ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeals of

-- Austin Logistic Services Company ) ) ) ) ) ASBCA Nos. 60916, 61052 Under ContractNo. H92237-15-C-7004 APPEARANCE FORTHEAPPELLANT:

APPEARANCES FORTHE GOVERNMENT: Mr. Ismail Khurami CEO/President Jeffrey P. Hildebrant, Esq.

Air Force Deputy ChiefTrial Attorney CaptJustin D. Haselden, USAF Lori R. Shapiro, Esq.

Trial Attorneys OPINION BYADMINISTRATIVEJUDGE PAUL Appellant Austin Logistic Services Company (Austin) filed a notice ofappeal with the Board on 6 December2016 without everpresenting its claim to the AirForce's contracting officer (CO); and the Board docketed the appeal as ASBCANo. 60916. The AirForce movedto dismiss the appeal for lack of jurisdiction. Subsequently, Austin submitted the same claim to the CO who denied it in its entirety. A hearingwas held on the merits for both appeals and bothparties have filed post-hearing briefs. We dismiss ASBCA No. 60916 for lack of jurisdiction and deny the appeal in ASBCANo. 61052. FINDINGS OF FACT 1. On 30 January 2015, the United States Special Operations Joint Task Force-Afghanistan (SOJTF-A) awarded Austin Contract No. H92237-15-C-7004 to provide 18 Morale Welfare and Recreation (MWR) facility workers at Camp Alpha, Bagram Airfield in Afghanistan (R4, tab 1 at 1-3). 1 The contract'sperformanceperiod was 12 months, commencing on 1February 2015; however, funding was originally limited to a 7-monthperiod, encompassing 1February 2015 to 31 August 2015 (R4, tab 1at 3). 2. The contract's scope ofwork was described in section 1 ofthePerformance Work Statement (PWS). Itprovided: The USG seeks to contract MWR facility workers at Camp Alpha, Bagram Airfield, Afghanistan. MWRworkers are for

1 Since the contract was administered by representatives ofthe United States Air Force, we referto respondent as either "AirForce" or "government" ratherthan "SOJTF-A."the maintenance MWR facilities. MWR facilities are defined as fitness centers, laundry facilities, and internet cafes as specifically identifiedby Contracting Officer's Representative. Upkeep ofthe facilities is defined as minor maintenance, welfare, cleanliness, and sanitation.
2. Currently, Camp Alpha has two internet cafes, two laundry facilities and two fitness centers which require services under this 

### PWS.
3. Hours ofOperation. MWRworkers shall be available 24 hours a day, 7 days a week.
4. Quality Control. The contractor shall establish and maintain a complete quality control program for the performance requirements ofthis contract. (R4, tab 2 at 1)
3. On 18 February 2015, the CO executed Modification No. POOOOl to the contract which extended "theperiod ofperformance for labor services from seven (7) months to twelve (12) months ofservice." This resulted in a total performanceperiod underthe contract of"l February 2015 to 31 January 2016." The total fixed-price ofthe contractwas adjusted upward to $144,595.20. (R4, tab 3 at 1) 4. On 26 January 2016, the CO executed Modification No. P00003 which exercised an option to extend contractual services from 1February 2016to 31 July 2016. The fixed-price ofthe contract was increased to $203,142.80. (R4, tab 6 at 1) 5. As awarded, the contract containedAFARS 5152.225-5908, GOVERNMENT FURNISHED CONTRACTOR SUPPORT (MAY 2012), which provided, 

### interalia, thatAustin's employees were entitled to billeting on Camp Alpha as part ofgovernment-furnished contractor support (R4, tab 1at 10). Also incorporated into the contractby reference was FAR 52.212-4, TERMS AND CONDITIONS-COMMERCIAL ITEMS (MAY 2014) (id. at 14). Finally, the contract also incorporated byreference DFARS 252.225-7041, CORRESPONDENCE IN ENGLISH (JUN 1997), which stated: The Contractor shall ensure that all contract correspondence that is addressed to the United States Government is submitted in English orwith an English translation. (R4, tab 1 at 14)

26. On 28 November 2015, the CO forwarded a cure notice to Austin, in which she stated in pertinentpart:

(R4, tab 10) 1. You are notified that the Government considers your failure to perform contract H92237-15-C-7004 in accordance with the Performance Work Statement (PWS) a conditionthat is endangeringperformance ofthe contract. Therefore, unless this condition is cured within 10 days afterreceipt of this notice, the Governmentmay terminate for default under the terms and conditions ofthis contract. 2. On 25 November2015 the SOJTF-A Contracting Officer was notified that Austin Logistic Services Co. has been failing to meet the requirement in accordance with (IAW) the PWS. IAW the PWS the following issues needto be corrected within 10 days after receipt ofthis notice. A. Section 4paragraph 1of the PWS; The contractor shall provide (18) MWRworkers.
B. Section 5paragraph 7; The Contractoris responsible for all immigration and visarequirements associated with bringing Third Country Nationals into Afghanistan. 3. Please acknowledge receipt ofthis letter in writing and state what action is beingtaken to cure the delinquency.

7. On 4 December 2015, Austin responded to the cure notice with a "TCN [Third Country Nationals] Mobilization & DemobilizationActionPlan." It indicatedthat it would resolve the TCN visaproblem by hiring new service employees from Uganda. (R4, tab 11) The CO approved Austin's "Plan ofAction" on 11 December 2015; she stated further that ifAustin failed "to implementthe attached Plan ofAction this contract may be terminated for default" (R4, tab 13). 8. On 20 May 2016, LTC ChristopherC. Bresko, the ChiefofStaffat Camp Alpha, notified Austin in writing that its representatives were denied access to the base "effective immediately" (R4, tab 14). Austin's access to the base was not subsequently restored (tr. 23).

39. On the 24 May 2016, Elijah T. Felton, an Air Force CO, issued a stop work orderto Austin underthe contract (R4, tab 15). Austin did notperform any further work underthe contract and did not submit invoices for the months ofJune and July 2016 (R4, tabs 7, 16).2 The extended contractual term expired on 31 July 2016 (finding 4). 10. On 7 December2016, the Board docketed Austin's appeal filed with the Board on 6 December 2016 as ASBCA No. 60916, in which it claimed $66,820 under the contract (ex. G-1 at 1, 8). However, as ofthat time, the record demonstrates that Austin had not filed its claim with the CO (R4, tab 19 at 1 ). Accordingly, on 6 January 2017, the government moved to dismiss ASBCANo. 60916 for lack of jurisdiction, Austin responded to the government's motion, contending that it "brought up the settlement issue, however [the CO] neverreplied to any ofmy emails." However, Austin never asserted that it filed a claim with the CO. Accordingly, we find thatAustin did not file a claim withthe CO priorto initiating the above-mentioned appeal. The Boardheld the motion in abeyance pending a decision on the merits. 11. On 12 January 2017, Austin subsequently filed its claim with the CO (R4, tab 19 at 1). The claim was forwarded by an unnamed project manager on behalfofAustin's president and CEO, Mr. Ismail, under Mr. Ismail's name. The claim encompassed three pages: a cover letter; a chart containing five claim items: "Invitation," "Work Permit/License for Worker," "Visa for Workers," "Living Facility for Workers," and "Transportation"; and an unidentified foreign language document. The total amount ofthe claimwas $66,820. Austin provided no backup or substantiation for any ofthe five discrete claim items. (R4, tab 20 at 1-3) However, it subsequently submitted atranslation ofthe foreign language documentwhich statedthat it was a lease agreement for an 8room, 160 square meter apartment for 6 months for $7,400 rent per month whichtotaled $44,400 (R4, tab 21). The latter amount was stated in Austin's claim as reflectingthe "LivingFacility for Workers" (R4, tab 20 at 2). This represented the first instance when Austin informed the CO that it had provided a "living facility for workers" connected with this contract (R4, 

### passim). The original foreign language document and the translation were both undated (R4, tab 20 at 2, tab 21).3
12. In a final decision issued on 2 February 2017, the CO denied Austin's claim in its entirety. He wrote, in pertinentpart: a) On January 12, 2017 you submitted your claim. Your claim contained a contract on page three that was not translated into English (Attachment 1 ). OnJanuary 15, 2017

2 Austin submitted 16 invoices under the contract and was paid in full for its work (R4, tabs 7, 16). 3 The contract itselfprovided that Austin's workers were entitled to billeting on Camp Alpha (finding 5). 4

### you were emailed by CaptJonathan Yap stating the contract provided needed to be translated. On January 16, 2017 you provided atranslated contract for renting an apartment for 6 months (Attachment 2). This translation did not state the dates ofthe rental. Your contract did not provideproofof when the apartment was rented. b) On January 12, 2017, you stated in the same email you submittedyour claim, "Sir, the Afghan Government does not give any receipt for Visa and Work Permit/License." (Attachment 3) On January 23, 2017 Contact Specialist BrentRobinson contacted the Ministry ofForeign Affairs for the Afghanistan Government at phone # 

### 0093 (0) 20 2100372. A representative stated that the Government does provide receipts. (R4, tab 22 at 1) 13. On 8February 2017, Austin appealed the CO's final decision. The Board docketed the protective appeal as ASBCA No. 61052; its factual basis is the same as that in ASBCA No. 60916 which was neverpresented to the CO. 14. After filing its appeal with the Board, Austin forwarded an email to the CO in which it stated that "the Apartment lease started from 6 Dec 2015 to 6 May 2016" (R4, tab 23 at 1 ). Austin subsequently forwarded a second lease agreement in a foreign language with the dates "7 Oct 2016" and "7 May 2016" appearing in the right-hand corner. In addition, the "$44400" and "$7400" were handwritten at the bottom ofthe first paragraph, along with the date "7 May 2016." (App. supp. R4, tab 4) 15. Austin was asked to provide a translation ofthis document pursuant to DFARS 252.225-7041 (supp. R4, tab 6 at 1; finding 5); however, Austin refused to provide any further translations (supp. R4, tab 6 at 1 ). 16. On 2 May 2017, Austin forwarded a "List ofIncurred Cost" to the Air Force (supp. R4, tab 2 at 1 ). The list contained four items: "ApartmentLease," "4 Security Guards for Workers," "Cook," and "Watchman." Each item was priced in monthly unit prices which totaled $64,800. (App. supp. R4, tab 3 at 1-2) Aside from the belatedly-provided untranslated lease, Austin provided no substantiation for its "incurred costs" (tr. 33). In its email of7 May 2017, Austin stated that it had "sent all the documents related to this appeal" (supp. R4, tab 3 at 1).

5DECISION The AirForce has moved to dismiss this appeal for lack of jurisdictionbecause Austin never submitted a written claim with a sum certain to a CO priortothe appeal being filed. Under the ContractDisputes Act (CDA), 41 U.S.C. §7103, the government contends, the lack ofawritten claimpresented to the COprecludes the Board from havingjurisdiction to considerthis appeal. (Gov'tmot. at 1) We agree. The Board's jurisdictionunderthe CDA is dependent upon a contractor'sprior submission ofa proper claim to a CO for a decision. 41 U.S.C. § 7103(a); 

### LaelAlSahab & 

### Co., ASBCA No. 58346, 13 BCA 135,394. As we found that Austin failed to submit a claim to the COpriorto initiatingthe appeal (finding 10), we lackjurisdiction to entertain the appeal. 

### ASBCA No. 61052 Pertaining to the subsequent claim that was submittedto the CO for a final decision (and which reliefwas ultimately denied), we conclude that we havejurisdiction overthis appeal.
It it is undisputed that Austin was paid for all the work which it performed (finding 9). Regarding the claim which it forwarded to the CO, as well as its belatedly-submitted "List ofIncurred Cost," Austin has provided no substantiationto support its claim. The contract itselfprovided that Austin's employees were entitledto billeting on Camp Alpha (finding 5). Moreover, the translated lease which it ultimately provided had no dates and was otherwise vague and unspecific. Its belated submission ofa second untranslated lease agreement did not comply with the contractual requirements to provide documents in English. As our appellate court held in 

### Lisbon Contractors, Inc. v. UnitedStates, 828 F.2d 759, 767 (Fed. Cir. 1987): [T]he claimantbears the burden ofproving the fact ofloss with certainty, as well as the burden ofproving the amount of loss with sufficient certainty so that the determination ofthe amount ofdamages will be more than mere speculation. Austin has failed to meetthis burden. Therefore, we deny its appeal in ASBCA No. 61052.

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### CONCLUSION The appeal in ASBCA No. 60916 is dismissed for a lack of jurisdiction; the appeal in ASBCA No. 61052 is denied. Dated: 9 January 2018

I concur 

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RICHARD SHACKLEFORD Administrative Judge Acting Chairman Armed Services Board ofContractAppeals MICHAEL T. PAUL AdministrativeJudge Armed Services Board ofContract Appeals

I concur

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# ___ OWEN C. WILSON AdministrativeJudge 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 ASBCANos. 60916, 61052, Appeals of Austin Logistic Services Company, rendered in conformance with the Board's Charter. Dated:

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