ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- Zomord Company Under Contract No. H92236-07-P-4330 APPEARANCES FORTHEAPPELLANT: ) ) ) ) )

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 59065

Mr. Casier Fahmee

President Mr. Hussien Fuad Albaldaoei

Manager Col Robert J. Preston II, USAF

Acting AirForce ChiefTrial Attorney CaptEric J. Singley, USAF Sarah L. Stanton, Esq.

Trial Attorneys OPINION BYADMINISTRATIVE JUDGE JAMES ON GOVERNMENT'S MOTION TO DISMISS FORLACK OF JURISDICTION

This appeal arises from the contracting officer's (CO's) 22 March 2013 decision that denied the 5 February 2013 claim ofZomord Company (Zomord) for payment ofthe $150,144 contract price for 1,088 cubic meters of%-inch gravel. On 29 January 2014, the governmentmoved to dismiss this appeal for lack ofContract Disputes Act (CDA) jurisdiction onthe grounds that Zomord did not file its claim within six years after such claim accrued, and did not submit an appeal within 90 days after receipt ofthe CO's foregoing decision. Zomord responded to the motion on 19 February 2014. STATEMENT OF FACTS (SOF) FORPURPOSES OF THE MOTION 1. Effective 3 January 2007, CO Cori J. Duford ofthe "OCF-1 CONTRACTING OFFICE," Balad, Iraq, awarded to Zomord commercial item ContractNo. H92236-07-P-4330 (the contract) for 725 cubic meters (CM3) of%-inch gravel for the price of$100,050.00, to be delivered 23 days after the date ofcontract award, i.e., by 26 January 2007, at Shark Base, ArRamadi, Iraq. The contract included, inter alia, the FAR 52.212-4, CONTRACT TERMS AND CONDITIONS-COMMERCIAL ITEMS (SEP 2005) clause. (Gov'tmot., attach. 1 at 1, 4of13, attach. 4 at 1) 2. By contractModification No. POOOl, effective 5 January 2007, the parties bilaterally modified the contractto increase the gravel quantity by 363 CM3 to 1,088 CM3

### and to increase the contractprice from $100,050.00 to $150,144.00, with no change in the delivery date (gov't mot., attach. 3). 3. Zomord submitted documents into evidence stating that underthe contract it delivered 440 CM3 

### ofgravel on 9 January 2007, 400 CM3

### ofgravel on 13 January 2007 and 248 CM3 

### ofgravel on 18 January 2007 (totaling 1,088 CM3) 

### and on 19 January 2007 it submitted a DD Form 250 invoice for $150,144.00 to OCF-1, which "Tony Bennett" of "SharkBase, Ar

### Ramadi, Iraq" signed for acceptance on 20 January 2007 (app.**resp.~** 

### 3, attachs. 1-2). 4. CO Duford asserts that on 21 January 2007 she sent contract Modification No. P0002 (Mod. 2) to email address zomordco@yahoo.com (gov't mot., attach 4 (Duford decl.)**at~** 

### 4). The record contains no evidence that Zomord received Mod. 2 on or about 21 January 2007, orpriorto respondent's 29 January 2014 motion. 1 

### 5. Mod. 2 is a Standard Form 30, whose block 13D stated that the authority for the modification was "FARPart 12.403(d), FAR [P]art 13.302-4, FARClause 52.212-4(1) (m)." Block 13E stated: "IMPORTANT: Contractor

...is required to signthis document and return 1copies to the issuing office" and block 14 stated: 1. This contract is cancelled in its entirety due to contractor failure to meet the delivery and pricingterms ofthe contract. This is a Termination for Cause, as a No Cost settlement, in accordance with FAR 12.403(c). 2. No services or delivers [sic] were provided under this contract. Block 26 ofthe SF 1449 is therefore decreased

...from $150,144.00 to $0. No payments will be made. The Contractor is not entitled to any payments, and the Government will not seek any payments from the Contractor. 3. This is a final decision; you have the right to appeal under the Disputes clause. Zomord did not sign Mod. 2. (Gov'tmot., attach. 2 at 1) As in effect on 3 January 2007, FAR 12.403(d) was entitled "Termination/or the Government's convenience."

1 

### FAR 33.211, referenced by FAR 12.403(c)(3)(iv) for terminations ofcommercial item contracts, provided: "(b) The [CO] shall furnish a copy ofthe decision to the contractorby certified mail, return receipt requested, orby any other method that provides evidence ofreceipt. This requirement shall apply to decisions on claims initiated by or against the contractor." 2

### FAR 13.302-4, entitled "Termination or cancellation ofpurchase orders,"**~(a)** 

### referred the CO to "FAR 12.403 and 52.212-4(1) or (m) for commercial items"; FAR 52.212-4(1) was entitled 

### "Termination/or the Government's convenience"; and FAR 52.212-4(m) was entitled 

### "Termination/or cause." 6. CO Duford's 21January2007 memorandum for record stated, 

### inter alia: In the case of07-P-4330, the vendor failed to perform/delivery on three separate occasions. Each time he offered some excuse. However, despite repeated messages...advising him how serious we took the contract

...he continued to not perform

....

. . .

After the third missed delivery I made the decision to not prolong the process....

. . .

The USG had not received any material, as such a Termination for Cause was issued

.... (Gov't mot., attach. 2 at 2) 7. The record contains no evidence confirmingthat CO Dufordprovided that 21January2007 memorandum to Zomord priorto respondent'sjurisdictional motion. Respondent submitted no otherevidence to substantiate the CO's statements about her messages to Zomord and Zomord's failure to deliver gravel to Ramadi. 8. Zomord alleges that itneverreceived contract Mod. 2. Zomord's 9 March 2007 email to the OCF-1 CO stated: "[W]ehave completed delivery this contract [07-P-4330] and in attached the invoice." OCF-1 CO "Kelly" wrote to Zomord on 10 March 2007 underthe heading "Contract# 07-P-4330 Ramadi Gravel": "Thankyou for delivering the gravel. Yourpaymenthas been sent out, please allow at least 30 days for paymentto post." (App. resp.**~~** 

### 3-4, attachs. 1, 3 at 2) 9. On 1May 2012 Zomord submitted an email to U.S. Special Operations Command (USSOC) CO Paul S. McClain stating: This is Zomord Co from Iraq. Our company signed Contract # H92236-07-P-4330 for gravel at Camp Ramadi, Iraq. My company completed the delivery on this contract and we have sent voice for the contracting officer and the contracting officer at that time sent me an e-mail told me that this payment will be made within 30 days and no payment for this date. I was try contactthe contracting officerbut no response 3

### about this payment. Ihave contacted SCO [sic] closeout contracts about this and some one gave me your POC. Can you please check in your files about payment this contract? Please help me. Thank you. Considering Zomord's $150,144 invoice of 19 January 2007, "voice" apparently meant "invoice." In this contextthe amount Zomord sought is readily determinable. However, Zomord's submission had no CDA certification. (App.**resp.~** 

### 5, attach. 3 at 1) 10. The 31January2013 email from USSOC's Jonathan H. Katz2 

### to Zomord stated: "Please see the attached letter in response to your uncertified claim on 12 August 2012" (gov't mot., attach. 7 at 5of6). The appeal record does not include any attached letter or 12 August 2012 Zomord claim to which Mr. Katz referred. 11. Zomord's 5 February 2013 email to Mr. Katz stated: First ofall; I know that my company has performed a service for the United States Government representedby the United States Army, and I know that since my company has performed this service, we have the right to get paid for what we did, this is our right as you can see.. I was know when I worked with United States Government which represents this Great Country, I was know that we will not lose even one cent, as long as we have a right, United States will give us ourright, and I was know that no one...can ban me from taking my rights, and I am still know that.. From my side I am ready to provide you with all supporting documents you may need, such as: schedule ofdelivery, purchase receipts, plate numbers oftruck, and e-mail correspondentbetween my company and the customers

.. I beg you to reconsider your decision, and I begyou to cancel the memorandum ofrejection

.. and I am ready to provide you with everything you want and I am sure that you will help me in this matter. Thank you [syntax and punctuation in original] (Gov't mot., attach. 7 at 4-5 of6) The record does not include the decision or the memorandum ofrejection to which Zomord's final paragraph referred.

2 

### The record contains no evidence that Mr. Katz was a CO. 412. Mr. Katz's 5 February 2013 emails told Zomordthat it must certify its claim in accordance withFAR 33.207(a) in order for the governmentto provide a formal decision (gov't mot., attach. 7 at 4 of6). Zomord managerHussein Fuad signed a certification dated 5 February 2013 using the language in FAR 33.207(c) (Bd. corr. ltr. <ltd. 6 December 2013). 13. The 22 March 2013 final decision ofCO Charles E. Bright ofUSSOC denied Zomord's certified 5 February 2013 claim under Contract No. H92236-07-P-4330 in its entirety and notified it ofits right to appeal to the agency board ofcontract appeals or the U.S. Court ofFederal Claims (gov't mot., attachs. 5, 6 at 1-3of7). Zomord admits that it received that decision (app. resp. 

### if 7), but does not identify a date ofreceipt. However, Mr. Katz's 22 March 2013 email forwarding CO Bright's decision appeared on Zomord's 22 and 24 June 2013 emails to Mr. Katz, which stated: "I hope you will re-job my issue on this contract [07-P-4330]" (gov'tmot., attach. 7 at 1of6, attach. 8 at 3 of4). We find that 22 June 2013 was the earliest date in the record showing receipt ofthe CO's decision. 14. From 22 June 2013 to 3 September 2013 Zomord's Hassineen Ahmead and CO Bright exchanged emails regarding Zomord's "payment onthis contract" in which CO Bright statedtoZomord: 3 July 2013 "we are looking into this" 10 July 2013 "We are still workingthis" 13 July 2013 "Wewill provide an update soon" 3 September2013 "We should have an update this week" Mr. Katz's September 2013 emails to Zomord, copied to CO Bright, stated: 6 September2013 "Wethought and were hoping

...to provide you with an update this weekhowever it's going to be sometime next weekwhen you will receive a response from us" 9 September2013 "[CO's decision] is still in effect" On 9 September 2013, however, the CO gave Zomordno notice ofits appeal rights. (Gov't mot., attach. 7 at 1of6, attach. 8 at 1-3 of4; app. resp. 

### iii! I0-25) 15. On 6 December 2013 Zomord appealed to the Board from CO Bright's 22 March 2013 final decision (gov'tmot., attach. 10).

5PARTIES' CONTENTIONS Respondent argues that this appeal must be dismissed on two grounds: (1) Zomord's claim "accrued on 21 January 2007 when the CO notified appellant that the contract had been terminated," but submitted its 5 February 2013 claim more than six years after 21January2007, so that claim failed to complywith the CDA statute of limitations (gov't mot. at 8-11); (2) Zomord received the CO's 22 March 2013 final decision denying its 5 February2013 claim on 22 March 2013 and filed its appeal on 6 December 2013, 259 days later than 22 March 2013, thus failing to complywith the CDA's 90-day appeal requirement in 41 U.S.C. § 7104 (id. at 11-12); and (3) the parties' email exchanges after 22 June 2013 did not negate the finality and conclusiveness ofthe CO's 22 March 2013 decision (id. at 12-15). Zomord argues that it submitted its claim on 1 May 2012 within the six-year CDA statute oflimitations (app. resp. at 8). Zomord further argues that it "triedto convince the [CO] to reconsider his decision" and they were under impression that he would reconsider, pointing to Zomord's 3 and 6 September 2013 emails to the CO requesting an update on the payment andthe CO's 6 September2013 reply to Zomord, which stated, "[w]e thought and were hoping to be able to provide you with an update this week" but it would be the next week instead. Zomard argues that this shows that the CO "was working on the issue and he probablywill reconsiderhis final decision [of] 22 March 2013" (id. at 6, 10). DECISION I. In deciding a motionto dismiss for lack of jurisdictionbased on timeliness, we presumeundisputed facts to be true and subject disputedjurisdictional facts to our fact-finding basedupon a review ofthe record. See RaytheonMissile Systems, ASBCA No. 58011, 13 BCA

### if 35,241at173,016. We address first movant's argument that Zomord's 6 December 2013 appeal to the ASBCA was more than 90 days after itreceived the CO's 22 March 2013 final decision denying its 5 February 2013 claim, so the Board lacks CDAjurisdiction ofthis appeal. To be considered timely, an appeal from a CO's final decision to an agencyboard must be made within 90 days ofreceipt ofthe CO's final decision. 41 U.S.C. § 7104(a). That 90-dayperiod is statutory, andthe Board has no discretion to waive it. Cosmic Construction Co. v. United States, 697 F.2d 1389 (Fed. Cir. 1982). However, a CO's decision is not "final" when such decision is reconsidered. The test for reconsideration ofa CO's decision is whetherthe contractor has presented evidence showing that it reasonably could have concluded that the CO's decision was 6beingreconsidered. See RoyalInternationalBuilders Co., ASBCA No. 42637, 92-1 BCA

## ii 24,684 at 123,134. Reconsideration was found in CP of Bozeman, Inc., dba Maintenance Patrol, ASBCANo. 58533, 13 BCA

## ii 35,452 at 173,855 (after CO issued decision, "a litany of communications

...made it clear [that the contractor] did not considerthe 28 July 2011 memorandum [which gavethe contractorno notice ofits appeal rights] was a final action, and at best made it confusing as to whetherthe government did"). Reconsideration also can occur when a CO's decisionproperly advises the contractor ofits appeal rights, but their subsequent communications lead the contractorreasonably to considerthat such decision was not final. See RoyalInternational, 92-1 BCA

## ii 24,684 at 123,134. We have found that the governmenthas notproven that appellantreceived the CO's 22 March 2013 decision priorto 22 June 2013 (SOF

## ii 13). Accordingly, we are persuadedthat Zomord could reasonably have concluded that the CO was reconsidering his 22 March 2013 decision as early as 22 June 2013 (SOF 

## ii 14). Since finality ofthe CO's 22 March 2013 decision was vitiated by his reconsideration ofthe issues, Zomord's appeal tothis Board on 6 December 2013 (SOF 

## ii 15) was not untimely. Forthe foregoing reasons, we deny respondent's 29 January 2014 motion to dismiss this appeal as untimely with respect to the CDA's 90-day appeal period. II. The CDA statute oflimitations provides: "Each claim by a contractor against the Federal Governmentrelating to a contract.

..shall be submitted within 6 years afterthe accrual ofthe claim." 41 U.S.C. § 7103(a)(4)(A). As ofJanuary 2007, FAR 33.201 providedthe following definition: "Accrual ofa claim" means the date when all events, that fix the alleged liability ofeitherthe Government orthe contractor andpermit assertion ofthe claim, were known or should have been known. Forliability to be fixed, some injury musthave occurred. However, monetary damages need nothave been incurred. A contractor claim not submitted within six years after accrual ofthe claim is beyond the Board'sjurisdictionto adjudicate. See Systems Development Corp. v. McHugh, 658 F.3d 1341, 1345 (Fed. Cir. 2011) (contractor compliance with the six-year statutory time limit onthepresentment ofa claim to a CO is ajurisdictional prerequisite for any subsequent appeal ofthe CO's decision on that claim);Raytheon, 13 BCA

## ii 35,241 at 173,016 (we lackjurisdiction over an appeal from an untimely claim). To determine the date when all events that fix liability and permit assertion ofa claim were known orshould 7have beenknown, one must examine the legal basis ofthe claim. See GrayPersonnel, Inc., ASBCANo. 54652, 06-2 BCA

### ir 33,378 at 165,475. Zomord's 5 February 2013 certified claim soughtpayment ofthe $150,144 contract price for delivery of 1,088 CM3 ofgravel to Ramadi (SOF 

### irir 11-12). Movant contends that Zomord's claim accrued on 21 January 2007 when Mod. 2 terminated the contract and stated that Zomord was "notentitled to any payments" (SOF 

### if 5).3 Such date ofaccrual could beplausible only ifZomord received Mod. 2 on or about 21 January 2007. Zomord denies that it ever received Mod. 2 and the appeal record has no evidence that Zomord received it priorto respondent's 29 January 2014 motion (SOF 

### if 4). Zomord introduced evidence that on 9-10 March 2007 it exchanged emails with an OCF-1 CO who thanked Zomord for the gravel delivered andpromisedpayment within at least 30 days, i.e., about 9 April 2007 (SOF 

### if 8). Ifone uses 9 April 2007 as the earliest date Zomord's claim accrued, six years thereafter was 9 April 2013. Thus, Zomord submitted its 5 February 2013 certified claim more than two months before the CDA statute oflimitations wouldhave expired. Accordingly, we deny respondent's motion to dismiss onthe ground ofthe CDA statute oflimitations. The government's motion is denied. Dated: 10 June 2014

ofContractAppeals (Signatures continued)

3 Mod. 2 is an ambiguous and confusing document (SOF 

### irir 5, 16). IfMod. 2 was thoughtto be a termination for cause, itwas premature because it was issued five days before the contract delivery date (SOF 

### irir 2, 4). Ifintended as a bilateral no cost settlement, it is void for lack ofZomord's signature (SOF 

### ir 5). Ifit was a unilateral convenience termination, it sought to impairZomord's right underthe FAR 52.212-4(m) commercial item convenience termination clause to payment of the percentage ofwork performed, which may have been 100% on 18 January 2007 (SOF 

### if 3). However, resolution ofthese ambiguities is unnecessary to determine when Zomord's claim accrued. 8I concur

Administrative Judge Acting Chairman Armed Services Board ofContractAppeals I concur

RICHARD SHACKLEFORD Administrative Judge 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 ASBCANo. 59065, Appeal ofZomord Company, rendered in conformance withthe Board's Charter. Dated:

9 JEFFREY D. GARDIN Recorder, Armed Services Board ofContractAppeals