ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeals of

-- ) ) SuodorAl-Khair Co

- SAKCO for General Trading) ASBCANos. 59036, 59037 ) Under ContractNo. W91GY0-08-C-0025 )

APPEARANCE FORTHEAPPELLANT: Mr. Ahmed S. Najm Owner

APPEARANCES FORTHE GOVERNMENT: Raymond M. Saunders, Esq. Army ChiefTrial Attorney Erica S. Beardsley, Esq.

Trial Attorney

OPINION BYADMINISTRATIVEJUDGE MELNICK ONTHE GOVERNMENT'S MOTIONTO DISMISS FORLACK OF JURISDICTION

ASBCANo. 59036 is an appeal from the contracting officer's (CO's) 29 October 2013 decision denying appellant's demand for payment for delivered air conditioning units and an unpaid invoice. ASBCANo. 59037 is an appeal from the
same decision, which also asserted a government demand for payment for incurred damages. The government moves to dismiss both appeals for lack of jurisdiction.

STATEMENT OF FACTS (SOF) FORPURPOSES OF THEMOTION
1. On 1May2008,the Joint Contracting Command-Iraq/Afghanistan (Army or government) awarded ContractNo. W91GY0-08-C-0025 (contract) to SuodorAl-Khair Co

- SAKCO for General Trading (SAKCO or appellant) for the design and construction ofbarracks and classroom buildings at the Baghdad Police College in Baghdad, Iraq (R4, tab 1at 1-4). Construction included, among other things, the installation ofair conditioning units in buildings (R4, tab 1at 11). The total contract awardprice was $7,860,000 (R4, tab 1at 3).

2. The contract incorporated Federal Acquisition Regulation (FAR) clause 52.233-1, DISPUTES (JUL2002) (R4, tab 1 at 33).

3. On 2 February 2010, CO Theresa M. Hess (CO Hess) issued a final decision terminating the contract "fordefault in its entirety." Notwithstanding that the termination was in the "entirety,"the final decision statedthat SAKCO remained obligatedto deliver a specific number ofair conditioning units by 16 February 2010. (R4, tab 20) The final decision was subsequently incorporated into ModificationNo. P00002, dated 2 February 2010, and the unilateral modification, now stating it was apartial termination, established that the delivery ofthe air conditioning units would cost $263,120 under the contract (R4, tab 21).

4. On 15 February 2010, CO Hess issued another final decision terminating the contract for default in its entirety. The termination removed the requirement for delivery ofthe air conditioning units underModification No. P00002 and stated that the government would no longer accept any delivered units. (R4, tab 26) The final decision was subsequently incorporated into unilateral Modification No. P00004, dated 15 February 2010 (R4, tab 25).

5. On 18 February 2010, CO Hess issued a "Notification ofDemand for Payment" of$65,763.13 from SAKCO for uncorrected and incomplete contractwork. The government asserted that incurred costs due to corrective repairs amounted to $151,129.87. SAKCO was liable for $65,763.13

- the difference between the cost of correctingthe work and the government's withholding ofpreviously requested payments underthe contract. (R4, tab 27)

6. The record contains a document dated 2 March 2010, ostensibly signedby COHess, convertingthe 18 February 2010 demand for payment notice into a government claim for $65,763.13. The document asserted it was a "final contracting officer decision" and included the contractor's appeal rights as prescribedunder FAR 33.211. There is no evidence ofwhen orifthe document was received by SAKCO. (R4, tab 29)

7. By email dated 5 April 2012, SAKCO contacted Ms. Joanne M. Guild, contract specialist for the Army Contracting Command

- Reachback Division, requesting assistance in receiving payment for the air conditioning units under Modification No. P00002 (R4, tab 30). By email dated 19 April 2012, SAKCO contacted CO Joan F. Wysoske, Chiefofthe Army Contracting Command

- Reachback Closeouts, requesting payment for the air conditioning units totaling $263,120 (R4, tab 46).

8. By email dated 1May2012,Ms. Guild provided SAKCO her review ofthe status ofSAKCO's $263,120 paymentrequest. Ms. Guild communicated that the termination ofthe contractunderModification No. P00004 removedthe delivery requirement for the air conditioning units and SAKCO was liable to the government in the amount of$65,762.13 1for damages. (R4, tab 54)

1Although Ms. Guild's .email stated that SAKCO was liable for $65,762.13, this appears to be a typographical error and the amount is $65,763.13 consistent with the amount in the 18 February 2010 notification (SOF 

### ii 5).

29. By email dated 24 September 2013, SAKCO contacted CO Wysoske requesting a status ofInvoice No. 9 and its demand for payment for the air conditioning units. By email on the same date, CO Wysoske responded that the contractwas terminated for default and no payments were due to SAKCO. (R4, tab 60)

10. By email dated 30 September 2013, Ms. Guild advised SAKCO that a copy ofthe termination (dated 2 February 2010) had previously been sent on 3 May 2012 and that $65,762.13 in damages were owed to the government (R4, tab 67). By email
on the same date, SAKCOresponded to Ms. Guild's email asking "whyyou are not going to pay us this $65,763.13," and "what about the payment for the A/C" (R4, tab 68).

