ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of--

Washington Star Construction Company 

Under Contract No. W9 IJA4-12-C-7131 

APPEARANCE FOR THE APPELLANT: 

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APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 60644 

Mr. Jaweed Alami 

Managing Director 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

MAJ Deidre K. Baker, JA 

Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE PEACOCK ON THE GOVERNMENT'S 

MOTION TO DISMISS FOR LACK 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, prior to the filing of the 

appeal. We grant the motion. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

1. On 5 July 2012, the government awarded Contract No. 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) District building and Central Unit Headquarters in Kabul Province in Afghanistan 

(R4, tab 1 at 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 

of Afghani (AFN) 46,089,930 for completion of 50% of the 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 of the contract by $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% of the 

project (R4, tab 8), and by voucher dated 16 August 2013, the government paid appellant 

the invoice amount (R4, tab 10). In correspondence dated 4 November 2013, appellant 
submitted an invoice described as "Final Payment" for AFN 25,831,477.58 which also 

included the following: 

(R4, tab 14) 

Release of Claims: Know all men by these present[], in 

consideration of the premise [sic] and sum of AFN 

94,966,372.58 of which AFN 69,134,895.00 has been paid, 

and a balance due of AFN 25,831,477.58 is to be paid by the 

United Sates Government under the above noted contract, the 

undersigned contractor does release and discharge the 

Government, its officers, agents and employees, of and from 

all liabilities, obligations and claims whatsoever in law and 

equity arising out of or by virtue of said contract, except 

specified claims in stated amounts, or in estimated amounts 

when the amounts are not susceptible of exact 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 of 4 November 2013 

(R4, tab 16). 

6. On 24 June 2016, appellant emailed its notice of appeal to the Board, 

requesting processing by the Board of its attached letter indicating it had provided 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 performed the extra work 

but never received 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 lacks jurisdiction because appellant never submitted 

a claim in a sum certain to the CO. The government included the name and email of the 

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's name and email address to appellant (Bd. corr. file). 

8. Appellant responded to the government's motion by correspondence dated 

16 August 2016, titled, "Objection motion to dismiss ASBCA: 60644." Appellant stated, 

"our company was waiting for the modification and add amount of the $144,000 on the 

contract, we are still waiting, therefore, it was the contracting officer mistake not send the 

modification." (Syntax in original) 

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9. On 6 October 2016, the Board received an email sent from appellant to 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 against the 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's jurisdiction depends on the submission of a 

claim to the CO, followed by a written CO's final decision or a "deemed denial" of 

the claim. Where the claim is greater than $100,000, it must also be certified in 

accordance with the CDA to be considered a claim. 41 U.S.C. § 7103(b ); FAR 2.101; 

Bizhan Niazi Logistic Services Company, ASBCA No. 59205, 14-1 BCA ii 35,703 at 

174,827 (citing Taj Al Safa Company, ASBCA No. 58394, 13 BCA ii 35,278 at 173,158). 

Appellant, as the proponent of the Board's jurisdiction, must establish 

that it submitted a written claim for payment to the CO prior to filing this appeal. 

United Healthcare 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 or written assertion by 

one of the contracting parties seeking, as a matter of right, the 

payment of money in a sum certain, the adjustment or 

interpretation of contract terms, or other relief arising under 

or relating to the contract.. .. A voucher, invoice, or other 

routine request for payment that 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), if it 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 or with 

any particular words, but it must be in writing and provided to a CO, with "clear and 

unequivocal statement[s] that gives the [CO] adequate notice of the basis and amount of 

the claim." Contract Cleaning Maintenance, Inc. v. United States, 811 F.2d 586, 592 

(Fed. Cir. 1987). 

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There is no evidence in the record indicating that appellant submitted a claim to 

the CO before filing this appeal on 24 June 2016. Appellant has failed to meet its burden 

to establish the Board's jurisdiction, 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, of the contractor's 6 October 

2016 claim in accordance with 41 U.S.C. § 7104. 

Dated: 8 November 2016 

I concur 

/~~~~~ Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

RJCHARDSHACKLEFORD 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 

• It appears appellant submitted a claim to the CO on 6 October 2016, subsequent to the 

filing of this appeal (SOF ,-r 9), but that filing is of no significance in this appeal. 

Under 41 U.S.C. § 7103(f)(2), the CO is required to issue a decision on any 

submitted claim of more than $100,000 within 60 days of receipt or notify the 

contractor of the time within which a decision will be issued. If appellant 

disagrees with the CO's decision, it has 90 days from the date of receipt of the 

decision to appeal to this Board. 41 U.S.C. § 7104(a). Alternatively, it has 

12 months from receipt of the CO decision to bring an action in the United States 

Court of Federal 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 

contractor to appeal to the Board or bring an action in the court on a "deemed" 

denied basis. 

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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. 60644, Appeal of 

Washington Star Construction Company, rendered in conformance with the Board's 

Charter. 

Dated: 

5 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals