ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

--
Kandahar Gravel Supplies and Logistics

Under ContractNo. W91B4L-ll-P-0133

APPEARANCE FORTHEAPPELLANT: ) ) ) ) )

APPEARANCES FORTHE GOVERNMENT: ASBCANo. 60531

Mr. Asadullah Qureshi

President Raymond M. Saunders, Esq.

Army ChiefTrial Attorney CPT Sarah E. Park, JA

Trial Attorney

OPINION BYADMINISTRATIVE JUDGE D'ALESSANDRIS ON THE GOVERNMENT'S MOTION TO DISMISS FORLACK OF JURISDICTION Appellant seeks review ofa contracting officer's final decision denying its request for payment for work it alleges it performed on a**contr~ct** with the United States Department ofthe Army (Army) in Afghanistan. The Army has moved to dismiss this appeal, arguing that appellant failed to submit a certified claim to the contracting officer
as required pursuantto the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. Appellant has opposed the motion. We grant the motion and dismiss the appeal.

STATEMENT OF FACTS (SOF) FORPURPOSES OF THEMOTION

1. On 25 November 2010, the Army awarded Contract No. W91B4L-ll-P-0133 (Contract 0133) to appellant, in the amount of 1,750,026 Afghani (AFN), for the provision ofgravel and other supplies and services at the 43rd Sustainment Brigade at KandaharAirfield in Kandahar, Afghanistan. Performance was to begin 1December 2010 and run through 15 January 2011. (R4, tab 4 at 7)

2. The Army alleges that appellant in fact never commencedperformance on the contract (gov'tmot. at 2). As a result, the Army issued a Notice ofTermination for Cause effective 8 January 2011 and a modification dated 28 May 2011 effecting the termination (R4, tabs 5, 8).

3. The record contains no evidence ofcontactbetweenthe parties for the following four years until appellant contactedthe Army, by email dated 25 October 2015, forwarding an invoice and requesting payment for work it alleged it performed under Contract0133. Thereafterthe parties exchanged several emails, also dated 25 October 2015, concerning appellant's request for payment (R4, tab 9 at 3).

### When the Army informed appellant that Contract 0133 hadbeen terminated for cause and closed out, app"ellantreplied that it had a number ofdocuments proving its entitlement topayment underthe contract (id. 

### at 2).

4. Between 25 October 2015 and 2 January 2016, appellant contacted the Army numerous times forwarding documents and seeking information regarding its request for payment (R4, tabs 9-11). By email dated 22 January 2016, the Army Contracting Command in Rock Island, Illinois (ACC-RI) notified appellant that it had received appellant's documents for review (R4, tab 12).

5. Appellant and a contract specialist at ACC-RI communicatedby email several times in February 2016. By email dated 9 February 2016, appellant forwarded to her a copy ofa DD250, Material Inspection and ReceivingReport, dated 20 February 2011, and an invoice dated 12 March 2010 (R4, tab 13 at 1, 4-7). The DD250 identified the contract as Contract 0133 and stated it was for Invoice No. KG-0061, but the invoice appellant submitted was identified as Invoice No. KG-0020 and listed a different contract number, W91B4L-10-P-1030 (Contract 1030). Both the DD250 and invoice number 0020 listed a payment amount of 30,274,702 AFN. (Id. 

### at 4-6)

6. The contract specialist informed appellantthat the invoice it forwarded listed the wrong contract number and an incorrect payment amount and requested appellant to submit an invoice for Contract0133 (R4, tab 14 at 1). Appellantresponded not with the requested invoice but with a copy ofwhat it allegedwas Contract 0133. Appellant's version ofContract 0133 contained an award date of 10 January 2010 and payment amount of30,274,702 AFN (R4, tab 15 at 5), which did not match the award date of 25 November 2010 and payment amount of 1,750,026 AFN appearing in the Army's version ofContract 0133 (R4, tab 4).

7. By email dated 26 February 2016, appellant forwarded to the contract specialist an undated memorandum for record (MFR) signedby a person identified as an Army contracting officer located in Afghanistan. The MFRreferenced Contract 0133 and Invoice No. KG-0061 and stated "I confirm the vendorreferenced above [appellant] performed, delivering goods and or services andtherefore entitled to be paid." The payment amount was listed as 30,274,702 AFN. (R4, tab 20) The record contains no evidence that appellant filed any additional documents with the Army prior to filing its notice ofappeal with the Board.

8. By letter dated 24 March 2016, the contracting officer at ACC-RI issued a final decision denying appellant's request for payment on the basis that no contract existed in the Army's contracting database that matched any ofthe information provided by appellant (R4, tab 25).

29. By email dated 12 April 2016, appellant filed its notice ofappeal with the Board, which we docketed on 13 April 2016. In response to the Army's motion to dismiss for lack of jurisdiction, appellant has produced additional materials not included in the Rule 4 file which it contends support its request for payment. These include an email dated 10 January 2011 from a person identified as an Army contracting officer stating she was forwarding a copy ofContract 0133 to appellant and referencing a paymentamount of30,274,702 AFN. Appellant also produced an email dated 28 February 2011 from the same individual stating "I have forwarded your invoice for [Contract 0133] for paymentprocess and you will getthe paymentwithin 30 days" (Bd. corr. dtd. 19 August 2016, attachs.).

10. Using conversion rates listed on the Department ofTreasury website as of 31December2015,*the dollarvalue ofInvoice No. KG-0061 is $445,871.90. Neither the Rule 4 file nor any ofthe documents submittedby appellant to the Board contain a signed statement from appellant that includes the certification language, in whole or in part, found at 41 U.S.C. § 7103(b) for claims exceeding $100,000.

DECISION

TheArmy moves to dismiss this appeal, arguing that the Board lacks jurisdictionbecause appellant failed to file a claim withthe contracting officerpriorto bringing its appeal to the Board (gov't mot. at 4). The Army characterizes appellant's submission to the Army as a request for payment ofan unpaid invoice, and notes that pursuant to FAR 2.101, a routine request for paymentthat is not in dispute when submitted is not a claim (id.). Alternatively, the government argues that appellant's failure to certify its submission as required by 41 U.S.C. § 7103(b) deprives the Board of jurisdiction (id. at 4-5). Appellant, as the proponent ofthe Board'sjurisdiction, bears the burden of proving the Board's subject matterjurisdictionby a preponderance ofthe evidence. 

### Reynolds v. Army & 

### AirForce Exchange Service, 846 F.2d 746, 748 (Fed. Cir. 1988); 

### UnitedHealthcare Partners, Inc., ASBCA No. 58123, 13 BCA**~** 35,277 at 173,156. Pursuant to the CDA, "[e]achclaim by a contractor against the Federal Government relatingto a contract shall be submitted to the contracting officer for a decision." 41 U.S.C. § 7103(a)(l). For contractorclaims exceeding $100,000, the contractor must certify that:

* At all relevant dates the exchange rate would convert 30,274,702 AFN to a dollar amount exceeding $100,000. 3(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 amount requested accurately reflects the contract adjustment for which the contractorbelieves the Federal Government is liable; and (D) the certifieris authorized to certify the claim on behalfofthe contractor.

41 U.S.C. §7103(b). Although the CDA does not define the term "claim,"the Federal Acquisition Regulation (FAR) does:

FAR2.101. 

### Claim means a written demand or written assertion by one ofthe contractingparties seeking, as a matter of right, the payment ofmoney in a sum certain, the adjustment or interpretation ofcontract terms, orotherrelief arising under orrelating to the contract. However, a written demand orwritten assertion by the contractor seekingthe payment ofmoney exceeding $100,000 is not a claim under 41 U.S.C. Chapter 71, ContractDisputes, until certified as required by the statute. A voucher, invoice, or otherroutine 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), ifit is disputed either as to liability or amount or is not acted upon in a reasonable time.

We need not discuss the government's contentionthat appellant's submission to the contracting officerwas an unpaid invoice ratherthan a claim. Assuming, 

### arguendo, that appellant's submission otherwise meets the FARdefinition of"claim," a written demand seekingthe payment ofmoney exceeding $100,000 cannotbe a claim under the CDA unless it has been properly certified. 

### New IraqAhdCompany, ASBCA No. 58800,**14-1BCA~35,479** at 173,953; FAR2.101. Although appellant's submission to the contracting officer soughtpayment in an amount that exceeds $100,000, the record contains no evidencethat appellant ever submittedthe required certificationto the contracting officerpriorto filing this appeal (SOF**~** 10). Certification "is ajurisdictional prerequisite that mustbe satisfied by the contractorbefore it may appeal the contracting officer's claim denial." 

### AbdulAhadKhadim Construction Company, ASBCA , No. 59206, 14-1 BCA**~** 35,694 at 174,765 (quoting 

### Tefirom lnsaatEnerjiSanayive TicaretA.S., ASBCANo. 56667, 11-1 BCA**~** 34,628 at 170,630). While a defective
4certification does not deprive the Board of jurisdiction, 41 U.S.C. § 7103(b)(3), the complete absence ofa certification is not ajurisdictional defect that can be corrected and therefore dictates dismissal. 

### AlRafideen Company, ASBCA No. 59156, 15-1 BCA**~** 35,983 at 175,808. Appellant's failure to submitthe required certification to the contracting officer is fatal to ourjurisdiction and requires dismissal ofthis appeal.

DECISION

The Army's motion to dismiss this appeal for lack of jurisdiction is granted. The appeal is dismissed without prejudice to appellant submitting a properly certified claim to the contracting officer.

Dated: 6 March 2017

I concur


### J/ // /

# ~k~H Administrative Judge Acting Chairman Armed Services Board ofContract Appeals DAYID D'ALESSANDRIS Administrative Judge Armed Services Board ofContract Appeals

I concur

Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCANo. 60531, Appeal of Kandahar Gravel Supplies and Logistics, rendered in conformance with the Board's Charter.
Dated:

5 JEFFREYD. GARDIN Recorder, Armed Services Board ofContract Appeals