11. Afterbeing unsuccessful in persuading Ms. Guild, SAKCO again contacted CO Wysoske, requesting her assistance by email dated 18 October 2013. By email on the same date, CO Wysoske replied that she would review the contract file but "[i]f there was a contracting officer's final decision in 2010, we will need significant information to decide to overturn that decision." (R4, tab 74)

12. By email dated 21 October 2013, an attached document characterizedby SAKCO as a report2 was submittedto CO Wysoske providing the basis for the payment amounts SAKCO sought (R4, tabs 75, 76). The document indicated that SAKCO soughtpayment for Invoice No. 9 in the amount of$72,077.33 for an alleged approved progress payment (R4, tab 76 at 1-3 3). The document also indicated that the incurred costs for the air conditioningunits were $343,460, although COHess valued the units at $263,120 (id.). 4 The document concluded by requesting CO Wysoske to "now evaluate the damages wehave on this contract and howmuch we have due payment did not getpay," and was signed by Mr. Ahmed S. Najm, SAKCO's Regional Manager (id. at 8). The document did not contain a ContractDisputes Act (CDA), 41 U.S.C. §§ 7101-7109, certification.

13. Byemail dated 22 October 2013, CO Wysoske notified SAKCO that a decision was being written regarding its claim (R4, tab 80).

2 While the document attached to the email was referred to by SAKCO as its report, by email dated 22 October 2013, SAKCO identified it as its claim to CO Wysoske (R4, tab 83). 3 Citations to this tab are to the Bates-numberedpages. 4 A 3 February 2010 email between SAKCO and CO Hess showed SAKCO disputing CO Hess' intenttopay $263,120 for the air conditioning units as SAKCO contendedthatthe amount due was $343,460 (R4, tab 76 at 2-3, tab 22 at 9).

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### 14. On 29 October 2013, CO Wysoske issued her final decision asserting that "[a]fter a review ofthe contract file, the Government has determined that [SAK.CO] is not owedpayment ofany amount. The Governmenthas further determined that [SAK.CO] owes [the government] $65,763.13 (plus interest and fees) to coverthe unpaid balance ofthe cost ofrepairs for damages incurred." (R4, tab 87 at 5) The decision provided a statement offacts in which CO Wysoske found that the "last e-mail correspondence between the contractor and the contracting officer located in the contract file is dated February 21, 2010." The decision does not mention a 2 March 2010 final decision. The decision included the contractor's appeal rights as prescribed in FAR 33.211. (R4, tab 87 at 4, 5)

15. On 26 November 2013, SAK.CO timely appealed from the CO's 29 October 2013 decision. The Board docketed ASBCANo. 59036 for the denial of SAKCO's monetary claim, and ASBCA No. 59037 for the government's monetary claim.

16. In its 13 August 2014 order, the Board directed SAK.CO to provide a copy ofits certified claim that was the subject ofthe 29 October 2013 final decision, or otherwise show cause as to why ASBCA No. 59036 should not be dismissed for lack of jurisdiction.

17. In response to the Board's order, SAKCO submitted a copy ofits claim on 2 September 2014. The claim is the same document that SAK.CO submitted to CO Wysoske on 21October2013 (SOF**~** 

### 12) except it included a CDA certification and was dated 2 September 2014.

18. On 8 September 2014, the government moved to dismiss ASBCA Nos. 59036 and 59037 for lack of jurisdiction.
19. The Board's 9 September 2014 orderprovided SAKCO 30 days from the date ofthe orderto submit a response to the government's motion. The Board's 14 October 2014 orderprovided SAK.CO until 31 October 2014 to submit a response orthe Board intended to decide the motion without further comment from the parties. No response was received by the Board.

DECISION
ASBCA No. 59036

A prerequisite ofthe Board's exercise of jurisdiction over an appeal under the CDA is the submission ofaclaim to the CO for a decision. 41 U.S.C. § 

### 7103; 

### M Maropakis Carpentry, Inc. v. UnitedStates, 609 F.3d 1323, 1327 (Fed. Cir. 2010). The CDA does not define the term "claim"; however, the FAR defines a claim as "a

4written demand orwritten assertion by one ofthe contractingparties seeking, as a matter ofright, thepayment ofmoney in a sum certain, the adjustment or interpretation ofcontractterms, or otherreliefarising under orrelating to the contract." FAR2.101. When submitting a sum certain claim in excess of$100,000to the CO, the CDArequires a contractorto certifythat:
(A) the claim is made in good faith; (B) the supporting data are accurate and complete to the best ofthe contractor's knowledge and belief;

(C) the amountrequested accurately reflects the contract adjustment for whichthe contractorbelieves the Federal Government is liable; and

(D) the certifier is authorized to certify the claim on behalfofthe contractor.

41 

# u.s.c. § 7103(b)(l).

In moving to dismiss this appeal for lack of jurisdiction, the government contends that SAK.CO failed to submit a certified claim in a sum certainto the CO. The government argues that SAK.CO's email correspondence and its 21October2013 claim do not state a sum certain, and ifa sum certain claimwas submitted, it lacked the certificationrequired underthe CDA. Moreover, the government contends that the copy ofthe claim submittedby SAK.CO on 2 September2014 to the Board, that included a certification, was dated after the issuance ofthe CO's 29 October 2013 decision and was not submittedto the CO. (Gov'tmot. at 10-11)

SAK.CO has the burden ofestablfshing thatthe Boardhasjurisdiction over its appeal. BaghdadiSwords Co., ASBCANo. 58539, 13 BCAi135,395 at 173,664. Itis apparent that SAKCO submitted two requests to the government seekingpayment

- a demand in a sum certain, as a matter ofright, for $72,077.33 covering the percentage ofwork it alleges it completed and was approved by the government underthe contract; and a demand in a sum certain, as a matter ofright, for $343,460 covering its incurred costs for the air conditioning units (SOF i112). The 3 February 2010 email indicated that theparties were in disagreement overthe costs ofthe air conditioning units afterModificationNo. P00002 was issued, with SAK.CO asserting that it was entitledto $343,460 andthe governmentunilaterally valuingthe units at $263,120 (SOF i112 n.3). See CCIE & Co., ASBCANos. 58355, 59008, 14-1 BCAi135,700 at 174,817 (totality ofthe correspondence between theparties may beexaminedto determine whether claim meets CDA criteria). We first address whether SAKCO's 21 October 2013 submission included one unitary claim or two separate claims, and then whether certificationwas required for any claim. The governmenttreats SAKCO'srequests as one unitary claim. Ifthe requests involve an examination of different operative facts, thenthe requests should be treated as two separate claims.



### 5

### See K-Con BuildingSystems, Inc. v. UnitedStates, 778 F.3d 1000 (Fed. Cir. 2015); 

### Placeway Construction Corp. v. UnitedStates, 920 F.2d 903, 907 (Fed. Cir. 1990) (for purposes ofdetermining whether certification requirement is applicable, ifclaims arise from a common or related set ofoperative facts then a single claim exists). Here, the two demands will involve examination ofa different set ofoperative facts as one demand involves facts concerning money allegedly owed for progress on the constructionprojectpreviously approved by the government, and the other demand involves facts concerning alleged delivered air conditioning units under Modification No. P00002. Thus, we have two separate claims. 

### See CCIE, 14-1BCAii35,700 at 174,817-18 (two separate demands included in one invoice based on different sets of operative facts). Since SAK.CO's claim for $72,077.33 to recover its progress payment does notrequire a certification, we retainjurisdiction overthis portion ofits appeal.

SAKCO's claim seekingpayment for the costs ofthe air conditioning units exceeds $100,000 and requires a certification underthe CDA. This certification is a jurisdictionalprerequisite for this Board. 

### CCIE, 14-1 BCAii 35,700 at 174,817. The complete absence ofa certification deprives the Board of jurisdiction, and the subsequent certification ofthe contractor's claim after an appeal has beentaken is ineffective to cure thejurisdictional defect. 

### WM Schlosser Co. v. UnitedStates, 705 F.2d 1336, 1338 (Fed. Cir. 1983). The 21 October 2013 submission lacks a certification, and nothing in the record shows a certification accompanied SAKCO's demand before this appeal was initiated. Atthe direction ofthe Board, SAK.CO submitted a copy ofits claim for this appeal which contains a certification, but the certification is dated 2 September 2014, well afterthe filing ofthis appeal (SOF ii 17). SAKCO's attempt to correctthe defect with a retroactive certification after initiation ofthis appeal has no legal bearing on the Board'sjurisdiction ofthis appeal. 

### IMSP.C. EnvironmentalEngineering, ASBCANo. 53158, 01-2 BCAii 31,422; 

### CDM International, Inc., ASBCANo. 52123, 99-2 BCAii 30,467. The retroactive certification is ineffective to cure the originaljurisdictional defect. 

### Schlosser, 705 F.2d at 1338. Ifa contractor fails to submit a properCDA claimto the CO, any purported CO's decision on the matter is a nullity. Id. Therefore, we lackjurisdiction to adjudicate the portion ofSAKCO's appeal concerning the air conditioning units.

ASBCANo. 59037
Underthe CDA, a CO's decision "on a claim is final and conclusive and is not subject to reviewby any forum, tribunal, orFederal Government agency, unless an appeal or action is timely commenced." 41 U.S.C. 

### § 7103(g). A contractor may appeal a CO's final decision within 90 days from the contractor's receipt date ofthe decision to an agency board, or alternatively, initiate an action within 12 months from receipt date ofthe decision in the U.S. Court ofFederal Claims. 41 U.S.C. § 7104. The 90-day appeal period for filing an appeal to this Board is statutory and may not be

6

### waived or extended. See Cosmic Construction Co. v. UnitedStates, 697 F.2d 1389, 1390 (Fed. Cir. 1982). Therefore, a prerequisite for this Boardto exercisejurisdiction
over a contractor's appeal is the timely filing ofan appeal. Mansoor International DevelopmentServices, ASBCA No. 58423, 14-1BCAif35,742 at 174,926-27.

SAK.CO timely appealed from CO Wysoske's 29 October 2013 final decision asserting a government claim for $65,763.13 (SOF if 15). However, the government makes two arguments to dismiss this appeal for lack of jurisdiction contending that SAKCO's notice ofappeal was untimely. First, the government argues that SAK.CO cannot prove that the Board hasjurisdiction over its appeal, citing CANVS Corp., ASBCA No. 56347, 08-2 BCA**~** 

### 33,892 for support. In particular, the government contends that a 2 March 2010 final decision asserted the same government claim for $65,763.13, and SAKCO's appeal is filed more than three years after that decision and the termination ofthe contract. (Gov't mot. at 7) Second, the government argues that the 29 October 2013 decision did not vitiate the finality ofthe 2 March 2010 decision
as CO Wysoske was notreconsidering the earlier decision and was merely addressing SAKCO's repeated requests and failure to heedpreviously communicated instructions (id. 

### at 8-10).
Here, it is undisputed that SAK.CO timely appealed from the CO's 29 October 2013 final decision to this Board. However, the government'sposition is that SAK.CO lacks the rightto appeal this decision because SAK.CO failed to appeal, within the CDA's statutorilyprescribedperiods, an earlierpurported 2 March 2010 final decision that asserted the same claim and was based onthe same operative facts
as the 29 October 2013 decision. By arguing that this instant appeal is filed more than three years after the alleged 2 March 2010 decision date, the government argues that the 2 March 2010 decision is final and conclusive, and that the 29 October 2013 decision is ineffective as an assertion ofa government claim.

The CDA requires a CO to "mail or otherwise furnish a copy ofthe decision to the contractor." 41 U.S.C. 

### § 7103(d). FAR 33.21 l(b) further provides that the CO furnish a copy "by certified mail, return receipt requested, orby any other method that provides evidence ofreceipt." Whether the 2 March 2010 document became a final and conclusive decisionrequires the determination ofits effective receipt date by the contractor. The governmentbears the burdento establish the contractor's receipt date. Singleton Enterprises, ASBCA No. 58235, 14-1BCAif35,554 at 174,227; David Grimaldi Co., ASBCA No. 49795, 97-2 BCAif 29,201 at 145,296; Tyrone Shanks, ASBCA No. 54538, 05-2 BCAif 33,069 at 163,892. The government's reliance on CANVS is misplaced because CANVSinvolved aparty having the burdentoprovethat it was a contractorunderthe CDA to establish the Board'sjurisdiction over its appeal, which is not an issue in this instant appeal.

7The government has not met its burden. Nothing in the record shows SAK.CO
everreceived a 2 March 2010 decision. Norhas the government alleged that SAK.CO did receive a copy. Further, CO Wysoske's 29 October 2013 final decision failed to mention orreference any 2 March 2010 decision (SOF**~** 14). Accordingly, we cannot conclude that a 2 March 2010 final decision was ever sent, much less became final and conclusive. Since SAKCO has timely appealed from CO Wysoske's 29 October 2013 final decision, we havejurisdictionto adjudicate ASBCA No. 59037.

CONCLUSION

The government's motion is granted in part in ASBCA No. 59036. We have jurisdiction overthe portion ofSAKCO's appeal with regard to its demand for progress payment for $72,077.33. Since SAKCO's demand for payment for the air conditioning units is over $100,000 and lacked a CDA certification before this appeal
was initiated, we dismiss thatportion ofthe appeal for lack of jurisdiction.

The government's motion is denied in ASBCANo. 59037.

Dated: 14 April 2015

I concur 

### 4--p // /

# /~~iif9~ Administrative Judge Acting Chairman Armed Services Board ofContractAppeals

8

# ;zg~· MARK A. MELNICK Administrative Judge Armed Services Board ofContractAppeals

RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContractAppealsI certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCANos. 59036, 59037, Appeals of SuodorAl-Khair Co

- SAK.CO for General Trading, rendered in conformance with the Board's Charter.

Dated:

9 JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals