Sang Kash Company ( 2020 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Sang Kash Company ) ASBCA No. 62148
)
Under Contract No. W91B4N-15-D-8013 )
APPEARANCE FOR THE APPELLANT: Mr. Abdul Bari
President
APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq.
Army Chief Trial Attorney
Harry M. Parent III, Esq.
MAJ Stephen M. Hernandez, JA
Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE WOODROW
ON THE GOVERNMENT'S MOTION TO DISMISS
PURSUANT TO BOARD RULE 12.3
Appellant elected the Board's accelerated procedure under Rule 12.3 for appeals
under $100,000. Subsequent to that election, the government filed a motion to dismiss
the above-captioned appeal contending that it is either: ( 1) an untimely motion for
reconsideration; (2) a duplicate appeal that should be barred by the doctrine of
res judicata; or (3) a new appeal in which appellant has failed to present any evidence
that it submitted a claim to the contracting officer for a final decision. For the reasons
stated below, we dismiss the appeal.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. In an opinion dated June 11, 2019, we upheld the government's termination for
default. Sang Kash Co., ASBCA No. 60532, 19-1 BCA ,i 37,373. Familiarity with the
facts in that appeal is presumed.
2. On July 8, 2015, the Army (Army or government) awarded Contact
No. W91B4N-l5-D-80l3 (the contract) to Sang Kash Company (Sang Kash, appellant).
Id. at 181,700. The contract was an indefinite delivery/indefinite quantity (IDIQ)
contract to obtain bulk concrete for Bagram Airfield, Parwan Province, Afghanistan, with
no guaranteed minimum quantity. Id.
3. On March 29, 2016, pursuant to Federal Acquisition Regulation (FAR) 52.249-10,
Default, the Army contracting officer (CO) terminated the contract and its task orders for
"[v]iolation of Contract Clause 5152.225-5916 Mandatory Eligibility for Base Access." Id.
at 181,701. The contracting officer's final decision (COFD) included the standard appeal
rights set forth at FAR 33.21 l(a)(4)(v), CONTRACTING OFFICERS DECISION. Id. The
modification was countersigned as being received by Sang Kash's representative. Id.
4. On April 13, 2016, Sang Kash challenged the termination for default and
appealed the COFD to the Board, docketed as ASBCA No. 60532. Id.
5. On May 10, 2016, the Commander ofBagram Airfield denied appellant's
request for reconsideration of its denial of base access. Id.
6. Nearly three years later, on April 20, 2019, appellant allegedly sent a letter
which purports to be the appeal of a claim "to reimburse for our quantum claim to cover
our expenses which we maintain the project operational and functional [sic]." According
to the letter, it was sent to the attention of"Agency [B]oard of [C]ontract [A]ppeals [at]
Regional Contracting Center - East" in Bagram, Afghanistan. (Bd. corr. ltr. dtd.
August 20, 2019 at 2)
7. In a decision dated June 11, 2019, we upheld the government's termination for
default. Sang Kash Co., 19-1 BCA ,-r 37,373.
8. On August 20, 2019, appellant transmitted its April 20, 2019 letter directly to the
Board's Recorder via email. The Board docketed it as ASBCA No. 62148. Appellant's
transmittal email states:
[W]e appeal to reimburse for our quantum claim to cover our
expenses which we maintain the project operational and
functional. [W]e informed the contracting department upon
termination but we did not received direction how to submit
claim and to whom. [B]ut recently we understand from
another ASBCA that we can submit our claim within six
years from termination. Recently I contacted contracting
officer but he did not give response, therefore we appeal to
[the] [b]oard.
(Bd. corr. ltr. dtd. August 20, 2019 at 1)
9. On September 15, 2019, Sang Kash filed its complaint in ASBCA No. 62148.
The complaint contains an "expenses report summary" setting forth alleged costs
associated with the termination of Task Order Nos. 0007, 0009, and the base contract.
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The costs include salary for onsite personnel and equipment rental for the months prior to
the termination for default on March 29, 2016. In summary, Sang Kash claims the
following costs:
Base Contract $79,300.00
Task Order No. 0009 $14,080.00
Task Order No. 0007 $2,700.00
Total Claim $96,080.00
(Compl. at 2)
10. On September 24, 2019, the government filed a motion to dismiss ASBCA
No. 62148, and, on October 3, 2019, Sang Kash filed its response to the government's
motion to dismiss.
11. In its complaint, Sang Kash elected to proceed under Board Rule 12.3.
(compl. at 1).
DISCUSSION
I. CONTENTIONS OF THE PARTIES
Pending before us is the government's motion to dismiss. In support, the
government raises three alternative grounds for dismissal. First, the government
contends that the appeal is an untimely motion for reconsideration of our June 11,
2019 decision. Second, the government contends that the appeal is a duplicate appeal
of the appeal denied in ASBCA No. 60532, and should be dismissed pursuant to the
doctrine of res judicata. Third, the government contends that, to the extent that the
appeal is considered a new appeal, it is outside the Board's jurisdiction, because appellant
has failed to present any evidence of a separate claim being submitted to the contracting
officer. (Gov't mot. at 2-3)
In response, Sang Kash contends that it is not seeking reconsideration of its
original appeal, but instead is filing a new appeal. According to Sang Kash, its new
appeal is not duplicative of its original appeal, because the original appeal sought only to
convert the termination for default into a termination for convenience. The new appeal,
in contrast, is for unpaid expenses which Sang Kash allegedly incurred during the course
of contract. (App. resp. at 3)
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With respect to the timeliness of its appeal, Sang Kash maintains that it sent
several emails to the contracting office at Bagram Air Base, but did not receive any
responses. Sang Kash cites Europe Asia Construction Logistics, ASBCA No. 61553,
19-1BCA137,267, for the proposition that a contractor can submit a quantum claim
within six years of the contracting officer's final decision, and that Sang Kash submitted
its claim within six years of the March 29, 2016 COFD. (App. resp. at 3)
DECISION
Untimely Motion for Reconsideration
We agree with Sang Kash that this appeal is not the same appeal as its previous
appeal of the government's termination for default. We also agree that this appeal does
not seek reconsideration of our June 2019 decision upholding the government's
termination for default, but, instead, seeks recovery of costs incurred prior to the
termination. Accordingly, the government's contention that appellant's filing is an
untimely motion for reconsideration is without merit.
Res Judicata
This appeal is not barred by the doctrine of res judicata. Res judicata applies
when ( 1) the parties are identical or in privity, (2) the first suit proceeded to a final
judgment on the merits, and (3) the second claim is based on the same set of transactional
facts as the first. Phillips/May Corp. v. United States, 524 F.3d 1264, 1268 (Fed. Cir.
2008). Although this appeal involves the same parties and the same contract, it is not
based on the same set of transactional facts as the first appeal.
The first appeal turned on the question of whether Sang Kash met the contractual
requirement of maintaining its base access privileges to Bagram Airfield, Afghanistan.
We held that, because the Senior Commander ofBagram Airfield revoked appellant's
base access, the CO was justified in terminating appellant's contract for default. Sang
Kash Co., 19-1BCA137,373 at 181,703-04. In contrast, in this appeal Sang Kash seeks
recovery of costs allegedly incurred prior to the termination for default. According to the
complaint, such costs include salary for onsite personnel and equipment rental for the
months prior to the termination for default on March 29, 2016 (SOF 19).
We previously have held that res judicata does not prevent a contractor from
bringing a monetary claim while challenging a default termination. In ADT Construction
Group, Inc., we held that the doctrine of res judicata did not bar a contractor from
seeking compensation for delays during the design stage of a project, while
simultaneously challenging the government's termination of its contract for default.
ASBCA No. 57322, 15-1BCA135,893 at 175,470-71. In that appeal, we reasoned that
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the contractor's quantum claim placed the burden of proof on different parties, involved
different legal standards, and involved a different set of facts. Id. The same reasoning
applies in this appeal.
No Claim Submitted to the Contracting Officer
Although the government's first two arguments in favor of dismissal failed, we
must, however, dismiss this appeal on different grounds. Specifically, appellant's notice
of appeal to the Board does not include any evidence that it first submitted its monetary
claim to the contracting officer.
Sang Kash's April 20, 2019 letter, which it purportedly transmitted to the "Agency
[B]oard of [C]ontract [A]ppeals [at] Regional Contracting Center - East" in Bagram,
Afghanistan, does not constitute a "claim" to the CO (SOF ,r 6). Sang Kash has produced
no evidence that its April 20, 2019, letter was received by the CO at Bagram Airfield,
Afghanistan. However, even ifwe assume that it was, the April 20, 2019 letter does not
constitute a claim pursuant to FAR 2.101.
FAR 2.101 defines "claim," in relevant part, as "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." Sang Kash's April 2019 letter contains only a reference to a
"quantum claim to cover our expenses which we maintain the project operational and
functional." The letter contains no dollar figure, nor any other information fr0m which a
dollar figure could be calculated. The letter states "[r]ecently I submit our Claim but the
contracting officer did not give response, therefore we appeal to board." (SOF ,r 8)
However, Sang Kash provided no copy of its purported claim with its letter.
Sang Kash' s re-transmission of its April 2019 letter to the Board does not cure the
jurisdictional defect. Sang Kash's August 20, 2019 email transmitting the April 20 letter
contains only a statement that "we appeal to reimburse for our quantum claim to cover
our expenses which we maintain the project operational and functional" (id.). It does not
set forth a dollar figure, or provide any detail regarding the amount or nature of the
expenses incurred to maintain the project as "operational and functional." Moreover, it
does not include a copy of the purported claim.
Finally, Sang Kash's complaint-which contains an "expenses report summary"
setting forth alleged costs associated with the termination of the contract and associated
task orders - does not satisfy the statutory requirement of a claim, because it was not first
provided to the CO. See KBAJ Enters., LLC, ASBCA No. 60014, 16-1 BCA ,r 36,570
at 178, 115-16 (holding that claim must be submitted to the contracting officer).
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Pursuant to 41 U.S.C. § 7103(a)(4)(A), Sang Kash has six years after the accrual
of its claim to present its monetary claim to the CO. Sikorsky Aircraft Corp. v. United
States, 773 F.3d 1315, 1320 (Fed. Cir. 2014). Although the Contract Disputes Act does
not define the term "accrual," the FAR defines "accrual of a claim" as "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." FAR 33.201. In this
appeal, Sang Kash knew, or should have known, of its monetary claim when the CO
issued her final decision on March 29, 2016. Therefore, Sang Kash has until March 29,
2022, to present its monetary claim to the CO. Its claim must meet the requirements of
FAR 2.101, in that it must set forth "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."
We expect counsel for the government to work cooperatively with appellant to facilitate
the transmission of appellant's claim to the CO.
In summary, because Sang Kash has provided no evidence that it has submitted its
monetary claim to the CO for a decision, we do not possess jurisdiction to entertain the
appeal.
CONCLUSION
Accordingly, the appeal is dismissed without prejudice.
Dated: March 9, 2020
Administrative Judge
Armed Services Board
of Contract Appeals
I concur
Administrative Judge
Vice Chairman
Armed Services Board
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. 62148, Appeal of Sang Kash
Company, rendered in conformance with the Board's Charter.
Dated:
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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