 at 182,695; there is no basis to find
that a claim not submitted by the contractor can.
17
The government has made arguments that the ever-shifting name of the joint venture
in the contract, the correspondence, and the claim(s)/REA(s) is a basis for
finding lack of authority to submit the claim (e.g., gov’t mot. at 11-13). We are
sympathetic to this argument and believe that the sloppiness in naming the JV is
a symptom that stems from the illness that pervades this matter – ZAAZTC
11
B. No Claim was Submitted by B-U-Z
It is a basic proposition, but important to note that, since B-U-Z is not a “natural
person,” the CDA requires that the person who submits the claim to the government be
a person with authority to bind the contractor as to the claim. See Kiewit/Tulsa-
Houston v. United States, 981 F.2d 531, 533 (Fed. Cir. 1993) (citations omitted).
Although individual partners in a joint venture may generally take action for the joint
venture, see, e.g., Lentz v. United States, 346 F.2d 570 (Ct. Cl. 1965); Saldemi Joint
Venture v. Dalton, 5 F.3d 510, 513 (Fed. Cir. 1993), the terms of the joint venture
agreement are controlling when they are more limited. See Kiewit/Tulsa-Houston,
981 F.2d at 534 (generally applying terms of the agreement to determine authority
issues); Saldemi, 5 F.3d at 513 (recognizing the rule from Kiewit/Tusla-Houston); see
also PHA-JMR JV, 14-1 BCA ¶ 36,685 at 174,676.
1. Mr. Southerland did not Possess Authority to Submit Either the 2014 or the
2015 REAs 18 to the Government
The first question presented to us is whether Mr. Southerland, who apparently
derived all of his authority from Dr. Zahed, possessed the authority to submit the two
REAs on behalf of B-U-Z. Given the fact that Dr. Zahed provided certifications (of a
sort) to the REAs submitted by Mr. Southerland and the government has presented no
challenge to Mr. Southerland’s actions on this ground, we find it appropriate to
consider Mr. Southerland to have been acting under a grant of whatever authority
Dr. Zahed possessed. Dr. Zahed, however, did not possess authority to present claims
on behalf of the joint venture.
We arrive at this conclusion by a careful review of the joint venture agreement,
reading it like any other contract, interpreting it “in terms of the parties’ intent, as
revealed by language and circumstance.” United States v. Winstar Corp., 518 U.S.
839, 911 (1996) (Breyer, J., concurring) (citations omitted), and “constru[ing it] to
effectuate its spirit and purpose giving reasonable meaning to all parts of the contract.”
Hercules, Inc. v. United States, 292 F.3d 1378, 1381 (Fed. Cir. 2002). The agreement
specified that the parties would “authorize” Mr. Barakzai to sign the contract on behalf
of the joint venture, to sign applicable amendments, and to “bind the entire joint
venture to its obligation under any contract which may result from the solicitation.”
personnel acting on behalf of their own company and not on behalf of the joint
venture. Nevertheless, minor errors in the naming of the contractor, when it is
evident what is being referred to, are not a basis for us to dismiss this appeal.
Cf. Bell Helicopter Textron, Inc. and the Boeing Co., ASBCA No. 59561,
15- 1 BCA ¶ 36,111 at 176,293.
18
As will be discussed later in this opinion, appellant would later refer to these REAs
as claims.
12
Though it does not specify the submission of claims, we find this grant of authority to
be broad enough to encompass this duty. See Stradadile/Aegis Joint Venture, ASBCA
No. 39318, 95-1 BCA ¶ 27,397 at 136,587-88 (broad delegation of authority would
encompass the authority to submit claims even if not specifically mentioned). And
although it does not expressly preclude other representatives of the individual joint
venturers from acting on behalf of the joint venture in dealing with the government, it
implicitly does so since the clear intent of the agreement’s language was to vest
authority in dealing with the government in one representative of the joint venture and
that representative was Mr. Barakzai – the representative of the majority partner.
Moreover, the JV agreement explicitly vested in him the authority to bind the joint
venture to the contract. Hence, we are convinced that the agreement precluded
ZAAZTC from submitting claims to the government without Mr. Barakzai’s consent.
Cf. Bellinc Co, Inc. v. Babbitt, 107 F.3d 30 (Fed. Cir 1996) (table) (“full and complete
authority” to act for joint venture precluded other member of joint venture from
possessing such authority). Any other reading of the JV agreement would be
disfavored since, if both parties to the agreement retained the inherent authority to
perform the duties explicitly granted to Mr. Barakzai in the agreement, there would be
no need for the agreement to spell out that he could and would perform them without
mentioning the ZAAZTC partner. Moreover, the structure of the JV agreement, with
the assumption that contract proceeds would be made to the majority partner (BCC),
which was represented by Mr. Barakzai, and then disbursed to ZAAZTC is consistent
with BCC being the joint venture’s representative to the government. Finally, though
UIP was not a signatory to the JV agreement, it plainly had interests in it that stemmed
from its prior agreement with BCC and those interests would be protected only if the
party with whom it had a separate agreement (BCC) had final say on dealings with the
government.
Appellant argues that the facts here are similar to those in our decision in the
appeal of Rosinka Joint Venture, ASBCA No. 48143, 97-1 BCA ¶ 28,653, in which we
(according to appellant) permitted a claim to be advanced by just one of the joint
venturers after a dispute between the two was subsequently resolved (app. supp. br.
at 15). Appellant misreads Rosinka. First, it is important to explain that the portion of
that opinion cited by appellant was not joined by two of the judges on the three-judge
panel that considered it since they believed it unnecessary to consider the issue. See
Rosinka, 97-1 BCA ¶ 28,653 at 143,140. Hence, it is not binding precedent upon us.
Moreover, even the nonbinding part of the opinion that appellant is relying upon does
not say what appellant thinks it says; instead, it says that a managing partner, to whom
authority to conduct substantially “all affairs” of the joint venture was granted, could
be considered to have authority to submit a claim. See id. at 143,137-38. That is in no
way similar to the facts presented here. The managing partner here was more
analogous to Mr. Barakzai than to Dr. Zahed.
13
Even if we misinterpret the agreement and, in fact, both ZAAZTC and BCC
had the right to advance a claim (or REA) on behalf of the joint venture,
Mr. Barakzai’s communications to the government, effectively withdrawing both
REAs, would be binding since the agreement at the very least gives him final say in
representations to the government (the agreement permitted him to bind the joint
venture), and his affirmative action in directing that the REAs be withdrawn means
that they cannot be considered to be authorized claims.
2. The “Settlement” did not Retroactively Provide Mr. Southerland Authority
to Submit the Claims
When we directed the parties to provide additional briefing upon the motion, one
of the questions that we asked was whether the February 2016 “settlement” between
ZAAZTC and BCC purported to retroactively authorize Mr. Southerland’s activities as
being on the joint venture’s behalf and, if so, where it did so (see Order dtd.
September 23, 2021). Appellant’s response was that there was no such retroactive
authorization because Dr. Zahed always possessed the authority to submit a claim on
behalf of the joint venture (see app. supp. br. at 14-15).
We agree that there was no retroactive authorization here, for there is no place in
the record which can be found to do as much. 19 Indeed, the “settlement agreement” is a
recognition that ZAAZTC had submitted a claim on the contract (though it does not
specify that the claim was submitted on behalf of B-U-Z) and an agreement to split any
proceeds from that claim. Put slightly differently, it did not purport to authorize that
claim; rather, it accepted it as a fait accompli, and divided the possible results. Of note,
although the original JV agreement included a 60/40 split of the proceeds, with 60%
going to BCC and 40% to ZAAZTC; the settlement agreement sent only 50% of the
proceeds to BCC with the other 50% going to ZAAZTC. This is further evidence that
ZAAZTC was not acting on behalf of B-U-Z when Dr. Zahed had Mr. Southerland
submit the REAs, because, if it had been, the rules of the original JV agreement would
appear to spell out how the proceeds of the REAs would have been distributed, with the
money first going to BCC which would distribute to ZAAZTC its smaller share.
