ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of-- ) ) Bushra Company ) ) Under ContractNo. M68450-06-M-7233 )

APPEARANCE FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCANo. 59918

Mrs. BushraMohammed

Owner Raymond M. Saunders, Esq.

Army ChiefTrial Attorney ChristinaLynn E. McCoy, Esq.

Trial Attorney

OPINION BYADMINISTRATIVE JUDGE PROUTY ONTHE GOVERNMENT'S MOTION TO DISMISS FORLACK OF JURISDICTION

Before the Board is the government's motionto dismiss for lack of jurisdiction, which has two bases: first, the government contends, appellantBushra Company (Bushra) failed to file its appeal with the Board within 90 days ofreceipt ofthe contracting officer's final decision (COFD) terminating the subject contract for default; second, the government argues, Bushra's later claim to the contracting officer (CO) was (iftimely)jurisdictionally defective because it did not include a sum certain. Bushra'sresponse is confinedto a defense onthe merits ofthis action, arguing that it should not have had its contract terminated because ofproblems withthe contracting officer's email. Bushra makes no effort, whatsoever, to address the government's challenges to ourjurisdiction. The government's arguments prevail.

STATEMENT OF FACTS (SOF) FORPURPOSES OF THEMOTION

1. On 25 September 2006, the government's Joint Contracting Command for Iraq and Afghanistan (JCC-1/A) awarded ContractNo. M68450-06-M-7233 (the contract) to appellant Bushra in the amount of$328,440.00 for the delivery oflimestone at various sites within Iraq (R4, tab 1at 2-3). The contract's statement ofwork anticipated that performance would begin within 7 days ofthe contract award and take no longerthan 30 days to complete (id. at 3). The contract also included a clause from the Department ofDefense Federal Acquisition Regulation Supplement (DFARS) thatprovidedthat all correspondence with the government would be conducted inEnglish (id. at DFARS 252.225-7041, CORRESPONDENCE INENGLISH (JUN 1997)).

2. Bushra never made the deliveries required by the contract (R4, tab 14 at 11 (Bushra's 2015 "Claim for settlement for limestone contract")). Whetherthis was thefault ofBushra, the government, orneither party is notrelevant for resolution ofthe pending motion.

3. The government terminated Bushra's contract for cause1on 18 February 2007 (R4, tab 4). The termination was receivedthe same day (R4, tab 14 at 15). The letter informed Bushra ofits "rightto appeal [the] determination underthe Disputes clause cited in [Federal Acquisition Regulation (FAR)] Part 33.211" (R4, tab 4 at 1). The letter did not include language required by the FARexplaining the right to appeal to the agency board ofcontract appeals within 90 days (see id., FAR33.21 l(a)(3)(v)). In addition to a letterto Bushra stating so, the government also issued a contract modification effectingthe termination on the same date (R4, tab 5 at 1 ).

4. On 25 June 2012, Bushra sent an email to the Army statingthat it had been out of Iraq "because ofthe security situation" and now wishedto close out its contracts with the United States military (R4, tab 5 at 2). The email requested thatthe Army inform Bushra ofthe payments made on the contract (id.). The Army apparently responded to Bushra by forwarding it a copy ofthe contract modification terminating it for cause (id. at 1 ).

5. Bushra made no attempt to challenge the termination for cause in any manner until 5August 2013, when it sent an email to Army contract closeout personnel inquiring about the status ofthe contract (R4, tab 6). After some back and forth with Armypersonnel, Ms. Joan Wysoske, ChiefofReachback Closeouts for the Army Contracting Command, wrote to Bushrathatthe contracthad been terminated for Bushra's "failure to perform" and that a copy ofthe modification was sentto Bushra on 29 June 20122 (R4, tab 10 at 4). Ms. Wysoske also wrote that, "no compensation is coming to you" (id. at 3). Bushraresponded that its failure to perform was the Army's fault (id.).

6. More email traffic followed, including a statement from Bushra
on 2 September 2013 that it "want[ed] compensation equals to our lost money" (R4, tab 10 at 2). On 3 September2013, the Army told Bushrathat it needed to submit a claim telling the Army, "the exact amount ofthe money you wish the governmentto pay you and why the government should pay you any compensation" (id.). On 10 September 2013, Bushra sent to the Army an email with an attachmentthat it characterized as its "claim for settlement" (see id. at 1-2; R4, tab 13 (the apparent attachment)).

1 As in the referenced clause in the Federal Acquisition Regulation (FAR), FAR 52.212-4(m), the government could use the terms "termination for cause" and "termination for default" interchangeably. 2 The 29 June 2012 correspondence, itself, is not in any ofthe files produced in this case, though the statementthat there was such correspondence is consistent with the documents in tab 5 ofthe Rule 4 file. 27. The 17-page attachment (Bushra's claim) consisted largely of"screen shots" of email between Bushra and various Army personnel discussing performance ofthe contract with a narrative interspersed between the screenshots (see R4, tab 13). We construe it to be solely a challenge to the Army's termination for cause, and to constitute
an effort to recoup money that Bushra lost as a consequence ofthattermination (R4, tab 13 at 15). In general, Bushra argued that its designatedpoint ofcontactwith the Army, lLTTodd Lohstreter, was not receiving his emails as a result ofaproblem on lLTLohstreter's end and that this prevented Bushra from performing (R4, tab 13 at 4). On page 15 ofBushra's claim, it stated that it neededto make a settlement for "all the cost we spent under this contract" and then referredthe readerto its agreement with the BoadAlmada company for limestone, which it purportedly paid (id. at 15). The remaining two pages ofBushra's claim appear to be in Arabic and include some tables with numbers in them, but it is not clear what the numbers represent or in what denomination they would be ifthe figures actually are costs (see id. at 16-17).

8. Ms. Wysoske informed Bushra, on 26 September2013, thatthe document referred to as Bushra's claim did not, in fact, constitute a claim because it did not include the amount ofmoney requested from the government and, ifthat amount were greater than $100,000, it needed to be certified (R4, tab 10 at 1 ). She also attached a sheet of instructions about how to file a claim (id.). On 17 October 2013, Ms. Wysoske, in response to a follow-up email from Bushra, informed it that she "reject[ed]" its claim as "untimely and unsupported" and added that Bushranever gave her a "dollar amount ofthe claim" (R4, tab 11).

9. There, things laid for a little more than a year, until 28 October 2014, when Bushra sent another email to the Army, essentially resubmitting the identical claim, dated 10 September 2013, that Ms. Wysoske had earlier "reject[ed]" (R4, tab 13). The Army responded on the same date, explaining that it hadreviewed the documentation provided by Bushra and that "[n]opaymentwill be made" (R4, tab 12 at 1). On 5January 2015, Bushra again sent an email to the Army attaching the same claim and requesting a response (R4, tab 14).

10. On 8 January 2015, CO Thomas Petkunas issued whathe characterized as a "final decision," rejecting the claim (R4, tab 15 at 1 ). This "final decision" noted that the claim was "untimely and unsupported" and that Bushra never gave a dollar amount for the claim (id.). It also notedthatthe contract had beenterminated for cause on 18 February 2007 and went on to explain Bushra's appeal rights underthe Contract Disputes Act (id.).

11. Bushra filed an appeal with the Board on 7 April 2015

- within 90 days of the 8 January 2015 letter.

3DECISION

We do not possessjurisdictionto considerthis appeal because Bushra's appeal ofthe CO's decision to terminate the contract for default was presentedto us more than 90 days after receipt ofthe final decision terminating the contract for cause.
The timeliness ofappealing a CO's final decision is a matter ofthe Board'sjurisdiction. See 41U.S.C.§7104 (2011) (formerly 41U.S.C.§606); Cosmic Construction Co. v. UnitedStates, 697 F.2d 1389, 1390 (Fed. Cir. 1982) (requirement that appeal be made within 90 days isjurisdictional). By statute, any challenge to a CO's decision mustbe brought before the Board within 90 days ofthat decision being received by the contractor. 41 U.S.C. § 7104; Cosmic Constr., 697 F.2d at 1390; Decker & Co. v. West, 76 F.3d 1573, 1578 (Fed. Cir. 1996) (citing Cosmic Constr., 697 F.2d at 1390). In the case ofa termination for cause, such as the one presented here, receipt ofnotification ofthe CO's decision to terminate for cause begins the 90-day clock. Placeway Constr. Corp.
v. UnitedStates, 920 F.2d 903, 906-07 (Fed. Cir. 1990).
Here, it is undisputed that Bushrawas informed ofits termination for default more than 90 days before its appeal. The first such notification occurred on 18 February 2007, when the Army notified Bushra ofits termination, and Bushra, in fact, received this termination letter the same day (SOF 

### ii 3). Bushra did not file an appeal before 19 May 2007, the 91 st day after notification ofcontract termination. Atthat date, this Board lost itsjurisdictionto considerBushra's appeal. Although the Army's termination letter failed to include language required by the FAR fully explaining its appeal rights, that deficiency, alone, does not preventthe letter from triggering the limitation period. The letterdidreferBushrato the proper FARprovisions explaining howto appeal the CO's decision (see SOF 

### ii 3), and if Bushra does not prove that the letter's failure to more directly set forth the means ofappeal caused it actual prejudice, it cannotuse the deficiency to invalidate the decision and vitiate its finality. See Decker & Co., 76 F.3d at 1579 (requiringproofof detrimental reliance); see also MansoorInternationalDevelopmentServices, ASBCA No. 58423, 14-1 BCA

### ii 35,742 at 174,926. Bushra, quite simply, has made
no allegation that it was misled by the letter (indeed, it made no allegation in defense ofthe government's motion, whatsoever), and thus, the deficient notice ofappellate rights does not invalidate the termination letter's starting ofthe appellate clock. See Medina Contracting Co., ASBCA No. 53783, 02-2 BCA

### ii 31,979 at 158,020 (decliningto presume prejudice when not alleged by appellant). Similarly, Bushra's oblique reference, in its 25 June 2012 email to the government, to having been absent from Iraq for a time due to "the security situation" there (see SOF 

### ii4), does not change matters. Bushrahas not alleged that its absence
4from Iraq (during an unspecified period oftime that apparently ended some time priorto 25 June 2012) in any way prevented it from accessing its email and being aware ofits termination for cause orthat in any way it was hindered from pursuing its appeal rights in
a timely manner. Moreover, even if"the security situation"provided a full and complete factual and legal excuse for Bushrato withhold its appeal until the situation were resolved (which it does not), by 25 June 2012, at the latest, Bushrawas free enough of those concerns to be corresponding with the government about its contract. No correspondence beyond the 25 June 2012 inquiry was filed before 24 September 2012, the 91 st day. Thus, underno circumstances can the security situation in Iraqjustify Bushra's failure to file a timely appeal.

We further note that the government's communication with Bushra in 2013 and 2014, acceptance ofits claim3 and issuance ofan apparently superfluous COFD has no effect upon ourjurisdictionhere. Tobe sure, there are cases in which the government's signaling to the parties that it was reconsidering a claim acted to stay the running ofthe appeal period, see, e.g., GuardianAngelsMedical Service Dogs, Inc. v. UnitedStates, 809 F.3d 1244 (Fed. Cir. 2016); Sach Sinha andAssociates, Inc., ASBCANo. 46916, 95-1ii27,499 at 137,040, butthere is no evidence in this record thatreconsideration occurred, nor does Bushra claimthat it did. Moreover, it is well settled that communications after conclusion ofthe appeal period "perforce could not have had any effect" on the view ofthe finality ofthe termination decision during the appeal period. ShafiNasimi Constr. & Logistics Co., ASBCANo. 59916, 16-1BCAii36,215.
Thus, we conclude that Bushra did not file a timely notice ofappeal.

CONCLUSION

Forthe reasons stated herein, we dismiss ASBCA No. 59918 for lack of jurisdiction.

Dated: 22 April 2016

(Signatures continued)

# J.~ Administrative Judge Armed Services Board ofContractAppeals

3 To be clear, the only claim in this case is the government's termination for default. 

### 5I concur 

# deM/,/M---

N. STEMPLER Administrative Judge Acting Chairman Armed Services Board ofContract Appeals I concur

# ~CKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContractAppeals

I certify that the foregoing is atrue copy ofthe Opinion and Decision of the Armed Services Board ofContract Appeals in ASBCANo. 59918, Appeal of Bushra Company, rendered in conformance with the Board's Charter.

Dated:



### 6 JEFFREY D. GARDIN Recorder, Armed Services Board ofContractAppeals