ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of

-- ) ) Rawaat Algaidaa Co. ) ) Under ContractNo. W91GF5-07-M-3125 ) APPEARANCE FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 59735

Ms. Gaidaa H. Farj

Owner/Manager Raymond M. Saunders, Esq.

Army ChiefTrial Attorney MAJ Michael G. Pond, JA

Trial Attorney OPINION BYADMINISTRATIVE JUDGE YOUNGER ONTHE GOVERNMENT'S MOTIONS TO DISMISS FORLACK OF JURISDICTION In this appeal regarding a contractto furnish supplies in Iraq, the Army has filed two motions to dismiss for lack of jurisdiction, asserting in both that appellant Rawaat Algaidaa Co. (Rawaat) did not submit a claim to the contracting officer. We grant the motion and dismiss the appeal. STATEMENT OF FACTS FORPURPOSES OF THE MOTIONS 1. Effective 28 July 2007, the Army awarded ContractNo. W91GF5-07-M-3125 (the contract) to Al Hujaz Company (Al Hujaz) to supply miscellaneous electrical parts (R4, tab 1 at 2-3). The address for Al Hujaz is specified simply as Balad, Iraq 

### (id. at 1 ). Only Al Hujaz is identified as the contractor. There is no indication on the face ofthe contractthat Rawaat was a party to the instrument (id.). 2. ByModificationNo. POOOOl effective 24 August 2007, the government terminated the contract "dueto vendor, Al-Hujaz unable to fulfill the requirements and non-compliancy to the terms/conditions ofthe contract. This is in agreement ofthe parties." (R4, tab 4 at 1) 3. The government thereafterreprocured the requirement from Anixter UKLtd. as ContractNo. W91GF5-07-M-3190 (R4, tab 8 at 1). That contract was completed successfully and paid in full (R4, tab 9). 4. By email dated 11 December 2014, Rawaat filed a notice ofappeal, asserting that it was awarded the captioned contract and had delivered copper insulation wires but had notbeenpaid. The Board thereupon docketed the appeal.

### 5. By correspondence to the Boardthe next day, Rawaat asked the Boardto direct the contracting officerto issue a final decision (Bd. corr. file). 6. The government did not file an answer. Instead, by date of20 January 2015, moved to dismiss for lack of jurisdiction. The government stipulated for purposes ofthe motion only that it awarded the contract to Rawaat (gov'tmot. at 2). The government argued that the Board lackedjurisdiction because appellanthad never submitted a claim to the contracting officer (id. 

### at 3). The government also sought a stay ofproceedings pending a decision on the motion, as the issue of jurisdiction is dispositive (id. 

### at 5). 7. By date of20 February 2015, the government filed a second motion to dismiss for lack of jurisdiction, together with a motion to stay proceedings. The government argued in this second motion that the appeal should be dismissed because Al Hujaz was the original contractor, not Rawaat. DECISION "[O]ur [ContractDisputes Act]jurisdiction extends only to appeals by contractors." CBIServices, Inc., ASBCA No. 34983, 88-1 BCA,20,430 at 103,337. Under41 U.S.C. § 7104(a), only a "contractor" may appeal to the Board. The definition ofa "contractor" is set out in 41 U.S.C. 

### § 7101(7), whichprovides that "[t]he term 'contractor' means aparty to a Federal Government contract other than the Federal Government." We have given effectto this statutory limitation in multiple contexts. E.g., Binghamton Simulator Co., ASBCANo. 59117, 14-1BCAiJ35,715 (dismissing subcontractor's appeal for lack ofevidence ofsponsorship by contractor); CBIServices, 88-1BCA,20,430 at 103,337 (holding thatthe Board lacked jurisdiction over appeal by purported assignee); Sheppard'sInterior Construction Co., ASBCANo. 45902, 97-1BCA,28,744 at 143,471, ajf'd, 152 F.3d 947 (Fed. Cir. 1998) (table) (holdingthat substitution offormer owner ofcontractor liquidated in bankruptcy would defeatjurisdiction). As the proponent ofourjurisdiction, Rawaat bears the burden ofproving by a preponderance ofthe evidence that it is the "contractor" within 41 U.S.C. § 7101(7). Onthis record, Rawaat has failed to do so. On its face, the contract identifies only Al Hujaz as the contractor, with no mention ofRawaat (statement 1). Modification No. 

### POOOOl, by which the contract was terminated, refers to the ''vendor, Al-Hujaz" (statement 2). Otherthan uncorroborated assertions by its owner/manager (statement 4), the record contains nothing in any way supporting a contention that Rawaat was ever the contractor. We accordingly grantthe government's motion to dismiss the appeal for lack of jurisdiction. Given this disposition, we deny as moot the government's motion to

2dismiss for failure to submit a claim to the contracting officer. We also deny as moot the government's motion for a stay ofproceedings. CONCLUSION The government's motion to dismiss for lack of jurisdiction is granted. The government's motionto dismiss for failure to submit a claim tothe contracting officer, and the government's motion for a stay ofproceedings, are denied as moot. The appeal is dismissed for lack of jurisdiction. Dated: 19 February 2016

I concur

# /~~ MARKN. STEMPLER Administrative Judge Acting Chairman Armed Services Board ofContract Appeals ALEXANDERYO Administrative Judge Armed Services Board ofContractAppeals

I concur

CKLEFORD A ministrative Judge Vice Chairman Armed Services Board ofContractAppeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCA No. 59735, Appeal ofRawaat Algaidaa Co., rendered in conformance with the Board's Charter. Dated:

3 JEFFREYD. GARDIN Recorder, Armed Services Board ofContract Appeals