ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

KBAJ Enterprises, LLC t/d/b/a Home Again ) 

) 

Under Contract No. SPE5EM-14-V-5503 ) 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 60014 

Mr. Joseph Dente 

General Manager, Member and 

Corporate Officer 

Daniel K. Poling, Esq. 

DLA Chief Trial Attorney 

John F. Basiak, Jr., Esq. 

Steven C. Herrera, Esq. 

J. Maxwell Carrion, Esq. 

Trial Attorneys 

DLA Troop Support 

Philadelphia, PA 

OPINION BY ADMINISTRATIVE JUDGE MELNICK ON 

GOVERNMENT'S MOTION TO DISMISS 

This appeal arises from an alleged deemed denial by the contracting officer (CO) 

of appellant's claim seeking payment for delivered items under a purchase order (PO). 

The government moves to dismiss the appeal for lack of jurisdiction, or alternatively, for 

failure to state a claim upon which relief can be granted. Subsequent to the filing of the 

government's motion, the Board, sua sponte, directed the parties to brief whether a sum 

certain claim was submitted to a CO for a decision pursuant to the Contract Disputes Act 

of 1978 (CDA), 41 U:S.C. §§ 7101-7109. In response, the government contends that no 

proper claim was submitted to the CO. Because we conclude that a claim was not 

submitted to a CO, we dismiss the appeal for lack of jurisdiction. 

FINDINGS OF FACT 

1. On 31 July 2014, Defense Logistics Agency Troop Support, Hardware 

(DLA or government), issued unilateral PO No. SPE5EM-14-V-5503 (PO 5503) to 

KBAJ Enterprises, LLC t/d/b/a Home Again 1 (KBAJ or appellant) for the delivery of 

1 The PO was issued to "KBAJ ENTERPRISES DBA." This appeal was filed by 

appellant's representative in the name of KBAJ Enterprises LLC. At the 

Board's direction, the parties clarified that the proper name of appellant in this 
500 weather-resistant neoprene rubber strips for a total price of $4,505 (R4, tab 3 

at 9-132

; compl. ~ 4). The PO contemplated delivery of the quantities by 

10 November 2014 (R4, tab 3 at 13). 

2. Under block 6 of PO 5503, Ms. Sharon Sax is identified as the "Local 

Admin" (R4, tab 3 at 9). Ms. Sax was not the CO who issued the PO. 

3. On 17 September 2014, KBAJ received notice from DLA that 60 of the 500 

shipped items were accepted (comp I. ~ 31; gov't mot. at 3, ~ 16). Two days afterward, 

KBAJ received a partial payment of $540.60 for the accepted items without allegedly 

receiving any information as to why the other shipped items were not accepted (comp I. 

~~ 32-33; gov't mot. at 3, ~ 17). 

4. Between September 2014 and March 2015, KBAJ corresponded with various 

DLA personnel, including Ms. Sax and her supervisor Mr. Jonathan Hampton, who 

identified himself as a Branch Chief for the "Industrial Hardware/Post Award-FHCC" 

division, seeking an explanation as to why DLA withheld payment of $3,964.40, the 

balance corresponding to the 440 items under PO 5503 that DLA did not formally 

accept (R4, tab 4; app. supp. R4, tabs 3, 7). 

5. In a letter dated 21 April 2015 addressed to Ms. Sax, KBAJ stated in part: 

RE: CONTRACT NO. SPE5EM-14-V-5503 

Dear Sharon: 

You are listed as the local administrator of the 

above referenced contract. As you know from our past 

requests we have been attempting to resolve the alleged 

issues associated with this award. To date we have been 

ignored, stonewalled and simply not responded to with 

regard to our attempts to resolve the alleged problems. 

Therefore, pursuant to the terms and conditions of said 

contract we are hereby asking if you would agree to submit 

this matter to [Alternative Disputes Resolution (ADR)] for 

resolution. Please let us know your position on or before 

COB, Friday April 24, 2015. Ifwe do not hear from you 

appeal is "KBAJ Enterprises, LLC t/d/b/a Home Again" (see Bd. corr. gov't ltr. 

<ltd. 9 June 2016, ex. A). The caption in this appeal is modified accordingly. 

2 Citations to the Rule 4 file are to the consecutively-numbered pages unless otherwise 

indicated. 

2 
by that date we will take you[ r] lack of response as a 

refusal to submit the matter to [ADR]. 

Finally, if you are not going to agree to [ADR], then 

please provide us with your written decision as to why you 

are refusing to pay the balance due and owning [sic] under 

this award. We require your decision so that the same can 

be submitted with our claim we intend on filing with the 

Armed Services Board Of Contract Appeals. If we do not 

receive your decision by COB, Friday April 24, 2015, we 

will notify the Board that no decision was received from 

despite our requests for the same. 

We regret we have to take these actions but the 

failure of all offices and employees of the DLA to respond 

in a professional manner to our prior requests have left us 

with no choice. We look forward to your response. Please 

note that by a copy of this request we are notifying some of 

the other individuals of our demands. 

(R4, tab 6) Mr. Hampton and other individuals were copied on the letter (id.). KBAJ 

did not identify any of the individuals as a CO. KBAJ's complaint alleges this 

correspondence is its "final demand letter" (comp I. ~ 4 7). 

6. In a response to, among other things, a 10 March 2016 letter from KBAJ 

allegedly addressed to DLA's Small Business Office, CO Jayne Manco's (CO Manco's) 

22 April 2015 letter informed KBAJ that the contracting office had requested 

traceability documentation for PO 5503 and other POs issued to KBAJ. CO Manco 

communicated that acceptance of delivered items would not occur prior to receipt of 

sufficient documentation evidencing that the items furnished met technical requirements 

under the respective POs. (R4, tab 8 at 23) 

7. In a letter dated 24 April 2015, CO Manco denied KBAJ's request to 

proceed under ADR in PO 5503 and other POs (R4, tab 10). The letter does not 

mention or reference KBAJ's 21 April 2015 letter. 

8. In response to CO Manco's 22 April letter, KBAJ, in a letter dated 

24 April 2015, complained that CO Manco and the contracting office "have been and 

continue to target our business because we have disclosed to you on many occasions 

the issues associated with [the POs issued to KBAJ]" (R4, tab 12 at 29). The letter 

specifically expressed dissatisfaction with CO Manco's handling of matters, including 

3 
but not limited to, alleged failures to provide timely and adequate responses to KBAJ's 

requests for documentation and the CO's recusal (id. at 29-30). 

9. On 28 May 2015, KBAJ filed its notice of appeal to this Board, appealing 

"the Deemed Denial of the Contracting Officers, JONATHAN HAMPTON and 

SHARON SAX" of its request for a written decision. 

DECISION 

DLA filed a motion to dismiss the appeal, arguing that there is no enforceable 

contract between the parties, or alternatively, KBAJ's complaint fails to state a claim 

upon which relief can be granted. Subsequent to DLA's motion, the Board issued an 

order directing the parties to address whether KBAJ submitted a sum certain claim to 

the CO for a decision in this appeal (Bd. corr., order dtd. 1 July 2016). KBAJ did not 

submit a response. In its response, DLA asserted that KBAJ' s 21 April 2015 letter did 

not constitute a CDA claim because it "did not contain sufficient detail to notify the 

contracting officer of the factual allegations upon which this appeal is premised" (see 

Bd. corr., gov't ltr. dtd. 28 July 2016). DLA argues that the 21 April letter did not 

assert a demand for payment nor invoke the CDA disputes process, and CO Manco's 

24 April 2015 letter was not a final decision (id.). 

As the proponent of our jurisdiction, KBAJ bears the burden to establish 

jurisdiction by a preponderance of the evidence. CCIE & Co., ASBCA Nos. 58355, 

59008, 14-1BCAii35,700 at 174,816. "The facts supportingjurisdiction are subject to 

our fact-finding upon a review of the record." Id. A contractor's submission of a 

proper claim to a CO for a decision is a jurisdictional prerequisite for the Board to 

entertain an appeal under the CDA. 41 U.S.C. § 7103(a); CCIE & Co., 14-1 BCA 

ii 35, 700 at 174,816. 

The CDA does not define the term "claim"; however, FAR 2.101 defines a claim, 

in relevant part, as "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." A claim is 

not required to be submitted in any particular form or use any particular wording, but 

must provide to the CO adequate notice of the basis and amount of the claim and request 

a final decision. M Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1328 

(Fed. Cir. 2010). The claim must also be submitted to a CO. To satisfy the submission 

requirement, a contractor can either submit its claim directly to a CO or "to its primary 

contact [with the government] with a request for a final decision of the contracting officer 

and a reasonable expectation that such a request will be honored, and the primary contact 

in fact timely delivers the claim to the contracting officer." Neal & Co., Inc. v. United 

States, 945 F.2d 385, 388 (Fed. Cir. 1991); see also Gardner Zemke Co., ASBCA 

No. 51499, 98-2 BCA ii 29,997. 

4 
KBAJ's notice of appeal did not attach nor indicate a specific document that 

serves as its claim in this appeal. Although KBAJ failed to respond to our order, its 

complaint characterizes its 21 April 2015 letter as a "final demand letter" (finding 5). 

We presume that KBAJ attempts to appeal from an alleged CO's deemed denial of this 

letter. On its face, the 21 April letter is specifically addressed to Ms. Sax, who is 

identified by KBAJ as a local administrator and is also identified as a "Local Admin" 

under PO 5503 (findings 2, 5). The letter also copied Mr. Hampton who is identified 

as a "Branch Chief' in prior correspondence (finding ~ 4 ). KBAJ' s notice of appeal to 

the Board alleges that Ms. Sax and Mr. Hampton are COs, but a review of the record 

does not substantiate that allegation. Therefore, we are unable to conclude that the 

21 April letter was submitted directly to a CO for jurisdictional purposes. 

We next determine whether KBAJ meets the CDA's submission requirement by 

sending a proper claim to a primary contact. Pursuant to Neal, the requirement may be 

met by submitting a claim to the primary contact "with a request for a final decision of 

the contracting officer and a reasonable expectation that such a request will be 

honored." 945 F.2d at 388. While the 21 April letter does expressly request a decision 

from Ms. Sax, even if we were to assume she is a primary contact and the letter 

otherwise meets the requirements of the FAR definition of a claim, the evidence fails 

to establish that KBAJ intended and reasonably expected a decision from a CO. We 

can reasonably infer that, based on statements made in KBAJ's 24 April letter to 

CO Manco, KBAJ was aware that CO Manco was the cognizant CO on matters related 

to PO 5503 and other POs, going so far as requesting her recusal (finding 8). Even 

with this knowledge, KBAJ elected to submit its 21 April letter directly to Ms. Sax. 

See Bruce E. Zoeller, ASBCA No. 55654, 07-1 BCA ~ 33,581 at 166,347 (appellant 

was aware of the CO's identity under the lease, and submitted a claim seeking "a Chief 

Accountable Officer's decision" that failed to establish a submission of a claim to a 

CO under the CDA). Under these circumstances, we conclude that KBAJ intended to 

resolve its dispute with Ms. Sax, or in other words, someone other than the cognizant 

CO at the time. See D.L. Braughler Co. v. West, 127 F.3d 1476, 1481-82 (Fed. Cir. 

1997) (letter styled as a claim with a certification and submitted to the resident 

engineer, who was an authorized representative of the CO, did not meet submission 

requirement because letter sought to resolve matter directly with resident engineer). 

Therefore, KBAJ has failed to prove that it has satisfied the CDA's submission 

requirement. We lack jurisdiction to entertain this appeal. 3 

3 Because we determine that KBAJ' s failure to submit a claim to a CO for a decision 

deprives us of jurisdiction over this appeal, we need not address alternative 

grounds for dismissal raised in DLA's motion. 

5 
CONCLUSION 

We dismiss the appeal for lack of jurisdiction, without prejudice to the 

contractor's submission of a claim to a CO. 

Dated: 22 November 2016 

I concur 

MARK ~#= N. STEMPLER 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

MARK A. MELNICK 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

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. 60014, Appeal ofKBAJ 

Enterprises, LLC t/d/b/a Home Again, rendered in conformance with the Board's Charter. 

Dated: 

6 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals