ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of

-- ) ) Smart Construction & Engineering Co. ) ASBCANo. 59354 ) Under ContractNo. W91B4L-10-P-0959 ) APPEARANCE FORTHE APPELLANT: Tracey Grooms APPEARANCES FORTHE GOVERNMENT: Raymond M. Saunders, Esq. Army ChiefTrial Attorney MAJ Cameron R. Edlefsen, JA

Trial Attorney OPINION BYADMINISTRATIVE JUDGE MCILMAIL REGARDING ORDERTO SHOW CAUSE, AND REGARDING GOVERNMENT'S MOTIONS TO DISMISS INTRODUCTION The government has filed motions to dismiss the appeal for lack ofstanding, and for lack of jurisdiction. Appellant, Smart Construction & Engineering Co. (SCE), opposes the motion to dismiss for lack ofstanding, but has not responded to the motion to dismiss for lack of jurisdiction. We grant the former motion and dismiss the appeal, withoutprejudice. We dismiss the motion to dismiss for lack of jurisdiction as moot. FINDINGS OF FACT On 5 June 2014, a "Tracey Grooms" filed with the Boardthe notice ofthis appeal. The appeal is from a 4 June 2014 contracting officer's denial ofa request for payment of$189,822.08 pursuant to ContractNo. W91B4L-10-P-0959 (notice of appeal, attachs. 2-3). The request was accompanied by a "Claim Certification" signed by "Manager, TRACEY GROOMS" (id., attach. 4). On 17 June 2014, the government moved to dismiss the appeal without prejudice for "lack ofstanding," citing former BoardRule 26 (now Board Rule 15(a)) regarding the representation ofan appellant, contending that Tracey Grooms was not a corporate officer or employee ofappellant. We regard the motion as challenging not standing, but whether appellant's representative meets the requirements ofBoard Rule 15.Exhibit 2 to the motion is the 17 June 2014 declaration ofFahdA.R. Soufan, who declares underpenalty ofperjury, under a captionreferencing bothASBCA No. 59354 and ContractNo. W91B4L-10-P-0959, that he is the ChiefExecutive Officer and owner ofSCE, andthat: It cameto my attention that a former employee, Mr. Tracey Grooms, filed an appeal under Contract No. W91B4L-10-P-0959 with the Armed Services Board ofContractAppeals (Board). WhenMr. Grooms was an employee ofSCE, Ms. Grooms served as a site orproject manager. His duty position required himto win and fulfill contracts only. SCE has not employed Ms. Grooms since August 2010. Mr. Grooms is neither an employee nor an officer ofSCE and does not represent SCE in any

. * capacity. Mr. Soufan also declares that: SCE has never filed a claim against the United States Government for the above referenced contract. Moreover, no SCE officer or attorney appears beforethe Board on this appeal in accordance with ASBCARule 26. On 27 August 2014, the Boardreceived a letterfrom a Trisan Salem Mohamed, who statedthat he is appellant's owner and thathe authorized Tracey Grooms to ''workwith"the Board onthe appeal. On 8 September2014, the Boardreceived another letter from Mr. Mohamed, stating that "Mrs. Tracey Grooms is the corporate officerin this company and she is fully authorized to represent ourcompany in this case, we are submitting this letter according to Rule 15(a)." On 31 October 2014, the government filed its reply upon its motion to dismiss for lack ofstanding. Exhibit 7 to the reply is the 7 October 2014 declaration of Tracy Grooms, who declares that he (1) worked for appellant from January 2010 to July 2010; (2) did not create the 5 June 2014 notice ofappeal; and (3) did not sign a claim certification. Althoughthe Board orderedthat, by 10 December 2014, appellant file a surreply to the government's reply briefthat addressed the declaration of Tracy Grooms, appellanthas not filed any such surreply norhas it addressed the declaration ofMr. Grooms. We find the uncontested declaration ofMr. Grooms and the declaration ofMr. Soufan credible and not contradicted by any evidence of comparable weight. Those declarations demonstrate, and we so find, that neither Tracey Grooms nor Tracy Grooms is a corporate officer ofappellant, andthat no

* The quotation is reproduced verbatim, and without alteration.

2person by either name has been employed by appellant since 2010, much less as a corporate officer. On 17 November 2014, the government filed a motion to dismiss for lack of jurisdiction, contending thatthe "appealing entity" is notthe entity with which it entered the contract. Despite a Board order that appellant respond to that motion, appellant has not done so. Norhas appellant responded to a 15 January 2015 order to show cause why this appeal should not be dismissed with prejudice for failure to prosecute. DECISION We regard Mr. Mohamed's letter stating that "Mrs. Tracey Grooms is the corporate officer in this company and she is fully authorized to represent our company in this case, we are submitting this letter according to Rule 15(a)," as appellant's designation ofTracey Grooms as its representative in this appeal. Because neither Tracey Grooms nor Tracy Grooms is a corporate officer ofappellant, and because there is no suggestion that appellant is represented by an attorney, appellant's representative in this appeal does not meet the requirements ofBoard Rule 15(a) (2014). Consequently, we grant the government's 17 June 2014 motion, and dismiss the appeal, withoutprejudice to its reinstatement upon entering ofappearance by a person authorized underBoard Rule 15(a) to represent it in the prosecution ofthis appeal. In view ofthis decision, the government's motion to dismiss for lack of jurisdiction is dismissed as moot. CONCLUSION Forthe reasons stated, the appeal is dismissed, without prejudice. Dated: 18 June 2015

(Signatures continued)

3 Judge Armed Services Board ofContract AppealsI concur

# ~~1fflt-- MARKN. STEMPLER Administrative Judge Acting Chairman Armed Services Board ofContractAppeals I concur 

# d+K

.. RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContractAppeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCA No. 59354, Appeal ofSmart Construction & Engineering Co., rendered in conformance with the Board's Charter. Dated:

4 JEFFREYD. GARDIN R.ecorder,Armed Services Board ofContractAppeals