ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

Pamir Construction & Logistic Co. ) 

) 

Under Contract No. W91B4M-09-C-7256 ) 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 60673 

Mr. F azil Rahimi 

General Director 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

CPT Sarah E. Park, JA 

MAJ Christopher C. Cross, JA 

Trial Attorneys 

OPINION BY ADMINISTRATIVE JUDGE O'CONNELL ON THE 

GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION 

The government moves to dismiss this appeal for lack of jurisdiction, 

contending that appellant failed to submit a claim pursuant to the Contract Disputes 

Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. We grant the government's motion. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

1. On 10 August 2009, the Department of the Army (Army or government) 

awarded Contract No. W91B4M-09-C-7256 to appellant, Pamir Construction & 

Logistic Co. (PCLC) 1 (R4, tab 1). The contract required PCLC to provide labor and 

materials to perform various construction work, including the construction of four 

"3-0NEX" guard towers and addition of crushed rock, for improvements to a police 

station in Afghanistan (supp. R4, tab 9 at 5 of 7). PCLC was required to complete all 

construction within 90 days of receipt of the notice to proceed (R4, tab 1 at 6), which 

the contracting officer issued effective 22 October 2009. Thus, PCLC was to complete 

work by 20 January 2010 (R4, tab 2). 

2. The record contains a number of emails between appellant and the 

government from October 2009 to May 2011 but there is no request for payment from 

PCLC to the government during this period (R4, tab 3; Bd. corr., app. 28 October 2016 

1 The appeal caption has been modified to reflect the name of the contractor in the 

contract. 
email, attachs., "Gmail - RE_ Meeting W9 l B4M-09-C 7256, Seyad Kheil Police 

Station," "Gmail - RE:_Sayd Kheil Police Station W91B4M-09-C-2-7256"). 

3. On 6 November 2013, a contract specialist emailed PCLC for the purpose of 

closing out the contract. In emails dated 10 November and 13 November 2013, PCLC 

responded that it had purchased materials, but, because no contracting officer's 

representative had been assigned to the project, it had not started work and did "not 

have any Invoice or DD250 form." (R4, tab 4) 

4. In an email to the contract specialist dated 25 November 2013, PCLC 

attached what it characterized as an invoice from a supplier of the alleged materials 

purchased for the construction of the guard towers. Although the invoice contains 

amounts in U.S. dollars ($41,200 and $10,300), it is otherwise not in English and these 

amounts do not match the amounts in the documents appellant submitted to the Board 

on 28 October 2016. (R4, tab 5; see SOF ~ 7) 

5. On 17 December 2013, the contracting officer issued Modification 

No. P00002 to the contract, de-obligating excess funds from the contract and stating 

that performance never started because no contracting officer's representative had 

been on site (R4, tab 7). 

6. On 10 July 2016, PCLC filed its notice of appeal to the Board, seeking 

payment for the "materials and other cost" allegedly incurred in performance of the 

contract. 

7. PCLC's submissions to the Board in response to the government's motion to 

dismiss contain an undated document in which it states "we want to appeal for the 

materials and other cost" and then lists $40,800 for the guard towers, $14,700 for 

gravel, and $15,500 for rebar, and includes what may be support documentation for the 

costs (albeit mostly not in English) (app. 28 October 2016 email, attachs., "Official 

letter.pdf; Connexs Bill.pdf; Gravel Bill.pdf'; "Rebar and Cement Bill.pdf; 

SCAN2346_000.pdf'). While PCLC appears to have corresponded with the 

government by email, there is no evidence that it submitted these documents to the 

government by email or any other method prior to the filing of this appeal. 

DECISION 

The government contends that the Board lacks jurisdiction over this appeal 

because PCLC did not submit a claim to the contracting officer prior to filing this 

appeal. PCLC filed two responses to the government's motion but close examination 

indicated that PCLC's responses pertained to a different appeal pending before the 

Board. The Board provided PCLC another opportunity to respond to the government's 

2 
motion (see Bd. corr., order <ltd. 26 October 2016). By email dated 28 October 2016, 

PCLC submitted a response that included a number of attachments (see SOF ~ 7). 

The Board's jurisdiction under the CDA is dependent upon the contractor's 

submission of a proper claim to a contracting officer for a final decision. 41 U.S.C. 

§ 7103(a); CCIE & Co., ASBCA Nos. 58355, 59008, 14-1BCA~35,700 at 174,816. 

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

follows: 

Claim means 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, the 

adjustment or interpretation of contract terms, or other 

relief arising under or relating to the contract. However, a 

written demand or written assertion by the contractor 

seeking the payment of money exceeding $100,000 is not a 

claim under [the CDA], until certified as required by the 

statute. A voucher, invoice, or other routine request for 

payment that is not in dispute when submitted is not a 

claim. The submission may be converted to a claim, by 

written notice to the contracting officer as provided in 

33.206(a), if it is disputed either as to liability or amount or 

is not acted upon in a reasonable time. 

A claim need not be submitted in any particular format or use any particular wording, 

but it must provide the contracting officer adequate notice of the basis and amount 

of the claim. M Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1328 

(Fed. Cir. 2010). 

As the proponent of our jurisdiction, PCLC has the burden to establish 

jurisdiction by a preponderance of the evidence. CC/£ & Co., 14-1BCA~35,700 

at 174,816. Based on our examination ofthe record and PCLC's submissions, PCLC 

has not met its burden. The record fails to demonstrate that PCLC submitted a claim 

meeting the requirements of FAR 2.101. Even if we were to assume that PCLC 

submitted an invoice to the contract specialist on 25 November 2013 seeking payment 

for the guard towers, the invoice itself is not a claim and there is no evidence in the 

record that PCLC converted this invoice to a claim. PCLC also has not established 

that it ever submitted to the contracting officer the documents attached to its 

28 October 2016 submission, or that it converted these documents to a claim. Because 

PCLC has failed to establish that it submitted a claim to a contracting officer before 

filing this appeal, we lack jurisdiction. 

3 
CONCLUSION 

The government's motion is granted. The appeal is dismissed without prejudice 

to the contractor's submission of a claim in a sum certain to a contracting officer.2 

Dated: 5 December 2016 

I concur 

MARK N. STEMPLEfl / 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

/}11~1)1 {/C~ MICHAEL N. O'CONNELL 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

--tV\ 

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 pecision of the 

Armed Services Board of Contract Appeals in ASBCA No. 60673, Appeal of Pamir 

Construction & Logistic Co., rendered in conformance with the Board's Charter. 

Dated: 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals 

2 If PCLC wishes to file a claim with the contracting officer, it shall so advise 

government counsel and counsel shall provide PCLC with the name and 

address of the cognizant contracting officer. 

4