ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of--

The Adamant Group for Contracting and 

General Trading 

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Under Contract No. W91QEK-04-W-4987 ) 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 60316 

Mr. Bassim Ali 

Owner 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

MAJ Bruce L. Mayeaux, JA 

CPT Harry M. Parent III, JA 

Trial Attorneys 

OPINION BY ADMINISTRATIVE JUDGE MELNICK ON THE GOVERNMENT'S 

MOTION FOR SUMMARY JUDGMENT 

In this appeal, The Adamant Group for Contracting and General Trading 

(Adamant) seeks payment for cement that was the subject of a 2004 contract with the 

United States Army. The government correctly observes that Adamant's claim is 

time-barred. Accordingly, summary judgment is granted to the government. 

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 

The following facts are uncontroverted. 

On 27 September 2004, the United States Army Contracting Command-SW A 

awarded the firm-fixed-price contract referenced above to Adamant (R4, tab 1). Adamant 

was to deliver 650 tons of bulk cement to LSA Anaconda, along with a 30-ton silo, and 

receive payment of $85,550 ($81,250 for the cement and $4,300 for the silo) (R4, tab 1 

at 1-2). Adamant delivered the silo and invoiced the government $4,300 for it on 

5 October 2004 (R4, tabs 2-3). The government's representative, ILT David Hamilton, 

executed a DD Form 250 noting receipt on that date (R4, tab 2). On 13 October 2004, 

Adamant's owner, Mr. Bassim Ali, emailed ILT Hamilton that he had not yet received 

payment for the silo and that he would visit ILT Hamilton the next day. On 14 October, 

IL T Hamilton responded that the matter had "been submitted to contracting" and that 

Mr. Ali "need[ed] to go see contracting ILT Turner." (R4, tab 6 at 2) 
Nearly nine years later, on 25 September 2013, Mr. Ali contacted Ms. Joan Wysoske, 

Chief, Reachback Closeouts of the United States Army Contracting Command-Rock Island, 

requesting help on an open contract, saying he had not received payment. Subsequent 

emails continuing into 2015 informed Mr. Ali that information about the contract could not 

be located. (Compl., attachs.; R4, tabs 5-6, 8, 10-13) 

On 23 July 2015, Mr. Mark Paulson, a Reachback Division Contract Specialist, 

notified Mr. Ali he had been assigned to the case and reiterated the need for information. 

On 27 July, Mr. Ali provided to the government an invoice dated 5 October 2004 for 

650 tons of cement in the amount of $81,250, and an undated DD Form 250 for the same 

product and price, both bearing lLT Hamilton's name as the purported recipient. (R4, 

tab 11) The government disputed those documents, and by email dated 18 August 2015 

Mr. Paulson informed Mr. Ali that the invoice would not be paid (R4, tabs 12-14). In an 

email to Mr. Paulson dated 20 September 2015, Mr. Ali complained about the "frozen 

payment" of his invoice and requested Mr. Paulson ask lLT Turner, who Mr. Ali previously 

identified as the contracting officer (R4, tab 12 at 2), to address the issue (R4, tab 13 at 1-2). 

By email dated 7 November 2015, Mr. Ali filed a notice of appeal with the Board. On 

24 November he filed a complaint stating that he received the silo payment but was "still 

looking for the Bulk Cement payment." The complaint attached Mr. Ali's 5 October 2004 

invoice and DD Form 250. 

DECISION 

The government seeks summary judgment because Adamant failed to submit a 

claim to the contracting officer within six years of its accrual, as required by the 

Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. Under the CDA, the Board's 

jurisdiction is dependent upon Adamant submitting a written claim to the contracting 

officer, followed by a decision or deemed denial. 41 U.S.C. § 7102-7105; Taj Al Safa 

Co., ASBCA No. 58394, 13 BCA ~ 35,278. Though not a condition of jurisdiction, 

the CDA also requires the claim to be submitted within six years after its accrual. 

41 U.S.C. § 7103(a)(4); Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 

750, 757 (2016); Sikorsky Aircraft Corp. v. United States, 773 F.3d 1315, 1320 (Fed. 

Cir. 2014). The government correctly declines to suggest there is no claim. Indeed, 

after the government stated on 18 August 2015 that Adamant's invoice for the cement 

was rejected, Adamant complained in writing on 20 September to Mr. Paulson about 

the government's refusal to pay and requested that the matter be forwarded to 

1 LT Turner, who it apparently believed was the contracting officer. See FAR 2.101 

(a voucher or invoice may be converted to a claim through written notice to the 

contracting officer); CCIE & Co., ASBCA Nos. 58355, 59008, 14-1 BCA ~ 35,700 

(subsequent queries seeking payment of an invoice converts a routine request for 

payment into a claim). Claims submitted to the contracting officer's primary contact, 

and that are reasonably calculated to be received by the contracting officer for 

decision, meet the submission requirements. Neal & Co. v. United States, 945 F.2d 

2 
385, 388-89 (Fed. Cir. 1991); Heritage Reporting Corp., ASBCA No. 50173 et al., 

98-2 BCA ii 29,996 at 148,351 (submission of a claim must be reasonably calculated 

to be received by the contracting officer to decide). Thus, Adamant notified the 

contracting officer's contact in writing on 20 September 2015 that it was converting its 

invoice to a claim and expected it to be forwarded to the contracting officer. 

Accordingly, satisfactory evidence exists that Adamant submitted a claim. 

Acknowledging the Board's jurisdiction, the question remains whether Adamant's 

claim was timely submitted within six years after its accrual. 41 U.S.C. § 7103(a)(4). 

Summary judgment will be granted on this issue ifthere are no genuine issues as to a 

material fact and the government is entitled to judgment as a matter of law. See Celotex 

Corp. v. Catrett, 477 U.S. 317, 322 (1986). A claim accrues when "all events, that fix the 

alleged liability ... and permit assertion of the claim, were known or should have been 

known." Raytheon Missile Sys., ASBCA No. 58011, 13 BCA ii 35,241 at 173,017 (quoting 

FAR 33.201). "A voucher, invoice, or other routine request for payment that is not in 

dispute when submitted is not a claim." FAR 2.101. However, "[t]he submission may be 

converted to a claim, by a written notice to the contracting officer .. .if it is ... not acted upon in 

a reasonable time." Id. Adamant provided to Mr. Paulson, and attached to its complaint, an 

invoice for 650 tons of cement dated 5 October 2004. Assuming the invoice's authenticity 

for the purpose of this motion, Adamant knew or should have known that it could convert 

the invoice to a claim through a written notice to the contracting officer within a reasonable 

time after it allegedly submitted it. However, the earliest the record shows any 

communication seeking payment other than for the silos is 25 September 2013, nearly nine 

years after the invoice was allegedly submitted, well more than six years after the 

reasonable time necessary to wait before the invoice could be converted to a claim. Indeed, 

Adamant concedes it "did not file a claim ... within six years" (app. opp'n at 1). 

Adamant suggests it was barred from submitting its claim about the cement because 

of the underlying danger of accessing U.S. facilities in Iraq, essentially suggesting the 

statute of limitations should be equitably tolled (app. opp'n at 2; app. reply hr. at 2). The 

CDA's six-year limitation upon the submittal of a claim may be equitably tolled when a 

litigant has (1) been pursuing his rights diligently, and (2) some extraordinary circumstance 

"stood in his way and prevented timely filing." Menominee Indian Tribe, 136 S. Ct. at 755 

(quoting Holland v. Florida, 560 U.S. 631 (2010)); see also Aldridge v. McDonald, 2016 

WL 4709877, at *3-4 (Fed. Cir. Sept. 9, 2016) (applying Menominee and Holland).* 

Adamant has failed to provide any reason it could not submit a claim for the cement as early 

as 2004. It alleges it invoiced for both the silo and the cement on the same date, 5 October. 

* Menominee explained that Holland is a habeas case and that the Court had never held 

its equitable tolling test applied outside that context. Nevertheless, the Court 

applied Holland's tolling test because the claimant tribe could not meet it and did 

not seek a more generous rule. The Court left open whether a stricter test should 

actually apply in nonhabeas cases. Menominee, 136 S. Ct at 756 n.2. 

3 
One invoice was paid and the other was not. Adamant was in email communication with 

lLT Hamilton on 13 and 14 October about the silo payment and was told to contact 

1 LT Turner in contracting. Adamant concedes it communicated with the contracting office 

by email and phone as early as 2005 about the cement payment and was told to contact the 

contracting officer (app. reply br. at 1-2). Given that it was able to communicate with the 

contracting office, there is no reason given for why it could not submit a timely claim for 

the cement. Thus, there is no basis for concluding that Adamant diligently pursued its 

rights, and that some extraordinary circumstance prevented it from submitting its claim. For 

this reason, equitable tolling will not be recognized and Adamant's claim is time-barred. 

CONCLUSION 

The government's motion for summary judgment is granted. 

Dated: 29 November 2016 

I concur 

~~--- Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

4 

2/~_....-~ MARK A. MELNICK 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

RlCHARD 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. 60316, Appeal of The 

Adamant Group for Contracting and General Trading, rendered in conformance with 

the Board's Charter. 

Dated: 

5 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals