Bahram Malikzada Construction Co.
Docket: ASBCA 59613, ASBCA 59614
Decision date: 2015-10-08

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of -- ) 
) 
Bahram Malikzada Construction Co. ) 
) 
Under Contract Nos. W9IB4N-IO-C-8182 ) 
W91B4N-10-C-8183 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 59613, 59614 
R. Michael Smith, Esq. 
Bowie & Jensen, LLC 
Towson, MD 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
MAJ James P. Leary, JA 
Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE YOUNGER 
ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION 
The government moves to dismiss these appeals for lack of jurisdiction, 
contending that appellant, Bahram Malikzada Construction Co. (BMCC), failed to file a 
notice of appeal within 90 days of receipt of the contracting officer's final decision as 
required by the Contract Disputes Act, 41 U.S.C. § 7104(a). BMCC opposes. We grant 
the motion and dismiss the appeals. 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
1. On 8 June 2010, the United States Joint Contracting Command-Iraq/Afghanistan, 
Bagram Regional Contracting Center (the government) awarded Contract 
No. W91B4N-10-C-8I82 (the 8I82 contract) to BMCC for the construction of Bravo Kandak 
Headquarters Building I on Bagram Airfield, Afghanistan (R4, tab I). The government 
subsequently awarded Contract No. W9IB4N-IO-C-8I83 (the 8I83 contract) to BMCC for the 
construction of Bravo Kandak Headquarters Building 2 on I I June 20IO (R4, tab 2). Both the 
8 
I 82 and 8 I 83 contracts incorporated numerous standard Federal Acquisition Regulation (FAR) 
clauses, including FAR 52.233-I, DISPUTES (JUL 2002) and FAR 52.249-IO, DEFAULT 
(FIXED-PRICE CONSTRUCTION) (APR I984) (R4, tab I at I5, tab 2 at I4). 
2. On 29 November 20IO, contracting officer Daniel R. Tatro issued two 
contracting officer's final decisions, 1 terminating both the 8 I 82 and 8 I 83 contracts for 
1 These decisions contained incorrect appeal rights. 

default (R4, tabs 24, 25). The contracting officer subsequently issued unilateral 
modifications reflecting the default terminations on 2 January 2011 (R4, tabs 26, 27). 
3. The record also contains two final decisions 
by contracting officer 
MAJ Michael Washington, both dated 14 July 2012, denying BMCC's "claim[s] for 
additional payment" under the 8182 and 8183 contracts (R4, tab 30 at 2-3, tab 31at2-3). 
The final decisions were provided to BMCC by emails dated 7 August 2012 (R4, tab 30 at 1, 
tab 31 at 1 ). The claims in response to which the contracting officer issued the decisions are 
not in the record. Contracting officer Washington determined that the 8182 and 8183 
contracts were properly terminated and that BMCC was not entitled to additional 
compensation (R4, tab 30 at 
3, tab 31 at 3). Neither final decision, however, provided any 
information regarding BMCC's right to appeal. 
4. Following contracting officer Washington's final decisions, BMCC continued 
to seek payment under the 8182 and 8183 contracts (see R4, tabs 34-39). By email dated 
24 May 2013, Lt Col Matthew A. Sinning, USAF, Chief, Regional Contracting 
Center-East, instructed BMCC 
to: "Please submit your claim and all associated 
documentation to MAJ Locklear. He will be the contracting officer for this action." (R4, 
tab 40) BMCC responded the same day, with a copy to contracting officer James T. 
Locklear, "I would kindly requ[e]st for termination for convience [sic] to be issued and 
will get back to you ASAP on Certified filled Calims [sic]" (id.). 
5. BMCC submitted two documents to the government, each titled "Actual Bill of 
Quantities Completed as Per Site," seeking $286, 139 under the 8182 contract and 
$243,534 under the 8183 contract (R4, tabs 42, 44). BMCC provided these documents to 
Col Glen E. Christensen, USAF, on 7 June 2013, which were forwarded to contracting 
officer Locklear on 8 June 2013 (R4, tabs 41, 43). On 8 June 2013, contracting officer 
Locklear directed BMCC to provide a certification and supporting 
documentation for its 
claims (R4, tab 45 at 1-2). 
6. The record contains an undated BMCC document titled "Claim Certification 
and Support Documents" (R4, tab 51 ). This submission contained a Contract Disputes 
Act certification pursuant to 41 U.S.C. § 7103(b), signed by BMCC's president, 
Ziaulhaq Malikzada, which certified BMCC's claim for $286,139 under the 8182 
contract and for $243,534 under the 8183 contract, a total of $529,673 (id. at 2). This 
submission also provided copies of various invoices and other documents to support its 
claims (id. at 3-55). 
7. Contracting officer Locklear issued a 25 September 2013 final decision in 
response to a "Certified Claim Submitted by BMCC," seeking $529,673 under the 8182 
and 8183 contracts. In the final decision, the contracting officer denied BMCC's claim in 
its entirety. The contracting officer's decision advised BMCC that: 
2 

This is the final decision of the Contracting Officer. You 
may appeal this decision to the agency board of contract 
appeals. If you decide to appeal, you must, within 90 days 
from the date you receive this decision, mail or otherwise 
furnish written notice to the agency board of contract appeals 
and provide a copy to the Contracting Officer from whose 
decision this appeal is taken. 
The final decision also advised BMCC of its right to bring an action in the United States 
Court of Federal Claims within 12 months of receipt in lieu of appealing to the Board. 
(R4, tab 48 at 4) The contracting officer provided a copy of his decision to BMCC by 
email dated 25 September 2013 (R4, tab 4 7). 
8. In a 27 September 2013 email, BMCC responded to contracting officer 
Locklear as follows: 
This is the acknowledgement of your poor decision, and you 
field [sic] to make reasonable decision, my claim's will 
remain as it is, and with the Evidence that I have for a LAW 
Suit, will start my Appeal, your senior contracting officer 
visited the factory and physically Tasted the Pre-cast wall and 
I have proof that he verify and I have recorded Voice 
approval,. and will prove that these wall were pre-casted back 
in 2010, As a local contractor and throw out my long history I 
have had business with the U.S. Government, I been always 
reliable and honest to the U.S Military, In return No one 
would consider 
my problem and threats which me and my 
family is facing with, the amount for these claims are not 
affordable to be paid from my family, like i say i have more 
than these claims and will presume to supreme Court of 
U.S.A. 
Thank you for making my day. 
(R4, tab 49 at 1) (Syntax in original) 
9. A 16 December 2013 email from the government to BMCC provided, in 
pertinent part: "Captain Arizala is from the Contracting Office here on Bagram Airfield. 
Captain Arizala is willing to inform you of how the appeals process will work and set up 
a 
meeting." (R4, tab 50 at 1) BMCC emailed Captain Arizala on 17 December 2013, 
with copy to other government officials, thanking him for his effort "to assist BMCC 
[through] our long 
lasting dispute" and noting that "we [BMCC] are trying to find the 
right chain of command to appeal in order to recover our los[s] and as an [A]fghan 
3 

company based in Afghanistan we are unable to appeal [through] the US legal system ... " 
(id. at 2). The government's 17 December 2013 email reply to BMCC stated: 
There is no need for a meeting, you have been informed that 
this issue has been addressed by the RCC [Regional 
Contracting Center] and this matter is now closed. If you 
don't agree with the final decision of the contracting officer, 
you are more than welcome to contact the Armed Services 
Board of Contract Appeals. 
(Id. at 3) The government's 17 December 2013 email then proceeded to provide BMCC 
the contact information for this Board, including both the Board's email address and the 
mailing address for the Board's offices in Northern Virginia (id.). 
10. In March 2014, Mr. Malikzada protested contracting officer Locklear's final 
decision by blocking a gate at Bagram Airfield (app. opp'n, Malikzada decl. if 15). 
Following this incident, on 20 March 2014, lLT Joseph Krebsbach emailed 
Ms. Mamie Gustavson noting that Mr. Malikzada had "a complaint regarding payment on 
a contract for work that occurred in 201 O" and stating that he and his supervisor would 
"be more than happy to assist anyone in making a claim, showing them the correct 
channels through which to do so." lLT Krebsbach contacted Ms. Gustavson because 
Mr. Malikzada "spoke highly of you, and indicated that he has a close relationship with 
you," and hoped that Ms. Gustavson would relay his message to Mr. Malikzada. (App. 
opp'n, Gustavson decl., ex. 1at2) Ms. Gustavson's 20 March 2014 email reply stated 
that BMCC had "been through this particular process a 
number of time and has even been 
told to go to Virginia to file a lawsuit." Ms. Gustavson further stated that BMCC was 
moving to using political pressure to get compensated and that she had requested that the 
Special Inspector General for Afghanistan Reconstruction open an investigation into the 
matter. (App. opp'n, Gustavson decl., ex. 1 at 1-2) 
11. On 6 October 2014, the Board received a letter, dated 22 September 2014 and 
postmarked 25 September 2014, titled "Subject: Bahram Malikzada Construction 
Company (BMCC) Appeal," 
along with numerous attachments. BMCC's 22 September 
2014 letter directly addressed many of the paragraphs in contracting officer Locklear' s 
25 September 2013 final decision, and requested that the Board reverse the default 
terminations and award it $415,568.40 
under the 8182 and 8183 contracts. The Board 
docketed BMCC's 22 September 2014 letter as two appeals, one under each contract. 
4 

DECISION 
The government moves to dismiss these appeals for lack of jurisdiction, arguing 
that BMCC's 22 September 2014 letter (see statement 11) was not filed within the 90-day 
period prescribed by the Contract Disputes Act, 41 U.S.C. § 7104(a) (gov't mot. at 6-7). 
In opposition, BMCC does not contend that its 22 September 2014 letter was a timely 
notice of appeal. Rather, relying upon this Board's misdirected appeal cases, BMCC 
asserts that its 27 September 2013 email to contracting officer Locklear provides a basis 
for the Board's jurisdiction over these appeals (app. opp'n at 7-9). The government 
responds that the 27 September 2013 email fails to provide a basis for the Board's 
jurisdiction because BMCC failed to make an election of forum (gov't reply at 4-6). 
Under the Contract Disputes Act, a contractor may appeal a contracting officer's 
decision to an agency board of contract appeals within 90 days of receipt of the decision. 
41 U.S.C. § 7104(a); Creek Services, LLC, ASBCA No. 59127, 14-1 BCA ii 35,648 at 
174,554; Alnawars Co., ASBCA No. 58678, 13 BCA ii 35,463 at 173,909. The timely 
filing of an appeal within the 90-day statutory period is jurisdictional and cannot be 
waived. Cosmic Construction Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir. 
1982); Waterstone Environmental Hydrology & Engineering, Inc., ASBCA No. 57557, 
12-1BCAii35,028 at 172,141-42; Dick Pacific/GHEMM JV, ASBCA Nos. 55562, 
55563, 07-1BCAii33,469 at 165,920. 
We have long held that filing an appeal with the contracting officer is tantamount to 
filing an appeal with the Board. Ft. McCoy Shipping & Services, ASBCA No. 58673, 
13 BCA ii 35,429 at 173,795; Mass. Microwave Tube & Device Corp., ASBCA No. 52020, 
99-1BCAii30,350 at 150,100; I.TS. Corp., ASBCA No. 31993, 86-1BCAii18,678 at 
93,927. An otherwise sufficient notice of appeal filed with the contracting officer rather 
than the Board, and furnished within the 90-day appeal period, is a valid notice of appeal. 
JWA Emadel Enterprises, Inc., ASBCA No. 51016, 98-2 BCA ii 29,765 at 147,503. To be 
an effective notice of appeal, a writing filed within the requisite time period must express 
dissatisfaction with the contracting officer's decision and indicate an intention to appeal the 
decision to a higher authority. Ft. McCoy, 13 BCA ii 35,429 at 173,794; ESA 
Environmental Specialists, Inc., ASBCA No. 55620, 07-1BCAii33,573 at 166,312. 
This Board, however, is not the only forum for challenging a contracting officer's 
decision. The Contract Disputes Act provides that in lieu of filing an appeal with this 
Board, a contractor may bring an action directly in the United States Court of Federal 
Claims within 12 months of receipt of a contracting officer's decision. 41 U.S.C. 
§ 7104(b )( 1 ), (3 ). Once a contractor makes an election to challenge the contracting 
officer's decision in one forum, the contractor can no longer pursue its claim in the other 
forum. Bonneville Associates v. United States, 43 F.3d 649, 653 (Fed. Cir. 1994). 
Accordingly, for this Board's jurisdiction to attach, a contractor's communication with 
the contracting officer must express an election to appeal to this Board. Stewart-Thomas 
5 

Industries, Inc., ASBCA No. 38773, 90-1BCA~22,481 at 112,835-36; see also Maria 
Lochbrunner, ASBCA Nos. 57235, 57236, 11-2 BCA ~ 34,783 at 171,186; 
Environmental Safety Consultants, Inc., ASBCA No. 54995, 06-1 BCA ~ 33,230 at 
164,666; Wach-und Werkschutz Kleve-Bocholt GmbH, ASBCA No. 41651, 91-2 BCA 
~ 23,862 at 119,553. We have inferred such an intent to appeal to this Board where a 
contractor's communication to the contracting officer uses the term "appeal." Mass. 
Microwave, 99-1 BCA ~ 30,350 at 150,100 (noting that the Contract Disputes Act "does 
not use the term 'appeal' for proceedings in the [Court of Federal Claims]"); 
McNamara-Lunz Vans & Warehouses, Inc., ASBCA No. 38057, 89-2 BCA ~ 21,636 at 
108,856 (noting that the contracting officer's decision "advised the contractor that it 
could 'appeal' to this Board or 'bring an action' in the U.S. Claims Court") (emphasis in 
original); see also Axxon Int'!, LLC, ASBCA Nos. 59497, 59498, 15-1 BCA ~ 35,864 at 
175,342 (finding that a contractor's letter was an effective notice of appeal where the 
letter stated that it was "an appeal of the wrongful termination"). However, we have also 
stated that we will not retroactively attach to correspondence the requisite intent to appeal 
to the Board where a review of the record demonstrates that such intent was lacking when 
submitted. AIW-Alton, Inc., ASBCA No. 46917, 94-3 BCA ~ 27,279 at 135,904-05; 
Oconto Electric, Inc., ASBCA No. 36789, 88-3 BCA ~ 21,188 at 106,939, ajf'd, 884 F.2d 
1399 (Fed. Cir. 1989) (unpublished table decision). 
We conclude that BMCC's 27 September 2013 email to the contracting officer 
(see statement 8) does not constitute an effective notice of appeal. Although BMCC 
stated that it "will start [its] Appeal" (statement 8), the record does not reflect an intent by 
BMCC to appeal to this Board through that email. BMCC's 17 December 2013 email to 
the government stated that it could not appeal through the "US legal system," indicating 
that BMCC was attempting to resolve the matter locally (statement 9). Although the 
government's 17 December 2013 response noted that the matter was closed by the 
Regional Contracting Center, stated that BMCC could contact this Board if it did not 
agree with contracting officer Locklear's final decision, and provided BMCC with this 
Board's contact information (statement 9), BMCC did not contact this Board until nine 
months later with its 22 September 2014 letter. The record reflects that in the meantime 
BMCC continued to seek compensation through local channels in Afghanistan 
(statement 10). Based on this record, we cannot attribute an intent to appeal to this Board 
to BMCC's 27 September 2013 email. 
As we stated in Oconto, "[ w ]hile the Board historically has interpreted 
contractors' communications liberally in determining whether an intent to appeal exists, 
the record reasonably must demonstrate an intent to appeal to the Board in order for our 
jurisdiction to attach." 88-3 BCA ~ 21,188 at 106,939. BMCC's 27 September 2013 
email was not an effective notice of appeal because the record does not demonstrate that 
BMCC had the requisite intent to appeal to this Board. BMCC's 22 September 2014 
letter was filed outside 
the prescribed 90-day appeal period. Absent a timely notice of 
appeal, we lack jurisdiction to consider these appeals. 
6 

CONCLUSION 
The government's motion to dismiss for lack of jurisdiction is granted. The 
appeals are dismissed. 
Dated: 8 October 2015 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
RICHARD SHACKLEFORD 
Administrative Judge 
Vice Chairman 
Armed Services Board 
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 Nos. 59613, 59614, Appeals of 
Bahram Malikzada Construction Co., rendered in conformance with the Board's Charter. 
Dated: 
7 
JEFFREY D. GARDIN 
R.ecorder, Armed Services 
Board of Contract Appeals