ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of --

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

Under Contract No. SPE5E8-14-M-4256 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

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ASBCA No. 60222 

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 THE GOVERNMENT'S 

MOTION TO DISMISS OR TO STRIKE 

This appeal arises from the alleged deemed denial by the contracting officer 

(CO) of a claim seeking payment under a purchase order (PO). The government 

moves to dismiss the appeal for lack of jurisdiction and other grounds, or alternatively, 

to strike portions of the complaint. Since the Board determines that appellant failed to 

submit a claim to a CO, the government's motion is granted. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

1. On 12 September 2014, the Defense Logistics Agency Troop Support, 

Hardware (DLA or government), issued PO No. SPE5E8-14-M-4256 (PO 4256) to 

KBAJ Enterprises, LLC t/d/b/a Home Again 1 for the delivery of 5,000 hexagon nut 

1 PO 4256 was issued to "KBAJ ENTERPRISES DBA." In related appeals pending 

before the Board in which POs were issued in the same name, the parties 

clarified that the proper name of appellant in those appeals is "KBAJ 

Enterprises, LLC t/d/b/a Home Again." See KBAJ Enterprises, LLC t/d/b/a 

Home Again, ASBCA No. 59932 et al., 16-1 BCA i! 36,493 at 177 ,835. We 

conclude that the proper name in this appeal is "KBAJ Enterprises, LLC t/d/b/a 

Home Again" and the appeal caption is modified accordingly. 
packs at a total price of $19, 750 (R4, tab 3 at 8, 11 2

; compl. ~ 4; gov't mot. at 2, ~ I). 

Under block 6 of the PO, Ms. Sharon Sax is identified as the "Local Admin" (R4, tab 3 

at 8). Ms. Sax is not the CO who issued the PO. 

2. On or about 3 November 2014, DLA received shipment of the items 

pursuant to PO 4256 from KBAJ (compl. ~ 22; gov't mot. at 4, ~ 15). KBAJ 

subsequently received a partial payment of $5,300 from DLA, corresponding to 1,400 

out of 5,000 packs (comp I.~ 23; gov't mot. at 4, ~ 16). 

3. In an email dated 19 February 2015, CO Matheu C. Wilson (CO Wilson) 

directed KBAJ to submit traceability documentation that proved that the furnished 

items complied with PO 4256's terms (R4, tab 4 at 13-14). CO Jayne Manco 

(CO Manco) was copied on the email (id. at 13). 

4. In a letter dated 26 February 2015, sent via email on the same date to 

CO Wilson and copied to Ms. Sax and CO Manco, KBAJ responded to CO Wilson's 

19 February email (R4, tab 4 at 13 ). KBAJ, among other things, communicated that it 

would not provide any information or documentation to DLA until payment was 

issued (R4, tab 5 at 17). KBAJ concluded the letter by requesting a response from 

DLA on its payment request (id.). 

5. In a 10 March 2015 letter addressed to an individual identified by KBAJ as a 

Procurement Analyst sent via email on the same date, KBAJ sought assistance in 

obtaining acceptance and receiving payment on various items shipped under PO 4256 

and other alleged contracts between the parties (R4, tabs 6-7, 9). Concerning 

PO 4256, KBAJ stated in part: 

As you know I have copied you on other emails 

relative to this award. Therefore, you know we are owed 

$14,220.00 but have agreed to a re-labeling offset of 

$1,212.00, thereby leaving a balance due and owing our 

company in the amount of $13,008.00. This product is 

currently in possession of the Depot at Tracy, Ca. Finally, 

as you know from my prior emails the Depot did make a 

partial acceptance and we received a partial payment of 

$5,530[31. Be that as it may this matter has been 

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

indicated. 

3 This appears to be a typographical error. The parties do not dispute that KBAJ 

received a partial payment in the amount of $5,300 for deliveries made under 

PO 4256 (SOF ~ 2). 

2 
outstanding since October of 2014, with a net balance due 

us in the amount of $13,008.00. 

(R4, tab 7 at 20) 

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

RE: CONTRACT NO. SPE5E8-l 4-M-4256 

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 Dispute Resolution] for 

resolution. Please let us know your position on or before 

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

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. 

(R4, tab 9) COs Wilson and Manco were not copied on the letter. 

7. In a letter dated 22 April 2015, CO Manco responded to KBAJ's 

26 February and 10 March 2015 letters. Concerning the 26 February letter, CO Manco 

reiterated that KBAJ was requested to provide adequate traceability documentation, 

and failure to comply with the request would be deemed as non-compliance with 

PO 4256's terms (R4, tab I 0 at 25). Concerning the I 0 March letter, CO Manco 

communicated that acceptance and payment under PO 4256 and other POs issued to 

3 
KBAJ were under the purview of the contracting office and that failure to provide 

adequate traceability could lead to possible termination of the POs (id.). 

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

proceed under ADR in PO 4256 and other POs. The letter does not mention or 

reference KBAJ's 21April2015 letter. (R4, tab 11) 

9. On 24 September 2015, KBAJ filed its notice of appeal to this Board, 

appealing "the Deemed Denial of the Contracting Officer, SHARON SAX of [DLA]" 

of its "repeated requests for a written decision as why final payment. .. was not 

tendered." 

DECISION 

DLA's motion raises several grounds for dismissing the appeal and we begin 

with its contention that no proper claim was submitted to the CO for a final decision 

because the submission of a claim is a jurisdictional prerequisite for the Board under 

the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. CCIE & Co., 

ASBCA Nos. 58355, 59008, 14-1 BCA ii 35,700 at 174,816. DLA argues that 

KBAJ' s 21 April 2015 letter is insufficient as a claim because it lacks enough detail to 

inform the CO of an assertion of a demand for payment and the underlying basis. 

DLA also argues that the letter's request for ADR is a contract administration matter. 

DLA alleges that the CO's 24 April 2015 letter, in response to the 21 April letter, 

rejected KBAJ's ADR request but did not invoke the CDA disputes process because it 

was not a final decision and did not foreclose KBAJ an opportunity to receive 

payment. (Gov't mot. at 15-16) KBAJ did not submit a response. 

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 for a decision. 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 
As the proponent of our jurisdiction, KBAJ bears the burden to establish 

jurisdiction by a preponderance of the evidence. CCIE & Co., 14-1BCAii35,700 

at 174,816. "The facts supporting jurisdiction are subject to our fact-finding upon a 

review of the record." Id. KBAJ's notice of appeal did not attach or indicate a 

specific document that serves as its claim in this appeal. However, KBAJ's complaint 

alleges that it "sent out a final demand letter dated April 21, 2015, requesting full 

payment or submission of the matter to [ADR]" (compl. ii 49). 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 4256 (SOF iiii I, 6). KBAJ's notice of appeal to the Board alleges that 

Ms. Sax is a CO, but a review of the record does not substantiate that allegation. 

Therefore, KBAJ has not established that its 21 April letter was submitted directly to a 

co. 

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, it is apparent that 

KBAJ intended to resolve its dispute with her. Prior to its 21 April submission, KBAJ 

received a 19 February 2015 email from CO Wilson that requested traceability 

documentation in connection with PO 4256 (SOF ii 3). KBAJ subsequently responded 

to CO Wilson's email and copied CO Manco, demanding payment before submitting 

any documentation (SOF ii 4). Therefore, KBAJ was aware of the identities of the 

pertinent COs yet elected to submit its 21 April letter to Ms. Sax and request a 

decision from her. 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); 

Bruce E. Zoeller, ASBCA No. 55654, 07-1BCAii33,581at166,347 (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 neither 

pursued nor reasonably expected a decision from a CO through its 21 April 

submission. Based on the foregoing, KBAJ has not satisfied the CDA's submission 

requirement, depriving the Board of jurisdiction over its appeal. 4 

4 We need not address alternative grounds for dismissal and to strike portions of the 

complaint raised in DLA's motion. 

5 
CONCLUSION 

We dismiss the appeal for lack of jurisdiction. The government's motion is 

granted. 

Dated: 22 November 2016 

I concur 

'MARK ~4d- N. STEMPLER 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

~~ MARK A. MELNICK 

Administrative Judge 

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. 60222, 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