Arab Shah Construction Company

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of-- )
)
Arab Shah Construction Company ) ASBCA No. 60553)
Under Contract No. H92237-11-C-0639 )
APPEARANCE FOR THE APPELLANT: Mr. Mohammad Edress
President
APPEARANCES FOR THE GOVERNMENT: Col Matthew J. Mulbarger, USAF
Air Force Chief Trial Attorney
Gregory A. Harding, Esq.
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE TING ON THE
GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION
Arab Shah Construction Company (appellant) filed a notice of appeal seeking
compensation under a contract awarded and performed in Afghanistan. Because no
proper Contract Disputes Act claim was filed with the contracting officer (CO), we
dismiss the appeal for lack of jurisdiction.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. In March 2011, Appellant was awarded a contract for $62,000 to construct a
metal pole barn in the village of Mangwal, *Afghanistan (R4, tab 1).
2. By email dated 23 May 2011 at 3:35 PM, the CO, SSgt Aaron Waltersdorff,
informed appellant that the pole barn was no longer needed at Mangwal, but "[i]fyou
can keep the same price [I] will send you a modification to change the location [to
Gardez] and then you can keep this contract" (R4, tabs 2, 7).
3. Appellant responded that same day at 3 :40 PM with "[ o]kay no problem [I]
want to be fair with us we have delivered our team and [materials] to Mangwell now we
have return them to Gardez it cost us more money." The email string also includes
conversations between appellant and the CO referencing other contracts between the
parties. (R4, tab 7) (Syntax in original)
* As the file contains numerous variations on the spelling of this village, we note the
correct spelling is Mangwal.
4. Later that same day, 23 May 2011, the parties executed Modification
No. POOOO 1, changing the location for the pole barn from Mangwal to the village of
Gardez, Afghanistan. The bilateral modification confirmed that the purpose of the
modification was to change the location where the work would be performed and stated,
"All other terms and conditions remain unchanged." (R4, tab 3)
5. A receipt dated 26 May 2011 indicates appellant paid $19 ,000 to American
Alliance Logistic Services. The comments section of the invoice reads:
Transportation of Materials from Mangwel to Gardez Paktia
ONLY.
The prime contractor is Arab Shah Construction Co, per our
regulation, our company received advance payment for the
transportation.
The description category on the invoice states: "Transportation of materials from Mangwel
to Gardez Paktia Date of delivery 27 May 2011 or per KO, COR order." (R4, tab 8)
6. A pay voucher indicates appellant was paid $62,224.09 on 22 September
2011, $62,000.00 contract amount plus $224.09 in interest (R4, tab 4).
7. Appellant filed an undated notice of appeal received by the Board on 22 April
2016, alleging that it "never got the payment for the services yet, we did deliver the
materials and all the equipments to the site." The Board docketed the appeal as ASBCA
No. 60553.
8. On 17 May 2016, the government moved to dismiss the appeal for lack of
jurisdiction because appellant never submitted a claim in a sum certain to a CO.
9. Appellant responded to the motion by email dated 11 June 2016, attaching a
letter already sent to government counsel stating "We did provide modification show the
location of project is change of after the delivery of materials, so it is strong proof show
we did expend money for the delivery of materials from one location to other location."
No copies of correspondence between appellant and the CO accompanied the response.
10. In an email dated 23 June 2016, the Board was copied on correspondence
between the parties which indicated appellant was seeking payment for $19,000 in
transportation costs due to the change in performance location (Bd. corr. file, email ASBCA No. 58394,
13 BCA ii 35,278 at 173,157-58 (citing Engineered Demolition, Inc., ASBCA
No. 54924, 06-1BCAii33,125 at 164,151).
Appellant, as the proponent of the Board's jurisdiction, must establish that it
submitted a written claim for payment to the CO. United Healthcare Partners, Inc.,
ASBCA No. 58123, 13 BCA ii 35,277 at 173,156. Although the CDA does not define
the term "claim," it is defined in the Federal Acquisition Regulation (FAR) 2.101:
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.
There is no requirement that a "claim" be submitted in any particular form or
with any particular words, but it must be in writing and provided to a CO, with "clear
and unequivocal statement[s] that give the [CO] adequate notice of the basis and amount
of the claim." Contract Cleaning Maintenance, Inc. v. United States, 811F.2d586, 592
(Fed. Cir. 1987).
In correspondence between the parties, it appears that appellant is seeking
payment not for its work in providing the pole barn in question, but for equipment
transportation costs due to the performance location change (SOF ii 10). Appellant
provided an invoice indicating it paid $19 ,000 for transportation of materials from
Mangwal to Gardez Paktia (SOF ~ 5), but there is no evidence that the invoice or any
request for payment of this amount was ever presented to the CO.
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Appellant also provided an email from the CO to appellant stating "I will pay
your transportation and Escort Cost Send me your bill," but the email date and time
indicate it was sent 23 May 2011 at 4: 13 AM (SOF i! 10), in the morning before the
afternoon email conversations about changing the location of the pole barn (SOF i!il 2,
3). The email contains no explanation indicating which transportation and escort costs
were being discussed, nor is there correspondence in the record indicating any follow up
by appellant to the CO regarding these costs. While an invoice once submitted to the
CO for payment may be converted into a claim, see FAR 2.101, nothing here indicates
that appellant ever presented an invoice for transportation charges to the CO.
There is no evidence that a claim in any form was presented to the CO for
consideration. Such failure is fatal to our jurisdiction.
Under 41 U.S.C. § 7103(f)(l), the CO is required to issue a decision on any
submitted claim of $100,000 or less within 60 days from receipt of the claim. Should
the CO fail to issue a decision within the required time period, 41 U.S.C. § 7103(£)(5)
authorizes an appeal to the Board on a "deemed" denied basis. If appellant disagrees
with the CO's decision, it has 90 days from the date of receipt of the decision to appeal
to this Board. 41 U.S.C. § 7104(a). Alternatively, it has 12 months from receipt of the
CO decision to bring an action in the United States Court of Federal Claims.
41 u.s.c. §7104(b)(l), (3).
To promote informal, expeditious, and inexpensive resolution of disputes,
41 U.S.C. § 7105(g)(l), government counsel is to furnish appellant the name and
address of the current CO as soon as he receives this decision.
CONCLUSION
Arab Shah Construction Company may submit a claim in a sum certain amount to
the CO. As it now stands, the appeal is dismissed for lack of jurisdiction.
Dated: 4 August 2016
·~C> -0--C-
PETER D. TING
Administrative Judge
Armed Services Board
of Contract Appeals
(Signatures continued)
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I concur I concur
.&?7``HH
MARK N. STEMPLER RICHARD SHACKLEFORD
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 60553, Appeal of Arab Shah
Construction Company, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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