19
We are not so certain that a retroactive authorization would be effective in any
event: the REAs considered and denied by the CO were never properly before
him at the time that he acted on them. Not to belabor the point, but this is not
like certification of a claim that, by statute, is permitted after the fact when
defective. See 41 U.S.C. § 7103(b)(3).
14
3. Appellant Does not Assert That it Submitted a Later Claim
For its own reasons, appellant has never asserted that Mr. Southerland’s
communications with the government after Mr. Sanchez’s email in December 2015
rejecting the REA constituted a claim or the perfection of a claim. It could certainly
have argued that Mr. Southerland’s May 2016 statement that “we” wished to proceed
with the REA or pursue a claim constituted a reach back to the May 2015 claim and,
perhaps, a resubmission of it – this time with whatever authority the settlement
agreement may have provided. But appellant does not make this argument. Further,
we will not make it for it, especially since there are a number of complications that are
not addressed by the briefing that could preclude the success of such an argument,
such as the (possibly related) facts that the settlement agreement dissolved B-U-Z and
Mr. Southerland did not purport to be acting on behalf of B-U-Z in 2016, but for
ZAAZTC. Moreover, appellant does not present any argument about whether a new
claim could be advanced on behalf of B-U-Z after the entity ceased to exist and,
without knowledge of Afghan law, we cannot determine whether this is a case, like
Rosinka, where dissolution of the entity precludes further actions on its part, such as
bringing a claim or suit or whether, under the appropriate law, the dissolved joint
venture still maintains the ability to conclude its business. But the burden of proof
would be on appellant in any event and it has not advanced evidence supporting a
finding that Mr. Southerland’s 2016 communications with the government advanced a
claim on behalf of B-U-Z or that they could have.
Thus, because the July 2015 claim that is appellant’s avowed basis for this
appeal was not submitted by the contractor, it is not a valid claim and we do not
possess jurisdiction to consider this appeal.
III. Alternatively, Appellant’s Appeal is Untimely
Throughout the briefing of this matter, and in the complaint and in the
settlement agreement, appellant has referred to the 2014 and 2015 REAs as “claims.”
If, however, they were claims, as defined by the CDA, 20 appellant was informed that
they were unequivocally denied more than 90 days prior to this appeal, in which case
this appeal would be untimely. As will be seen, the first REA was not a claim, but the
second one would have been if it were authorized.
20
We, of course, find that they are not because they were not submitted by the
contractor.
15
A. The First REA Does not Meet the Definition of a CDA Claim, but the
Second one Does
1. What Makes a Claim
We recently had cause to discuss the definition of a claim in BAE Sys.
Ordnance Sys., Inc., ASBCA No. 62416, 21-2 BCA ¶ 37,800 at 183,577:
“Claim” is not defined by the CDA, . . . thus the Federal
Circuit instructs that we turn to the FAR for its definition.
See, e.g., H.L. Smith, Inc. v. Dalton, 49 F.3d 1563, 1564-65
(Fed. Cir. 1995). FAR 2.101 provides that a claim is “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 related to the contract.”
Among other things, the claim must explain its basis, see Contract Cleaning
Maintenance, Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987) (claim must
provide CO “adequate notice of [its] basis and amount”), and request a decision by the
CO. See 41 U.S.C. § 7103(a). Additionally, the CDA requires that all claims over
$100,000 in value (such as the ones here) be certified in accordance with 41 U.S.C.
§ 7103(b). Special Operative Grp., LLC, ASBCA No. 57678, 11-2 BCA ¶ 34,860at 171,480 (citation omitted). But so long as there is an attempt at certification, even if
it is defective (either in the person certifying it or in the language used in the
certification), it may be remedied by the contractor prior to the entry of final judgment
against the government. 41 U.S.C § 7103(b)(3). Indeed, the Federal Circuit has
recently made very clear that the defect in the certification can be quite glaring and yet
still be subject to cure. See DAI Global LLC v. Adm’r of the United States Agency for
Int’l Dev., 945 F.3d 1196 (Fed. Cir. 2019).
Notably, none of the components of the definition of claim rest upon the
opinion of the CO, and his or her subjective opinion is irrelevant to the matter of
whether a communication from a contractor to the CO is a claim or not. See BAE,
21- 1 BCA ¶ 37,800 at 183,578, n.7. Similarly, a document may be called an REA by
the contractor, but nevertheless be considered a claim so long as it fits within the
FAR’s definition of claim. See Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1577 (Fed.
Cir. 1995); Hejran Hejrat Co. Ltd v. United States Army Corps of Engineers, 930 F.3d
1354, 1357-58 (Fed. Cir. 2019).
16
2. The First REA Does not fit the Definition of Claim
The first REA certainly meets some components of a claim: it is a written
demand, as a matter of right, for payment of money by the government. Moreover, it
included a certification of sorts, albeit a defective one 21 since the certification did not
include the full set of assertions required by the CDA. Nevertheless, it does not
explicitly request a CO decision nor does it seek a sum certain or adequately explain
its bases.
Although the request for a CO’s decision is not required to be explicit and may
be inferred from the circumstances, see Hejran Hejrat, 930 F.3d at 1357-58; James M.
Ellett Constr. Co. v. United States, 93 F.3d 1537, 1543 (Fed. Cir. 1996), we entertain
serious doubt that this REA made such a request. Besides the document itself, which
makes no such request for decision, there were no other communications from
appellant to the government that could be seen as converting the REA to a claim. In
any event, we need not determine whether the first REA implicitly requested this
decision since it is clear that it did not seek a sum certain. This is because a fair reading
of the REA produces two different numbers being requested: the “net total” of
$4,049,494 and the number calculated by summing the four numbers that
Mr. Southerland stated were the bases of the net total: $3,899,494. To be sure, one
might conclude that the “net total” is what is being requested, especially since
Mr. Southerland repeats that figure twice in the REA, but since the mathematics of
what Mr. Southerland purports to be requesting are so clear, there is a good argument to
be made that the $3,899,494 number is what is really being sought. Indeed, in cases in
which a net figure is not explicitly requested, but can be easily determined by resort to
simple math, such a calculated amount is the sum certain. See Creative Management
Servs., LLC v. United States, 989 F.3d 955, 963 (Fed. Cir. 2021); Modeer v. United
States, 68 Fed. Cl. 131, 137 (2005), aff’d 183 Fed. App’x 975, 977 (Fed. Cir. 2006).
Given the two different numbers, we have an ambiguity, which is plainly not a sum
certain. Moreover, were we to decide to take the number defined as the “net total,” 22
we would be faced with the question of where the missing $150,000 came from. Since
a claim is required to at least minimally explain its bases and pulling a number out of
“thin air” is not a basis, taking this option would only lead to a different reason for
finding the first REA not to be a claim, to wit: its failure to explain its basis
sufficiently for the CO to act upon it.
21
We have previously held that the use of the particular language included in the REA
certifications signed by Dr. Zahed is a remediable defect in certification. See
BAE, 21-1 BCA ¶ 37,800 at 183,578 (citing Air Services, Inc., ASBCA
No. 59843, 15-1 BCA ¶ 36,146 at 176,426-27). Post DAI Global, this
conclusion has only been strengthened.
22
This, in fact, is the number that appellant rests upon in its briefing (see app. opp’n
at 11).
17
3. The Second REA Does fit the Definition of Claim (Except for who Submitted
it)
Unlike the first REA, the second REA includes a sum certain, not subject to
confusion. Moreover, it is in writing, demands payment of that sum as of right, and
includes the same defective, but subject to remedy, certification that was found in the
first REA. The question of whether this REA is a claim, then, turns upon whether it
requests a CO’s decision.
Like the first REA, there was no explicit request for a decision in the second
REA when Mr. Southerland sent it to the CO. The difference between the two is that
it followed the first REA by about a year, seeking much the same damages (though not
exactly, plus, it did not seek compensation for alleged delays in processing contract
submittals) and there was subsequent correspondence from appellant for the second
REA. That correspondence came in the guise of the December 1, 2015 email from
Mr. Shafique to Mr. Sanchez suggesting that it was “too long” since the submission of
the “claim” and asking for its status. Mr. Shafique was polite and respectful in this
note, but by referring to his “claim” and stating that it was “too long” and that he was
asking for an update on its status, we find that he crossed the threshold to implicitly
requesting a decision on the REA. Hence, by the time of the December 1, 2015 email,
the second REA was a claim, just as appellant asserts.
The government argues that the second REA was not a claim because it was not
the intent of appellant to submit anything but an REA at the time Mr. Southerland
submitted it (gov’t supp. br. at 28-29). To the extent that the intent of the contractor is
relevant, 23 however, what was important was not what appellant intended when it first
submitted the REA, but what the REA became over time, and by the December 1,
2015 email, things had changed enough for us to find an implicit request for a final
decision. 24
B. The Second REA Was Denied by the CO on December 17, 2015
The second REA being a claim, it was clearly denied on December 17, 2015
when Mr. Sanchez, after informing Mr. Shafique that he had received Mr. Barakzai’s
23
We have previously expressed the opinion that, subject to constraints of the law, a
contractor should be able to keep an REA an REA if it so chooses, see BAE,
21- 1 BCA ¶ 37,800 at 185,579, but there is no evidence here that the contractor
intended to keep the REA from turning to a claim, while the extrinsic evidence
(e.g., referring to the REA as a “claim”) suggested just the opposite.
24
The government also appears to argue that the understanding of the CO is relevant
to whether an REA is a claim (see gov’t mot. at 17-19), but, as explained above,
that is irrelevant.
18
September 13, 2015 email stating that the claim was not valid and that he had been
advised to consider the contract closed, stated that “I consider this matter closed. No
further action will be considered on [t]his request.” That was definitive and left no
room for question.
Appellant argues that the December 17, 2015 email is not a final decision
because it includes “no substantive analysis of ZAAZTC’s claim,” but cites no law in
support of this supposed requirement (see app. supp. br. at 9). That is because there is
none.
The CDA specifies that, with respect to the contents of a CO’s final decision, it:
. . . shall state the reasons for the decision reached and
shall inform the contractor of the contractor’s rights as
provided in this chapter. Specific findings of fact are not
required. If made, specific findings of fact are not binding
in any subsequent proceeding.
41 U.S.C. § 7103(e). It does not require “substantive analysis” of a claim that has
been denied for procedural reasons, just an explanation for its reasons. Mr. Sanchez’s
email was clear in his reasons for the decision: that appellant was not the proper party
to advance the claim and that final payment had been made. It was also clear as to its
finality. The only remaining question is that of the impact of its failure to advise
appellant of its appeal rights.
Although the CDA requires the CO’s final decision to include an advisement of
appeal rights, see 41 U.S.C. § 7103(e), the failure to include this information does not
affect the validity of the CO’s final decision or stop the clock on the appeal submission
from running unless appellant can prove prejudice. See Decker & Co. v. West, 76 F.3d
1573, 1579-80 (Fed. Cir. 1996); see also Mansoor Int’l Development Services,
ASBCA No. 58423, 14-1 BCA ¶ 35,742 at 174,926. When we posed the question to
the parties of whether the Sanchez email was a final decision, we also informed them
directly of the Decker standard, above, and advised appellant of the need to
demonstrate prejudice stemming from the lack of the notice of appeal (see Order dtd.
September 23, 2021 at 2). Appellant’s response falls short of the mark.
As noted above, Mr. Shafique’s declaration in support of a finding of prejudice
concludes that ZAAZTC (the company, not the joint venture) “had no knowledge of a
contractor’s right to appeal under the [CDA].” It also stated that if there had been a
notice of appeal rights – even an incomplete notice, it would have consulted its lawyers.
And it closed by stating that the company had performed numerous contracts with the
United States before this time but never had a dispute. Unfortunately, as discussed
above, we find that significant portions of the Shafique declaration are factually false.
19
In 2014, the year before the CO’s decision here, ZAAZTC brought an appeal to the
Board and the individual who brought that appeal on behalf of ZAAZTC remains
associated with that company. Thus, we conclude that ZAAZTC, in fact, knew both of
its right to appeal decisions to the Board and knew how to do so. Its statement that it
was prejudiced by lack of appeal information is premised on its not knowing either,
which is untrue. We further add that Mr. Southerland was deeply involved with
appellant’s prosecution of its claims from July 2014 through May 2016 and that
Mr. Southerland has had decades of experience in government contracts. We find it
highly unlikely that he was unaware of the procedures for appealing CO decisions.
Similarly, the September 15, 2014 denial of the first REA, which we have found that
appellant received, included reference to the contract’s Disputes Clause, which was
another route through which appellant would have been provided information about the
means to appeal an adverse final decision. Cf. RMA Eng’g S.A.R.L. v. United States,
140 Fed.Cl. 191, 216 (2018) (notification of right to appeal under the Disputes Clause
adequate). In any event, even without Mr. Southerland’s knowledge or the reference to
the Disputes Clause in the September 15, 2014 email from the CO, we would conclude
that the falsehoods in the Shafique declaration detract so much from its value that there
is effectively no evidence presented by appellant in support of its allegation of prejudice.
Moreover, ZAAZTC’s demonstrated ability to bring an appeal to the Board is
affirmative evidence of the opposite. We thus hold that appellant has failed to meet its
burden of proving that it was prejudiced by the CO’s failure to include appeal rights in
his final decision.
C. No Appeal Was Filed Within 90 Days of the Denial of the Second REA
The Board lacks jurisdiction to consider appeals filed more than 90 days after
the contractor has received the CO’s final decision. See 41 U.S.C. 7104(a); Godwin
Corp., ASBCA No. 61410, 18-1 BCA ¶ 37,073 at 180,449 (citing Cosmic
Construction Co. v. United States, 697 F.2d 1389, 1390-91 (Fed. Cir. 1982)).
Mr. Shafique conceded that he received the December 17, 2015 email from
Mr. Sanchez, which would mean that appellant had 90 days after that date, or until
March 17, 2016, to submit its appeal to the Board. This appeal was submitted in 2021.
To be sure, there was some communication between the government and
appellant in February and early March 2016, but Mr. Sanchez made clear that the
matter was closed and gave no indication that he was reconsidering it or open to
receiving additional evidence. Hence, unlike the circumstances in other cases, such as
that presented in Guardian Angels Med. Serv. Dogs, Inc. v. United States, 809 F.3d
1244 (Fed. Cir. 2016), there would be no basis to argue that the government had re-
opened it. See Godwin, 18-1 BCA ¶ 37,073 at 180,449. To the extent that any
argument might be made that the May 2016 communications re-opened the claim, they
were more than 60 days after the time to appeal to the Board had passed, thus they
20
cannot confer jurisdiction upon us which, having lapsed, cannot be resurrected. See id.
at 180,450.
Hence, even if appellant had the authority to bring the July 2015 claim in the
first instance, it was denied on December 17, 2015, and not appealed within the statute
of limitations, and we would dismiss it on that ground if we reached it.
IV. Two Final Government Arguments
Two remaining government arguments remain to be addressed though, because
they are made largely obsolete by the decision above, we will address them in less
depth.
A. Appellant Would not Have Been Able to Advance its Allegation Regarding
Government Delays in Responding to its Submittals
The government has argued that we do not possess jurisdiction to consider
aspects of appellant’s complaint which touch upon allegations that the government
was late in responding to its contract submittals because that matter was not contained
in the July 2015 claim from which our jurisdiction would flow (if it had been properly
submitted) (see gov’t mot. at 22-24). Appellant does not dispute that an issue must be
a subject of a claim if it is to be a basis of appeal, but contends that the July 2014
“claim” was incorporated into the July 2015 claim (app. opp’n at 12-13). Appellant is
mistaken.
Although we affirmatively found that the 2015 claim was informed by the CO’s
rejection of the 2014 REA, the 2015 claim, in fact, made no reference to its
predecessor and, though we have carefully reviewed it, we have found nothing to alert
the reader that it was either adopting the arguments made in the first REA or that it
was making arguments about anything other than a differing site condition. The same
cannot be said for appellant’s complaint, which includes a single count alleging
“Uncompensated Change Orders,” which mentions the alleged differing site condition
almost in passing but speaks largely and vaguely about “impos[ing] new criteria on
Appellant for meeting the Contract’s requirements” (see compl. ¶¶ 21-29).
It is solidly established that an appellant cannot bring a new claim to the Board
that has not been presented to the CO for his or her consideration under the guise of
appealing a CO’s decision on a different claim. See, e.g., Relyant, LLC, ASBCA
No. 59809, 18-1 BCA ¶ 37,085, 180,534 (citing Scott Timber Co. v. United States,
333 F.3d 1358, 1365 (Fed. Cir. 2003)). And a claim is the same only if it relies on the
same operative facts and seeks the same or substantially the same relief. Id. As the
Federal Circuit explained in Lee’s Ford Dock, Inc. v. Dep’t of the Army, “Materially
different claims ‘will necessitate a focus on a different or unrelated set of operative
21
facts.’” 865 F.3d 1361, 1369 (Fed. Cir. 2017) (quoting Placeway Constr. Corp. v.
United States, 920 F.2d 903, 907 (Fed. Cir. 1990)). And a significantly different legal
theory (perhaps because it changes which facts are determinative), makes a matter
materially different than the claim presented to the contracting officer. Tolliver Grp.,
Inc. v. United States, 20 F.4th 771, 777 (Fed. Cir. 2021).
Here, any assertions of entitlement to relief that stray from the straightforward
differing site conditions allegations made in appellant’s July 2015 claim 25 are “new,”
relying as they do on a dramatically different legal theory and set of operative facts
and thus, would be disallowed if they had not already been dismissed as discussed
above. Appellant would, however, be permitted to proceed on its differing site
conditions allegations.
B. The Matter of Appellant’s Representation Before us
Last, the government has advanced the argument that counsel for appellant has
not proved that he represents B-U-Z because he purports to represent a slightly
differently named entity and that B-U-Z did not submit the claim in any event (see
gov’t mot. at 13). Appellant argues that its counsel was authorized by virtue of the
“settlement agreement” (app. opp’n at 9). In any event, we need not decide this issue
because we see no conceivable circumstance in the facts before us in which appellant
would otherwise be able to maintain this appeal, but counsel were to be disqualified.
CONCLUSION
For the foregoing reasons, we dismiss this appeal for lack of jurisdiction.
Dated: April 18, 2022
J. REID PROUTY
Administrative Judge
Vice Chairman
Armed Services Board
of Contract Appeals
(Signatures continued)
25
Of course, since the July 2014 REA never matured into a claim, its denial does not
provide a basis for this appeal.
22
I concur I concur
RICHARD SHACKLEFORED MICHAEL N. O’CONNELL
Administrative Judge Administrative Judge
Acting 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. 62846, Appeal of BCC-
UIProjects-ZAAZTC Team JV, rendered in conformance with the Board’s Charter.
Dated: April 19, 2022
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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