ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of --

Kandahar Gravel Supplies and Logistics 

Under Contract No. W91B4L-l l-P-0133 

APPEARANCE FOR THE APPELLANT: 

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APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 60531 

Mr. Asadullah Qureshi 

President 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

CPT Sarah E. Park, JA 

Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE D' ALESSANDRIS ON THE 

GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION 

Appellant seeks review of a 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 of the 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 pursuant to 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) FOR PURPOSES OF THE MOTION 

1. On 25 November 2010, the Army awarded Contract No. W91B4L-l l-P-0133 

(Contract 0133) to appellant, in the amount of 1,750,026 Afghani (AFN), for the 

provision of gravel and other supplies and services at the 43rd Sustainment Brigade at 

Kandahar Airfield in Kandahar, Afghanistan. Performance was to begin 1 December 

2010 and run through 15 January 2011. (R4, tab 4 at 7) 

2. The Army alleges that appellant in fact never commenced performance on 

the contract (gov't mot. at 2). As a result, the Army issued a Notice of Termination 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 of contact between the parties for the 

following four years until appellant contacted the Army, by email dated 

25 October 2015, forwarding an invoice and requesting payment for work it alleged it 

performed under Contract 0133. Thereafter the 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 had been terminated for cause 

and closed out, app"ellant replied that it had a number of documents proving its 

entitlement to payment under the 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 communicated by email 

several times in February 2016. By email dated 9 February 2016, appellant forwarded 

to her a copy of a DD250, Material Inspection and Receiving Report, 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 appellant that the invoice it forwarded listed 

the wrong contract number and an incorrect payment amount and requested appellant to 

submit an invoice for Contract 0133 (R4, tab 14 at 1). Appellant responded not with the 

requested invoice but with a copy of what it alleged was Contract 0133. Appellant's 

version of Contract 0133 contained an award date of 10 January 2010 and payment 

amount of 30,274,702 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 of Contract 0133 (R4, tab 4). 

7. By email dated 26 February 2016, appellant forwarded to the contract 

specialist an undated memorandum for record (MFR) signed by a person identified as 

an Army contracting officer located in Afghanistan. The MFR referenced Contract 

0133 and Invoice No. KG-0061 and stated "I confirm the vendor referenced above 

[appellant] performed, delivering goods and or services and therefore 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 of appeal with the Board. 

8. By letter dated 24 March 2016, the contracting officer at A CC-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 of the information 

provided by appellant (R4, tab 25). 

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9. By email dated 12 April 2016, appellant filed its notice of appeal 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 of Contract 013 3 to appellant 

and referencing a payment amount of 30,274,702 AFN. Appellant also produced an 

email dated 28 February 2011 from the same individual stating "I have forwarded your 

invoice for [Contract 0133] for payment process and you will get the payment within 

30 days" (Bd. corr. dtd. 19 August 2016, attachs.). 

10. Using conversion rates listed on the Department of Treasury website as of 

31December2015,* the dollar value of Invoice No. KG-0061 is $445,871.90. Neither 

the Rule 4 file nor any of the documents submitted by 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 

The Army moves to dismiss this appeal, arguing that the Board lacks 

jurisdiction because appellant failed to file a claim with the contracting officer prior to 

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 of an unpaid invoice, and notes that 

pursuant to FAR 2.101, a routine request for payment that 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 of the Board's jurisdiction, bears the burden of 

proving the Board's subject matter jurisdiction by a preponderance of the evidence. 

Reynolds v. Army & Air Force Exchange Service, 846 F.2d 746, 748 (Fed. Cir. 1988); 

United Healthcare Partners, Inc., ASBCA No. 58123, 13 BCA ~ 35,277 at 173,156. 

Pursuant to the CDA, "[e]ach claim by a contractor against the Federal Government 

relating to a contract shall be submitted to the contracting officer for a decision." 

41 U.S.C. § 7103(a)(l). For contractor claims 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. 

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(A) the claim is made in good faith; 

(B) the supporting data are accurate and complete 

to the best of the contractor's knowledge and belief; 

(C) the amount requested accurately reflects the 

contract adjustment for which the contractor believes the 

Federal Government is liable; and 

(D) the certifier is authorized to certify the claim on 

behalf of the contractor. 

41 U.S.C. § 7103(b). 

Although the CDA does not define the term "claim," the Federal Acquisition 

Regulation (FAR) does: 

FAR 2.101. 

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 

41 U.S.C. Chapter 71, Contract Disputes, 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. 

We need not discuss the government's contention that appellant's submission to 

the contracting officer was an unpaid invoice rather than a claim. Assuming, arguendo, 

that appellant's submission otherwise meets the FAR definition of "claim," a written 

demand seeking the payment of money exceeding $100,000 cannot be a claim under the 

CDA unless it has been properly certified. New Iraq Ahd Company, ASBCA No. 58800, 

14-1BCA~35,479 at 173,953; FAR 2.101. Although appellant's submission to the 

contracting officer sought payment in an amount that exceeds $100,000, the record 

contains no evidence that appellant ever submitted the required certification to the 

contracting officer prior to filing this appeal (SOF ~ 10). Certification "is a jurisdictional 

prerequisite that must be satisfied by the contractor before it may appeal the contracting 

officer's claim denial." Abdul Ahad Khadim Construction Company, ASBCA , 

No. 59206, 14-1 BCA ~ 35,694 at 174,765 (quoting Tefirom lnsaat Enerji Sanayi ve 

Ticaret A.S., ASBCA No. 56667, 11-1 BCA ~ 34,628 at 170,630). While a defective 

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certification does not deprive the Board of jurisdiction, 41 U.S.C. § 7103(b)(3), the 

complete absence of a certification is not a jurisdictional defect that can be corrected and 

therefore dictates dismissal. Al Rafideen Company, ASBCA No. 59156, 15-1 BCA 

~ 35,983 at 175,808. Appellant's failure to submit the required certification to the 

contracting officer is fatal to our jurisdiction and requires dismissal of this 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 

of Contract Appeals 

DA YID D' ALESSANDRIS 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

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. 60531, Appeal of 

Kandahar Gravel Supplies and Logistics, rendered in conformance with the Board's 

Charter. 

Dated: 

5 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals