ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

Rohulhameed Construction Company ) 

) 

Under Contract No. W91B4M-09-C-7104 ) 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 61359 

Mr. Rohul A. Afzaly 

President 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

CPT Jeremy D. Burkhart, J A 

Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE HARTMAN 

ON THE GOVERNMENT'S MOTION TO DISMISS 

The government moves to dismiss this appeal for lack of jurisdiction upon the 

ground it is untimely because it was filed more than 90 days after the contracting 

officer (CO) emailed her final decision to an attorney who had been assisting 

appellant, a construction company located in Afghanistan. Appellant opposes the 

government's motion. 

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 

On March 23, 2009, the Department of the Army awarded to appellant, 

Rohulhameed Construction Company (RCC), a contract, No. W91B4M-09-C-7104, in 

the sum of $414,160.00 for the construction of earth berms and guntruck ramps in 

Helmand, Zabul, and Kandahar provinces in Afghanistan, contract line item numbers 

(CLINs) 1, 2, and 3, respectively, each in the amount of $135,720 (R4, tab 1). CLIN 4 

was workers compensation insurance or security as required by the Defense Base Act, 

42 U.S.C. §§ 1651-54 (DBA), with estimated funding of$7,000. 

The contract stated the delivery date in each province was "21 d[ a ]ys after date 

ofNTP" and the contractor shall "complete the entire work ready for use not later than 

63 calendar days after the date the Contractor receives the notice to proceed" (NTP) 

(R4, tab 1 at 8-9). The contract incorporated by reference Federal Acquisition 

Regulation (FAR) 52.233-1, DISPUTES (JUL 2002); and FAR 52.249-2, TERMINATION 

FOR THE CONVENIENCE OF THE GOVERNMENT (FIXED-PRICE) (MAY 2004) -

ALTERNATE I (SEP 1996) (id. at 19). 
On April 29, 2009, RCC received from the Army CO its NTP with contract work 

""effective 30 Apr 2009" stating that it was to complete the entire contract work in 63 

calendar days or by "2 Jul 2009" (R4, tab 5). RCC furnished the Army on June 24, 2009, 

an invoice dated June 8, 2009, in the amount of $135,720 for work it had performed in 

Helmand province (Tarin Kowt ANA Base) and received payment from the Army (R4, 

tabs 5, 7-8, 10). RCC furnished the Army on November 9, 2009, a second invoice dated 

October 11, 2009, in the amount of $135,720 for work it had performed in Zabul province, 

which was sent to the Army's finance office for payment on November 12, 2009, and paid 

by the Army (R4, tabs 11-13, 19). 

According to RCC, prior to April 15, 2010, it completed all work with respect to 

CLIN 3. By memorandum dated April 15, 2010, the Army CO stated that ··[e]ffective 

15 April 2010 you are notified that contract number W9 l B4M-09-C-7104 ... is terminated 

in its entirety for the government's convenience under clause 52.249-2 ALT l ." The CO 

added ''[t]he Contractor is hereby informed that this termination is a no-cost settlement 

and that the Contractor waives any and all charges against the Government because of the 

termination of this contract and releases it from all obligations under this contract or due 

to its termination." (R4, tab 14) 

In a final decision dated four days later, April 19, 2010, the CO stated: 

In the matter of the Termination for the Convenience of the 

Government of contract number W9 l B4M-09-C-7104, it is 

the final decision of the Contracting Officer to terminate 

this contract unilaterally and deobligate all remaining 

funds from the contract except for the DBA insurance 

amount. This action is taken as a result of the contractor's 

failure to sign or acknowledge the Notice of Termination 

effective on 15 April 2010. 

The CO noted RCC could appeal his final decision to the Joint Contracting CommandIraq/Afghanistan's Deputy Principal Assistant Responsible for ContractingAfghanistan/Competition Advocate at Bagram Air Base, Afghanistan or to the Armed 

Services Board of Contract Appeals (ASBCA). The CO added "[i]nstead of appealing 

to the agency board of contract appeals, [RCC] may bring an action directly in the 

United States Court of Federal Appeals within 12 months of the date you receive this 

decision." (R4, tab 15) On the same date, April 19, 2010, the CO issued a "unilateral" 

contract modification, No. P00002, purporting "to reflect a no-cost settlement agreement 

with respect to the Notice of Termination dated 15 April 2010," which stated as follows: 

The Contractor unconditionally waives any charges against 

the Government because of the termination of the contract 

and releases it from all obligations under the contract or 

2 
(R4,tabl6) 

due to its termination. The Government agrees that all 

obligations under the contract are concluded WITH THE 

EXCEPTION OF THE OUTSTANDING DBA 

INSURANCE CHARGE. 

The Army has not presented any evidence in this appeal of the means by which 

it transmitted the CO's final decision to RCC or, more importantly, the date on which 

RCC received the CO's final decision terminating the contract. 

Nearly four years later, by email dated March 12, 2014, an Army contract 

specialist based at Rock Island, Illinois, sent an email to three different addresses at 

Gmail, Yahoo and Hotmail advising that he was "closing out" RCC's contract and he 

needed confirmation there were no outstanding claims, disputes or other contractual 

issues (R4, tab 17). By email dated June 9, 2014, RCC notified the contract specialist 

it had received payments for CLINs 1 and 2, but CLIN 3 "[ c ]onstr1:1ction at Kandahar 

Province $135,720.00 is yet to be paid." The contract specialist responded by email 

stating he could help RCC with ·'the DBA insurance only'' (CLIN 4) and appended a 

copy of the contract "modification" that terminated the contract. (R4, tab 20) 

On October 25, 2016, Walt Pennington, an American attorney retained by RCC, 

sent a certified claim for $135,720 for CLIN 3 to an unspecified office at ''the Pentagon." 

In response to his claim submission, he received a telephone call from an Army official 

advising him that Celeste Hobert was the CO responsible for RCC's contract. (R4, tab 21 

at 1) On December 1, 2016, attorney Pennington sent CO Hobert, a copy of RCC 's 

certified claim indicating RCC completed its work before its contract was terminated for 

convenience (id.). An affidavit by RCC's business operations manager attached to the 

claim stated: RCC told the CO that all work was complete, asked the CO to review and 

approve its completed work in order for it to send its final invoice, and the CO did not 

perform the requested review. The business manager added that: the CO instead 

terminated the contract; RCC never agreed to a no-cost settlement with the CO; and RCC 

never signed the Army's notice of convenience termination. The business manager stated 

in this affidavit he expressly authorized the CO or COR "and any person assigned to 

dispute resolution for this claim to discuss RCC's claim with RCC's attorney, 

Walt Pennington," but did not authorize or request the CO' s final decision be sent or 

transmitted only to attorney Pennington, rather than RCC. (Id. at 4-5) 

On February 1, 201 7, after receiving no response from CO Hobert regarding the 

claim submitted, attorney Pennington filed a petition with the ASBCA to direct the CO 

to issue a decision pursuant to ASBCA Rule l(a)(5) (R4, tab 22 at 1-5). Two days 

later, on February 3, 2017, the Board issued an order stating the government shall, 

within 21 days of the date of the order, show cause why an order directing the CO to 

3 
issue a final decision upon the claim should not be issued or indicate when the CO will 

issue a final decision (R4, tab 25). The Army subsequently advised the Board that a 

final decision would issue by March 21, 2017. and, by order dated 27 February 2017, 

this Board directed that the CO issue a final decision by the Army's date. 

On March 7, 2017, CO Hobert issued a final decision dated March 6, 2017, 

denying RCC's claim requesting $135,720 for construction services in Afghanistan. 

She stated that RCC "completed two of the three temporary Kandak earthberms," 

"[t]he permanent HESCO wall for the third site was completed (by a separate 

contractor) prior to RCC starting on the Zhery Kanda, which eliminated the need for 

the third temporary berm;' and "a no-cost Notice of Termination for Convenience was 

issued 15 April 2010." (R4, tab 28) According to the CO. RCC did not appeal the 

CO's final decision to the ASBCA within the allotted time frame. making this claim 

untimely, and also failed to submit a claim to the CO within six years after accrual of a 

claim, making its claim barred "by the statutory deadline." (Gov't mot., ex. 3) 

The Army did not contend that CO Hobert sent a copy of her final decision to 

RCC. Instead, she only sent it by email to the attorney who had represented RCC 

before the ASBCA in its attempt to obtain issuance of a decision (Walt Pennington). 

She did not send a copy of the final decision by registered mail or use a "read receipt" 

on the email she sent to Mr. Pennington. (Gov't mot., ex. 3 at 1, ex. 4 at 1) 

On October 2, 2017, RCC submitted a notice of appeal of the CO's final 

decision to the ASBCA and the Board notified RCC's President, Rohul Amin Afzaly. 

that its appeal was docketed, as ASBCA No. 61359, on October 4, 2017. On 

November 13, 2017, the Board directed the Army to submit to the Board a copy of the 

return receipt which accompanied the CO's decision within 21 days and stated RCC 

also may submit evidence, by affidavit or otherwise, of when the CO's decision was 

received. By letter dated November 25, 2017, RCC advised the Board: 

1. Our Company assigned "Walt Pennington" Pennington 

Law Firm to Submit our claim on behalf of Our 

Company. 

2. They did Submit the Claim .... 

3. After receiving the decisions [sic], they decided to 

move a way and it took time, until they sent us the 

decision along with the paper of contracting officer. 

On December 4. 2017, the Army filed a motion to dismiss RCC's appeal for lack of 

jurisdiction. Attached to the motion was a December 1, 2017 email from attorney 

Pennington stating in response to an inquiry from Army counsel that: he received the 

CO's final decision on March 7, 2017; he "forwarded this to my client on that date"; 

he has "contacted the client to find out the status"; and, "[a]t this time, I am not 

4 
counsel for RCC." No copy of an email forwarding the decision was attached to the 

attorney's email to the Army, no specific means for forwarding the email to RCC was 

stated, and no specific forwarding address for RCC was stated. Also, the Pennington 

email is not clear as to when attorney Pennington ceased representing RCC. (Gov't 

mot., ex. 6 at 1) 

DECISION 

The Army asserts that we lack jurisdiction to entertain RCC's appeal because 

the appeal was filed more than 90 days after the CO sent her final decision to 

"Walt Pennington" by "email.'' The Army simply contends Mr. Pennington is an 

"attorney" who was retained by RCC to obtain an order from the ASBCA directing the 

CO to issue a final decision on its claim, and that receipt of the CO's final decision by 

an "attorney" such as Mr. Pennington via email is sufficient to trigger running of the 

90-day filing deadline. 

The Contract Disputes Act (CDA) requires a CO to issue a final decision in 

writing and to mail or otherwise furnish a copy of the decision to the contractor. 41 

U.S.C. § 7I03(a)(3), (d). The implementing regulation, the FAR, further requires the 

CO decision be provided to the contractor by "certified mail, return receipt requested, 

or by any other method that provides evidence of receipt." FAR 3 3 .211 (b ). 

The certified mail receipt, Post Office Form 3 811, specifically requires the 

receiving party to print its name, sign the form upon receipt, and note the date of 

delivery. Riley & Ephriam Constr. Co. v. United States, 408 F.3d 1369, 1373 (Fed. 

Cir. 2005). It thus establishes the date a contractor "received" the CO final decision. 

Where there is no certified mail receipt, as is the case here, the government must show 

it used some other method of delivery providing evidence of receipt by the contractor. 

Id.; FAR 33.21 l(b). 

When a contractor appeals to the Board from a CO's final decision, the CDA 

requires that it do so within 90 days from the date of receipt of the decision. 41 U.S.C. 

§ 7I04(a). The filing period is statutory and the Board cannot waive it. Cosmic 

Construction Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir. 1982). 

Receipt of a CO's decision means the "actual physical receipt of that decision 

by the contractor." Borough of Alpine v. United States, 923 F.2d 170, 172 (Fed. Cir. 

1991) ( quoting Pathman Construction Co. v. United States, 817 F .2d 1573, 1577 (Fed. 

Cir. 1987)). "Actual receipt" includes receipt by an authorized representative of the 

contractor acting within the scope of the representative's authority. Borough of 

Alpine, 923 F.2d at 172-73. 

5 
The court of appeals has stated that by "linking the limitations period to receipt 

by the contractor, the CDA eliminates disputes about the time of actual notice ... or the 

internal mail procedures of various contractors." Riley & Ephriam, 408 F.3d at 1372. 

The burden is on the government to prove the date of contractor receipt by objective 

indicia. Id. The 90-day appeal period does not commence until the CO decision is 

received at the location designated by the contractor for receipt of project-related 

correspondence. E.g., Brinderson Corp., ASBCA No. 31831, 86-1 BCA, 18,616 at 

93,549, ajf'd on recon., 86-2 BCA ,r 18,905 at 95,351. We have held that, if the 

contractor wishes a CO's decision be sent to an address other than its address of 

record, it must show that such a request was made by it and agreed to by the CO. L. C. 

Craft, ASBCA No. 47351, 94-2 BCA ,I 26,929 at 134,106. 

In this appeal, there is nothing in the record indicating the contractor ever 

requested that the CO's final decision be sent to an address other than its address of 

record. While an RCC official executed an affidavit expressly authorizing the CO or 

COR "and any person assigned to dispute resolution for this claim to discuss RCC's 

claim with RCC's attorney, Walt Pennington," he did not authorize or request the CO to 

send or transmit her final decision only to attorney Pennington, in lieu of sending and/or 

transmitting a copy of that decision to RCC (R4, tab 21). We recognize that there are 

difficulties in communicating with companies located in Afghanistan, but the Rock 

Island, Illinois, office where the CO is located previously communicated successfully 

with RCC and its officials using email addresses the Army had on file. That office sent 

RCC emails regarding closeout of the contract at its own email addresses and received a 

response by email to at least one of those emails from RCC. (R4, tabs 17, 20) Moreover, 

the record before us reflects that Mr. Pennington ceased representing RCC in any 

capacity. It does not show when his express authorization to engage in discussions 

regarding RCC's claim ended, only that the authorization expired sometime between the 

order from this Board directing issuance of a final CO decision and the filing of this 

appeal. (Gov't mot., ex. 6 at 1) In sum, there are no objective indicia in the record of 

date of physical receipt of the CO's final decision by RCC. We therefore possess no 

basis to conclude that transmission by email of the CO's final decision to Mr. Pennington 

triggered the 90-day period for appealing that decision. 

It is the Army's burden to establish the date that a final decision was received 

by the contractor triggering running of the 90-day filing limitation period. Military 

Aircraft Parts, ASBCA No. 60308, 17-1 BCA ,r 36,680 at 178,609-10. It has failed to 

show here the date that RCC received the CO's final decision. L.C. Craft, 94-2 BCA 

,r 26,929 at 134,107 (we must base our decision on the evidence presented to us). 

6 
CONCLUSION 

The Army's motion to dismiss for lack of jurisdiction is denied for the reasons 

set forth above. 

Dated: April 4, 2019 

I concur 

I 

f, I_ -

RIJHARD SHACKLEFORD 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

TERRENCE S. HARTMAN 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

J.REIROUTY 

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 No. 61359, Appeal of 

Rohulhameed Construction Company, rendered in conformance with the Board's 

Charter. 

Dated: 

7 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals