ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of --

Zomord Company 

Under Contract No. H92236-07-P-4330 

APPEARANCES FOR THE APPELLANT: 

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APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 59065 

Mr. Casier Fahmee 

President 

Mr. Hussien Fuad Albaldaoei 

Manager 

Col Robert J. Preston II, USAF 

Acting Air Force Chief Trial Attorney 

Capt Eric J. Singley, USAF 

Sarah L. Stanton, Esq. 

Trial Attorneys 

OPINION BY ADMINISTRATIVE JUDGE JAMES ON 

GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION 

This appeal arises from the contracting officer's (CO's) 22 March 2013 decision 

that denied the 5 February 2013 claim of Zomord Company (Zomord) for payment of the 

$150,144 contract price for 1,088 cubic meters of%-inch gravel. On 29 January 2014, 

the government moved to dismiss this appeal for lack of Contract Disputes Act (CDA) 

jurisdiction on the 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 of the CO's 

foregoing decision. Zomord responded to the motion on 19 February 2014. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

1. Effective 3 January 2007, CO Cori J. Duford of the "OCF-1 CONTRACTING 

OFFICE," Balad, Iraq, awarded to Zomord commercial item Contract No. 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 of contract award, i.e., by 26 January 2007, at Shark Base, 

Ar Ramadi, Iraq. The contract included, inter alia, the FAR 52.212-4, CONTRACT TERMS AND 

CONDITIONS-COMMERCIAL ITEMS (SEP 2005) clause. (Gov't mot., attach. 1 at 1, 4of13, 

attach. 4 at 1) 

2. By contract Modification No. POOOl, effective 5 January 2007, the parties 

bilaterally modified the contract to increase the gravel quantity by 363 CM3 to 1,088 CM3 
and to increase the contract price 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 under the contract it 

delivered 440 CM3 of gravel on 9 January 2007, 400 CM3 of gravel on 13 January 2007 

and 248 CM3 of gravel 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 

"Shark Base, 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, or prior to 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 "FAR Part 12.403(d), FAR [P]art 13.302-4, FAR Clause 52.212-4(1) (m)." 

Block 13E stated: "IMPORTANT: Contractor ... is required to sign this document and return 

1 copies 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 pricing terms of the 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 of the 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't mot., 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 of commercial item 

contracts, provided: "(b) The [CO] shall furnish a copy of the decision to the 

contractor by certified mail, return receipt requested, or by any other method that 

provides evidence of receipt. This requirement shall apply to decisions on claims 

initiated by or against the contractor." 

2 
FAR 13 .302-4, entitled "Termination or cancellation of purchase 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 of 07-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 confirming that CO Duford provided that 

21January2007 memorandum to Zomord prior to respondent's jurisdictional motion. 

Respondent submitted no other evidence to substantiate the CO's statements about her 

messages to Zomord and Zomord's failure to deliver gravel to Ramadi. 

8. Zomord alleges that it never received contract Mod. 2. Zomord's 9 March 2007 

email to the OCF-1 CO stated: "[W]e have completed delivery this contract [07-P-4330] and 

in attached the invoice." OCF-1 CO "Kelly" wrote to Zomord on 10 March 2007 under the 

heading "Contract# 07-P-4330 Ramadi Gravel": "Thank you for delivering the gravel. 

Your payment has been sent out, please allow at least 30 days for payment to post." 

(App. resp. ~~ 3-4, attachs. 1, 3 at 2) 

9. On 1 May 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 contact the contracting officer but no response 

3 
about this payment. I have 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 context the 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 of all; I know that my company has performed a service 

for the United States Government represented by 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 our right, 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 of delivery, 

purchase receipts, plate numbers of truck, and e-mail 

correspondent between my company and the customers .. 

I beg you to reconsider your decision, and I beg you to cancel 

the memorandum of rejection .. 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 of 6) The record does not include the decision or the 

memorandum of rejection to which Zomord's final paragraph referred. 

2 The record contains no evidence that Mr. Katz was a CO. 

4 
12. Mr. Katz's 5 February 2013 emails told Zomord that it must certify its claim in 

accordance with FAR 33.207(a) in order for the government to provide a formal decision 

(gov't mot., attach. 7 at 4 of 6). Zomord manager Hussein 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 of CO 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 of its right to appeal to the agency board of contract appeals or the 

U.S. Court of Federal 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 of receipt. 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't mot., attach. 7 at 1 of 6, attach. 8 at 3 of 4). We find that 

22 June 2013 was the earliest date in the record showing receipt of the 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 on this contract" in which 

CO Bright stated to Zomord: 

3 July 2013 "we are looking into this" 

10 July 2013 "We are still working this" 

13 July 2013 "We will provide an update soon" 

3 September 2013 "We should have an update this week" 

Mr. Katz's September 2013 emails to Zomord, copied to CO Bright, stated: 

6 September 2013 "We thought and were hoping ... to provide 

you with an update this week however it's going to be 

sometime next week when you will receive a response from 

us" 

9 September 2013 "[CO's decision] is still in effect" 

On 9 September 2013, however, the CO gave Zomord no notice of its appeal rights. 

(Gov't mot., attach. 7 at 1 of 6, attach. 8 at 1-3 of 4; app. resp. iii! I 0-25) 

15. On 6 December 2013 Zomord appealed to the Board from CO Bright's 

22 March 2013 final decision (gov't mot., attach. 10). 

5 
PARTIES' 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 comply with 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 February 2013 claim on 22 March 2013 and filed its appeal on 

6 December 2013, 259 days later than 22 March 2013, thus failing to comply with 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 of the 

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 of limitations (app. resp. at 8). Zomord further argues that it "tried to 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 and the CO's 6 September 2013 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 probably will reconsider his final decision [of] 22 March 2013" (id. at 6, 10). 

DECISION 

I. 

In deciding a motion to dismiss for lack of jurisdiction based on timeliness, we 

presume undisputed facts to be true and subject disputed jurisdictional facts to our 

fact-finding based upon a review of the record. See Raytheon Missile 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 it received the CO's 22 March 2013 final decision 

denying its 5 February 2013 claim, so the Board lacks CDAjurisdiction of this appeal. 

To be considered timely, an appeal from a CO's final decision to an agency board 

must be made within 90 days of receipt of the CO's final decision. 41 U.S.C. § 7104(a). 

That 90-day period is statutory, and the 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 of a CO's decision is whether the contractor has presented 

evidence showing that it reasonably could have concluded that the CO's decision was 

6 
being reconsidered. See Royal International Builders Co., ASBCA No. 42637, 92-1 

BCA ii 24,684 at 123, 134. 

Reconsideration was found in CP of Bozeman, Inc., dba Maintenance Patrol, 

ASBCA No. 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 consider the 28 July 2011 

memorandum [which gave the contractor no notice of its appeal rights] was a final action, 

and at best made it confusing as to whether the government did"). Reconsideration also 

can occur when a CO's decision properly advises the contractor of its appeal rights, but 

their subsequent communications lead the contractor reasonably to consider that such 

decision was not final. See Royal International, 92-1 BCA ii 24,684 at 123, 134. 

We have found that the government has not proven that appellant received the 

CO's 22 March 2013 decision prior to 22 June 2013 (SOF ii 13). Accordingly, we are 

persuaded that 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 of the 

CO's 22 March 2013 decision was vitiated by his reconsideration of the issues, Zomord's 

appeal to this Board on 6 December 2013 (SOF ii 15) was not untimely. 

For the 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 of limitations provides: "Each claim by a contractor against the 

Federal Government relating to a contract. .. shall be submitted within 6 years after the 

accrual of the claim." 41 U.S.C. § 7103(a)(4)(A). As of January 2007, FAR 33.201 

provided the following definition: 

"Accrual of a claim" means the date when all events, 

that fix the alleged liability of either the Government or the 

contractor and permit assertion of the claim, were known or 

should have been known. For liability to be fixed, some 

injury must have occurred. However, monetary damages 

need not have been incurred. 

A contractor claim not submitted within six years after accrual of the claim is 

beyond the Board's jurisdiction to adjudicate. See Systems Development Corp. v. McHugh, 

658 F.3d 1341, 1345 (Fed. Cir. 2011) (contractor compliance with the six-year statutory 

time limit on the presentment of a claim to a CO is a jurisdictional prerequisite for any 

subsequent appeal of the CO's decision on that claim); Raytheon, 13 BCA ii 35,241 at 

173,016 (we lack jurisdiction over an appeal from an untimely claim). To determine the 

date when all events that fix liability and permit assertion of a claim were known or should 

7 
have been known, one must examine the legal basis of the claim. See Gray Personnel, 

Inc., ASBCA No. 54652, 06-2 BCA ir 33,378 at 165,475. 

Zomord's 5 February 2013 certified claim sought payment of the $150,144 contract 

price for delivery of 1,088 CM3 of gravel 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 "not entitled to any payments" (SOF if 5).3 Such date of accrual 

could be plausible only if Zomord 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 prior to 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 and promised payment within at 

least 30 days, i.e., about 9 April 2007 (SOF if 8). If one 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 of limitations would have expired. Accordingly, we deny respondent's motion to 

dismiss on the ground of the CDA statute of limitations. 

The government's motion is denied. 

Dated: 10 June 2014 

of Contract Appeals 

(Signatures continued) 

3 Mod. 2 is an ambiguous and confusing document (SOF irir 5, 16). If Mod. 2 was 

thought to be a termination for cause, it was premature because it was issued five 

days before the contract delivery date (SOF irir 2, 4). If intended as a bilateral no 

cost settlement, it is void for lack of Zomord' s signature (SOF ir 5). If it was a 

unilateral convenience termination, it sought to impair Zomord's right under the 

FAR 52.212-4(m) commercial item convenience termination clause to payment of 

the percentage of work performed, which may have been 100% on 18 January 

2007 (SOF if 3). However, resolution of these ambiguities is unnecessary to 

determine when Zomord's claim accrued. 

8 
I concur 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

I concur 

RICHARD SHACKLEFORD 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 

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. 59065, Appeal of Zomord 

Company, rendered in conformance with the Board's Charter. 

Dated: 

9 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals