ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- ) ) Rohulhameed Construction Company ) ) Under Contract No. W91B4M-09-C-7104 )

APPEARANCE FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 61359

Mr. Rohul A. Afzaly

President RaymondM. Saunders, Esq.

Army ChiefTrial Attorney CPTJeremy D. Burkhart, J A

Trial Attorney
OPINION BYADMINISTRATIVE 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 FORPURPOSES OF THE MOTION

On March 23, 2009, the Department ofthe 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 ofearth berms and guntruck ramps in Helmand, Zabul, and Kandaharprovinces 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 BaseAct, 42 U.S.C. §§ 1651-54 (DBA), with estimated funding of$7,000.

The contract stated the delivery date in each provincewas "21 d[a]ys after date ofNTP" and the contractor shall "completethe entire workready for use not laterthan 63 calendar days afterthe date the Contractorreceives the notice to proceed" (NTP) (R4, tab 1at 8-9). The contract incorporated by reference Federal Acquisition Regulation (FAR) 52.233-1, DISPUTES (JUL 2002); and FAR 52.249-2, TERMINATION FORTHE CONVENIENCE OF THE GOVERNMENT (FIXED-PRICE) 

### (MAY 2004)

- ALTERNATE I (SEP 1996) (id. at 19).OnApril 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 contractwork in 63 calendar days or by "2 Jul 2009" (R4, tab 5). RCC furnished the Army on June 24, 2009,
an invoice datedJune 8, 2009, in the amount of$135,720 for work it hadperformed in Helmand province (Tarin KowtANA Base) andreceivedpayment 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 hadperformed 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, priorto 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 W9lB4M-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 thatthis termination is a no-cost settlement and that the Contractorwaives any and all charges against the Government because ofthe termination ofthis contract and releases it from all obligations underthis contract ordue to its termination." (R4, tab 14)

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

In the matter ofthe Termination for the Convenience ofthe Government ofcontract number W9lB4M-09-C-7104, it is the final decision ofthe Contracting Officertoterminate this contractunilaterally and deobligate all remaining funds from the contract except for the DBA insurance amount. This action is taken as a result ofthe contractor's failure to sign or acknowledgethe Notice ofTermination 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 ofContractAppeals (ASBCA). The CO added "[i]nstead ofappealing to the agency board ofcontract appeals, [RCC] may bring an action directly in the United States Court ofFederal Appeals within 12 months ofthe date you receive this decision." (R4, tab 15) Onthe 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 ofTermination dated 15 April 2010," which stated as follows:
The Contractor unconditionally waives any charges against the Governmentbecause ofthe termination ofthe contract and releases it from all obligations underthe contract or

2 

# I(R4,tabl6) due to its termination. The Government agrees that all obligations underthe contract are concluded WITH THE EXCEPTION OF THE OUTSTANDING DBA INSURANCE CHARGE.

The Army has not presented any evidence in this appeal ofthe 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 terminatingthe contract. Nearly four years later, by email dated March 12, 2014, an Army contract specialistbased 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 1and 2, but CLIN 3 "[c]onstr1:1ction at Kandahar Province $135,720.00 is yetto be paid." The contract specialistresponded by email stating he could help RCC with ·'the DBA insurance only'' (CLIN 4) and appended a copy ofthe contract "modification"that terminated the contract. (R4, tab 20)

On October 25, 2016, WaltPennington, 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 ofRCC's certified claim indicating RCC completed its workbefore its contractwas terminated for convenience (id.). An affidavit by RCC's business operations manager attached to the claim stated: RCC told the COthat all work was complete, asked the COto review and approve its completed work in order for it to send its final invoice, and the CO did not perform the requested review. Thebusiness manager added that: the CO instead terminatedthe contract; RCC never agreed to a no-cost settlementwith the CO; and RCC
never signed the Army's notice ofconvenience termination. The business manager stated in this affidavit he expressly authorized the CO or COR "and any person assigned to dispute resolution for this claimto discuss RCC's claim with RCC's attorney, Walt Pennington," but did not authorize orrequest the CO's final decision be sent or transmitted only to attorney Pennington, ratherthan RCC. (Id. at 4-5)

On February 1, 2017, afterreceiving no response from CO Hobert regarding the claim submitted, attorney Pennington filed a petition with the ASBCAto direct the CO to issue a decision pursuantto ASBCA Rule l(a)(5) (R4, tab 22 at 1-5). Two days later, onFebruary 3, 2017, the Board issued an order stating the government shall, within 21 days ofthe date ofthe order, show cause why an orderdirecting the CO to

3issue 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 COissue 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 claimrequesting $135,720 for construction services in Afghanistan. She statedthat RCC "completedtwo ofthe three temporary Kandak earthberms," "[t]hepermanentHESCO wall for the third site was completed (by a separate contractor) priorto RCC starting on the Zhery Kanda, which eliminated the need for the third temporary berm;' and "ano-cost Notice ofTermination for Convenience was issued 15 April 2010." (R4, tab 28) According to the CO. RCC did not appeal the CO's final decision to theASBCA within the allotted time frame. makingthis claim untimely, and also failed to submit a claim to the CO within six years after accrual ofa claim, making its claim barred "by the statutory deadline." (Gov't mot., ex. 3)

TheArmy did not contend that CO Hobert sent a copy ofher final decision to RCC. Instead, she only sentit by email tothe attorney who hadrepresented RCC before the ASBCA in its attemptto obtain issuance ofa decision (Walt Pennington). She did not send a copy ofthe final decision by registered mail oruse a "readreceipt"
on the email she sentto Mr. Pennington. (Gov't mot., ex. 3 at 1, ex. 4 at 1)

On October 2, 2017, RCC submitted a notice ofappeal ofthe CO's final decision to the ASBCA and the Boardnotified RCC's President, Rohul Amin Afzaly. that its appeal was docketed, as ASBCA No. 61359, on October4, 2017. On November 13, 2017, the Boarddirected the Army to submitto the Board a copy ofthe return receipt which accompanied the CO's decision within 21 days and stated RCC also may submit evidence, by affidavit or otherwise, ofwhen the CO's decision was received. By letter datedNovember 25, 2017, RCC advised the Board:

1. Our Company assigned "WaltPennington" Pennington LawFirm to Submit our claim onbehalfofOur Company. 2. They did Submitthe Claim

.... 3. Afterreceivingthe decisions [sic], they decidedto
move a way and it tooktime, until they sent us the decision along withthe paper ofcontracting officer.

OnDecember4. 2017, the Army filed a motion to dismiss RCC's appeal for lack of jurisdiction. Attachedto 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 "forwardedthis to my client on that date"; he has "contactedthe clientto find outthe status"; and, "[a]tthis time, I am not

4counsel for RCC." No copy ofan 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 lackjurisdiction to entertain RCC's appeal because the appeal was filed more than 90 days after the CO sent her final decision to "WaltPennington"by "email.'' The Army simply contends Mr. Pennington is an "attorney"whowas retained by RCC to obtain an order from the ASBCA directing the CO to issue a final decision on its claim, and that receipt ofthe CO's final decision by
an "attorney" such as Mr. Pennington via email is sufficient to trigger running ofthe 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 ofthe decision to the contractor. 41 U.S.C. § 7I03(a)(3), (d). The implementing regulation, the FAR, further requires the CO decision beprovided to the contractor by "certified mail, return receipt requested,
orby any othermethod that provides evidence ofreceipt." FAR3 3.211(b).
The certified mail receipt, Post Office Form 3811, 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. UnitedStates, 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 ofdelivery providing evidence ofreceipt 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 ofreceipt ofthe decision. 41 U.S.C. § 7I04(a). The filing period is statutory and the Board cannot waive it. Cosmic Construction Co. v. UnitedStates, 697 F.2d 1389, 1390 (Fed. Cir. 1982). Receipt ofa CO's decision means the "actual physical receipt ofthat decision by the contractor." Borough of Alpine v. UnitedStates, 923 F.2d 170, 172 (Fed. Cir. 1991) (quoting Pathman Construction Co. v. UnitedStates, 817 F.2d 1573, 1577 (Fed. Cir. 1987)). "Actual receipt" includes receipt by an authorized representative ofthe contractor acting within the scope ofthe representative's authority. Borough of Alpine, 923 F.2d at 172-73.



### 5

### The court ofappeals has statedthatby "linkingthe limitations periodto receipt by the contractor, the CDA eliminates disputes about the time ofactual notice

...or the internal mail procedures ofvarious contractors." Riley & 

### Ephriam, 

### 408 F.3d at 1372. The burden is on the government to prove the date ofcontractor 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 ofproject-related correspondence. E.g., 

### Brinderson Corp., 

### ASBCA No. 31831, 86-1 BCA, 18,616 at 93,549, ajf'don recon., 

### 86-2 BCA

## ,r 18,905 at 95,351. We have held that, ifthe contractor wishes a CO's decision be sent to an address otherthan its address of record, it must showthat such a request was made by it and agreed to by the CO. L. C. 

### Craft, 

### ASBCANo. 47351, 94-2 BCA

### ,I26,929 at 134,106.

In this appeal, there is nothing in the record indicatingthe contractor ever requested thatthe CO's final decision be sent to an address otherthan 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 ortransmither final decision only to attorney Pennington, in lieu ofsending and/or transmitting a copy ofthat decision to RCC (R4, tab 21). We recognize that there are difficulties in communicatingwith 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 ofthe contract at its own email addresses and received a response by email to at least one ofthose emails from RCC. (R4, tabs 17, 20) Moreover, the record before us reflects that Mr. Pennington ceasedrepresenting RCC in any capacity. It 

### does not showwhen his express authorization to engage in discussions regarding RCC's claim ended, only thatthe authorization expired sometime between the order from this Board directing issuance ofa final CO decision and the filing ofthis appeal. (Gov'tmot., ex. 6 at 1) In sum, there are no objective indicia in the record of date ofphysical receipt ofthe CO's final decision by RCC. We therefore possess no basis to conclude that transmission by email ofthe CO's final decision to Mr. Pennington triggered the 90-day period for appealing that decision.
It

### is the Army'sburden to establish the date that a final decision was received by the contractortriggeringrunning ofthe 90-day filing limitation period. Military AircraftParts, 

### ASBCANo. 60308, 17-1 BCA

## ,r 36,680 at 178,609-10. It

### has failed to show here the date that RCC receivedthe CO's final decision. L.C. Craft, 

### 94-2 BCA 

## ,r 26,929 at 134,107 (we mustbase our decision on the evidencepresentedto us).

6CONCLUSION
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 ofContract Appeals TERRENCE S. HARTMAN Administrative Judge Armed Services Board ofContractAppeals

I concur



### J.REIROUTY Administrative Judge Vice Chairman Armed Services Board ofContract Appeals



### I certify that the foregoing is a true copy ofthe Opinion andDecision ofthe Armed Services Board ofContractAppeals in ASBCANo. 61359, Appeal of Rohulhameed Construction Company, rendered in conformance with the Board's Charter.
Dated:

7 

### JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals