ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of-- Washington Star Construction Company Under ContractNo. W9IJA4-12-C-7131 APPEARANCE FOR THE APPELLANT: ) ) ) ) )

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 60644

Mr. Jaweed Alami

Managing Director Raymond M. Saunders, Esq.

Army ChiefTrial Attorney MAJ Deidre K. Baker, JA

Trial Attorney OPINION BYADMINISTRATIVE JUDGE PEACOCK ON THE GOVERNMENT'S MOTION TO DISMISS FORLACK OF JURISDICTION The government moves to dismiss this appeal for lack of jurisdiction, arguing that no "cognizable" claim was submitted to a contracting officer (CO) pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. 

### §§ 7101-7109, priortothe filing ofthe appeal. We grantthe motion. STATEMENT OF FACTS (SOF) FORPURPOSES OF THE MOTION 1. On 5 July 2012, the government awarded ContractNo. W91JA4-12-C-7131 (contract), in the amount of$1,897,160.17, to Washington Star Construction Company (appellant) to construct buildings and provide upgrades for an Afghan National Police (ANP) Districtbuilding and Central Unit Headquarters in Kabul Province in Afghanistan (R4, tab 1at 1-3). The Notice to Proceed was issued on 14 July 2012 (R4, tab 2). 2. By invoice dated 6 November 2012, appellant requested payment in the amount ofAfghani (AFN) 46,089,930 for completion of50% ofthe project (R4, tab 3). The requested amount was paid to appellant by voucher dated 30 November 2012 (R4, tab 4). 3. Modification No. POOOOl, effective 27 April 2013, added T-Walls, a guard tower and upgrades on the project, and increased the price ofthe contractby $56,950.17 (R4, tab 5 at 1 ). 4. By correspondence dated 22 July 2013, appellant submitted an invoice to the government for AFN 23,044,965 for payment marking the completion of75% ofthe project (R4, tab 8), and by voucher dated 16 August 2013, the governmentpaid appellant the invoice amount (R4, tab 10). In correspondence dated 4 November 2013, appellantsubmitted an invoice described as "Final Payment" for AFN 25,831,477.58 which also included the following:

(R4, tab 14) Release ofClaims: Know all men by these present[], in consideration ofthe premise [sic] and sum ofAFN 94,966,372.58 ofwhich AFN 69,134,895.00 has been paid, and a balance due ofAFN 25,831,477.58 is to be paidby the United Sates Governmentunder the above noted contract, the undersigned contractor does release and discharge the Government, its officers, agents and employees, ofand from all liabilities, obligations and claims whatsoever in law and equity arising out oforby virtue ofsaid contract, except specified claims in stated amounts, or in estimated amounts when the amounts are not susceptible ofexact statement by the contractor, as follows: None.

5. By voucher dated 30 December 2013, the government made a payment of AFN 25,831,477.58 to appellant (R4, tab 15). A contract completion statement (DD 1594) was signed 7 January 2014, reflecting a completion date of4 November 2013 (R4, tab 16).
6. On 24 June 2016, appellant emailed its notice ofappeal to the Board, requesting processingby the Board ofits attached letter indicating it hadprovided a quote of$142,000 for extra work on the contract and had been told a modification would be issued adding $144,000 to the contract. Appellant contends it performedthe extra work but neverreceived a modification. The Board docketed the matter as ASBCA No. 60644. By email dated 28 June 2016, appellant submitted the same document again, and it was accepted as appellant's complaint. 7. On 9 August 2016, the government moved to dismiss the appeal for lack of jurisdiction, asserting that the Board lacksjurisdictionbecause appellantnever submitted a claim in a sum certain to the CO. The government includedthe name and email ofthe CO in a footnote in its motion (gov't mot. at 5 n.1). By email dated 11 August 2016, the government again provided the CO'sname and email address to appellant (Bd. corr. file). 8. Appellantrespondedto the government's motion by correspondence dated 16 August 2016, titled, "Objection motion to dismiss ASBCA: 60644." Appellant stated, "ourcompany was waiting for the modification and add amount ofthe $144,000 on the contract, we are still waiting, therefore, it was the contracting officer mistake not send the modification." (Syntax in original)

29. On 6 October 2016, the Board received an email sent from appellantto the CO, copying the Board and government counsel, attaching what was titled, "Certified Claim for ASBCA: 60644." This submission repeated the same language regarding appellant's quote of$142,000, the promise of$144,000, and the CO's failure to provide a modification after it had performed the work. This document also included a claim certification. DECISION The CDA states, "Each claim by a contractor againstthe Federal Government relating to a contract shall be submitted to the contracting officer for a decision." 41 U.S.C. §7103(a)(l). The Board'sjurisdiction depends on the submission ofa claim to the CO, followed by a written CO's final decision or a "deemed denial" of the claim. Where the claim is greaterthan $100,000, itmust also be certified in accordance with the CDAto be considered a claim. 41 U.S.C. §7103(b); FAR2.101; BizhanNiaziLogisticServices Company, ASBCANo. 59205, 14-1 BCA

### ii 35,703 at 174,827 (citing TajAlSafa Company, ASBCA No. 58394, 13 BCA

### ii 35,278 at 173,158). Appellant, as the proponent ofthe Board'sjurisdiction, must establish that it submitted a written claim for paymentto the CO priorto filing this appeal. UnitedHealthcare Partners, Inc., ASBCA No. 58123, 13 BCA

### ii 35,277 at 173,156. Although the CDA does not define the term "claim," it is defined at Federal Acquisition Regulation (FAR) 2.101: Claim means a written demand orwritten assertion by one ofthe contractingparties seeking, as a matter ofright, the payment ofmoney in a sum certain, the adjustment or interpretation ofcontract terms, or other reliefarising under or relating to the contract..

.. A voucher, invoice, or other routine request for paymentthat is not in dispute when submitted is not a claim. The submission may be converted to a claim, by written notice to the contracting officer as provided in 3 3.206(a), ifit is disputed as to liability or amount or is not acted upon in a reasonable time. There is no requirement that a "claim"be submitted in any particular form orwith any particularwords, but it must be in writing andprovided to a CO, with "clear and unequivocal statement[s] that gives the [CO] adequate notice ofthe basis and amount of the claim." Contract CleaningMaintenance, Inc. v. UnitedStates, 811 F.2d 586, 592 (Fed. Cir. 1987).

3There is no evidence in the record indicating that appellant submitted a claim to the CO before filing this appeal on 24 June 2016. Appellanthas failed to meet its burden to establish the Board'sjurisdiction, and therefore the appeal must be dismissed.* CONCLUSION The government's motion is granted. This appeal is dismissed without prejudice to a timely appeal from the CO's denial, or deemed denial, ofthe contractor's 6 October 2016 claim in accordance with 41 U.S.C. § 7104. Dated: 8November 2016

I concur

# /~~~~~ Administrative Judge Acting Chairman Armed Services Board ofContract Appeals Administrative Judge Armed Services Board ofContract Appeals
I concur

RJCHARDSHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

•It appears appellant submitted a claim to the CO on 6 October 2016, subsequent to the filing ofthis appeal (SOF 

### ,-r 9), but that filing is ofno significance in this appeal. Under41 U.S.C. § 7103(f)(2), the CO is required to issue a decision on any submitted claim ofmore than $100,000 within 60 days ofreceipt or notify the contractor ofthe time within which a decision will be issued. Ifappellant disagrees with the CO's decision, it has 90 days from the date ofreceipt ofthe decision to appeal to this Board. 41 U.S.C. § 7104(a). Alternatively, it has 12 months from receipt ofthe CO decision to bring an action in the United States Court ofFederal Claims. 41 U.S.C. § 7104(b)(l), (3). Should the CO fail to issue a decision within the required time period, 41 U.S.C. § 7103(f)(5) authorizes the contractorto appeal to the Board orbring an action in the court on a "deemed" denied basis.

4I certifythatthe foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCANo. 60644, Appeal of Washington Star Construction Company, rendered in conformance with the Board's Charter. Dated:



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