ANHAM FZCO

ARMED SERVICES BOARD OF CONTRACT APPEALS
Petition of - )
)
ANHAM FZCO ) ASBCA No. 63325-PET
)
Under Contract No. SPM300-20-D-4059 )
APPEARANCES FOR THE PETITIONER: Richard P. Rector, Esq.
Dawn E. Stern, Esq.
Christie M. Alvarez, Esq.
DLA Piper LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq.
DLA Chief Trial Attorney
Kelly L. Diaz-Albertini, Esq.
Lindsay A. Salamon, Esq.
Ryan P. Hallisey, Esq.
Robert L. Kieffer, Esq.
Trial Attorneys
DLA Troop Support
Philadelphia, PA
ORDER PURSUANT TO RULE 1(a)(5)
DIRECTING CONTRACTING OFFICER TO ISSUE DECISION
ANHAM FZCO (ANHAM or contractor) filed, under Rule 1(a)(5), a request for
an order directing the contracting officer (CO) to render a final decision (COFD) on a
March 21, 2022 claim, which was later revised and resubmitted to the DLA (DLA or
government) on April 6, 2022, for $34,025,193. ANHAM requested that the CO issue a
decision no later than August 8, 2022. The government has advised that a final decision
will be issued by April 20, 2023, nearly 13 months after the original claim was submitted
for a final decision. We find the government’s proposed date unreasonable and direct the
CO to issue a decision by December 16, 2022.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE PETITION
1. ANHAM entered into Contract No. SPM300-12-D-3571 in 2012 as a
subsistence prime vendor in Afghanistan. In 2020, a subsequent contract was awarded,
which extended the term of the fixed-price, commercial-item, Indefinite Delivery,
Indefinite Quantity (“IDIQ”) contract through April 2025. (Petition for COFD at 1; gov’t
resp. to petition at 1-2)
2. In April 2021, President Joseph Biden announced the withdrawal of U.S. troops
from Afghanistan (petition for COFD at 2; gov’t resp. to petition at 2).
3. In the months following the announcement regarding troop withdrawal,
ANHAM contacted the government to discuss what it believed was the “anticipated
termination of the Contract and the related costs of the termination” (petition for COFD
at 2). Although the parties held weekly calls, they could not agree on the continued
performance of the contract (gov’t resp. to petition at 2-3).
4. ANHAM ultimately requested the government terminate the contract for
convenience. The government declined and, letters dated June 8, 2021 and July 16, 2021,
informed ANHAM that it did not expect to terminate the contract. Instead, the
government expected to be able to place future orders, as necessary. (Gov’t resp. to
petition at 3; petition for COFD at 2)
5. On March 21, 2022, ANHAM submitted a certified claim, seeking $34,025,193
for damages it alleges it suffered because DLA breached the contract by failing to
acknowledge “the Contract’s constructive termination.” ANHAM requested the CO
contact ANHAM’s counsel to coordinate the delivery of the exhibits. ANHAM alleges
the government did not respond to obtain the exhibits. (Petition for COFD at 2)
6. ANHAM submitted a revised claim on April 6, 2022, which appellant states was
substantively the same, but better tied the claim to the submitted exhibits. The exhibits
were submitted on a compact disc with the revised claim. (Petition for COFD at 2) The
government does not dispute that the exhibits were attached to the revised claim.
7. On May 20, 2022, 60 days after the initial claim was submitted by ANHAM,
the government sent a letter indicating that it intended to issue a final decision by
April 20, 2023. The government’s letter stated, “[g]iven the volume and complexity of
the subject claim, coupled with the Contracting Officer’s other workload and the
additional ANHAM matters currently in litigation,” the government would not issue a
final decision until April 2023. The government expanded on the workload issue,
explaining that the CO “and her teams’ duties now include administration of the
Subsistence Prime Vendor contracts with performance in Europe” and that the CO “is
currently on extended leave through September 2022.” (Petition for COFD at ex. C)
8. The government’s response to the petition focuses on its need for more time on
the “size and complexity” of appellant’s claim (gov’t resp. to petition at 1). However, the
government also acknowledges the claim is only 20 pages with 17 exhibits (gov’t resp. to
petition at 2). In addition, the government does not mention the workload issues
discussed by the CO in her response to the claim.
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DECISION
When a CO receives a certified claim over $100,000, the Contract Disputes Act
(CDA), 41 U.S.C. §§ 7101-7109, requires that within sixty days of receipt of the claim,
the CO shall (a) issue a decision or (b) notify the contractor of the time within which a
decision will be issued. 41 U.S.C. § 7103(f)(2). The CDA also requires that the decision
of the CO on a contractor’s claim “be issued within a reasonable time...taking into account
such factors as the size and complexity of the claim and the adequacy of information in
support of the claim provided by the contractor.” 41 U.S.C. § 7103(f)(3). Further, “[a]
contractor may request the tribunal concerned to direct a contracting officer to issue a
decision in a specified period of time, as determined by the tribunal concerned, in the
event of undue delay on the part of the contracting officer.” 41 U.S.C. § 7103(f)(4).
Board Rule 1(a)(5) implements this section providing that “[i]n lieu of filing a notice of
appeal under paragraph (a)(1) or (a)(2) of this Rule, the contractor may petition the Board
to direct the contracting officer to issue a decision in a specified period of time as
determined by the Board.”
Whether the time in which a CO states he or she will issue a decision is reasonable
must be determined on a case-by-case basis. Eaton Contract Servs., Inc., ASBCA
Nos. 52686, 52796, 00-2 BCA ¶ 31,039 at 153,273-74 (finding eight months reasonable
given the volume of documentation, number of issues, and time needed to gather
information due to relocation of personnel); Defense Sys. Co., ASBCA No. 50534, 97-2
BCA ¶ 28,981 at 144,326 (finding nine months reasonable when claimed amount
exceeded $71 million and the narrative portion of the claim alone exceeded 162 pages);
Dillingham/ABB-SUSA, a Joint Venture, ASBCA Nos. 51195, 51197, 98-2 BCA ¶ 29,778at 147,557 (finding 14-16 months unreasonable for a small construction claim and an
impact claim that had been extensively analyzed and audited). While the government tries
to analogize the claim to those in Eaton and Defense Systems Co., we conclude that those
claims were more complex yet still required less time to issue a COFD than what the
government requested in this case. As such, while we do believe there is some complexity
to this case, it does not appear, on its face, to be so extraordinarily complex that it requires
additional time to assess.
Additionally, the government initially stated that a large part of the reason the CO
intends to issue a decision on or before April 20, 2023, is due to conflicts created by the
CO’s workload and other staffing issues, such as extended leave (SOF ¶ 7). However,
the Board has held that “internal staffing matters are not one of the factors used to
determine a reasonable time under the CDA.” Volmar Constr., Inc., ASBCA
No. 60710-910, 16-1 BCA ¶ 36,519 at 177,905-906 (citing Fru-Con Constr. Corp.,
ASBCA No. 53544, 02-1 BCA ¶ 31,729 (“finding the scarcity of attorneys to assist with
the review of a contracting officer’s final decision is a matter wholly and exclusively
within the control of the government”)).
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The contractor submitted the initial claim on March 21, 2022 (SOF ¶ 5). It then
revised and supplemented the claim on April 6, 2022, to include the exhibits it requested
the government coordinate for delivery with the first claim (SOF ¶ 6). On May 20, 2022,
the CO responded to ANHAM, stating that because of the claim’s complexity and internal
staffing issues, the CO may not issue a decision until April 20, 2023. After considering
the parties’ arguments, we conclude that the government’s requested COFD issuance date
on or before April 20, 2023, is unreasonable and represents undue delay. We also
conclude that the contractor’s request that the COFD issue no later than August 8, 2022, is
too short for a meaningful review of the claim. Therefore, we believe that a reasonable
time for the CO to issue a final decision is December 16, 2022.
CONCLUSION
The Board hereby directs the CO to issue a decision on the contractor’s claim by
December 16, 2022.
This Order completes all necessary action by the Board. If the contracting officer
fails to comply with this Order, such failure will be deemed a decision by the CO denying
the claim, and the contractor may appeal to this Board or sue in the United States Court of
Federal Claims pursuant to the Contract Disputes Act, 41 U.S.C. §§ 7103(f)(5) and 7104.
Dated: August 19, 2022
JOHN J. THRASHER
Administrative Judge
Chairman
Armed Services Board
of Contract Appeals
I concur I concur
RICHARD SHACKLEFORD OWEN C. WILSON
Administrative Judge Administrative Judge
Vice 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 Order Pursuant to Rule 1(a)(5) of
the Armed Services Board of Contract Appeals in ASBCA No. 63325-PET, Petition of
ANHAM FZCO, rendered in conformance with the Board’s Charter.
Dated: August 22, 2022
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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