ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Suzan Company ) ) Under ContractNo. W91GF5-l1-M-0043 ) APPEARANCE FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 59817

Ms. Khadija Saeed

Owner/Manager Raymond M. Saunders, Esq.

Army ChiefTrial Attorney CPT Jessica E. Edgell, JA

Trial Attorney OPINION BYADMINISTRATIVE JUDGE D'ALESSANDRIS ON THE GOVERNMENT'S MOTION TO DISMISS FORLACK OF JURISDICTION Appellant Suzan Company (Suzan) seeks paymentpursuantto a purported contract with the United States Department ofthe Army (Army) for sixtrash trucks at $101,000 each, for atotal of$606,000. The Army disputes the existence ofthe contract and moves to dismiss for lack of jurisdiction, or in the alternative for summaryjudgment. Forthe reasons set forth below, we grant the Army's motion to dismiss. STATEMENT OF FACTS (SOF) FORPURPOSES OF THE MOTION 1. On 14 January 2011 1the Army awarded ContractNo. W91GF5-11-M-0043 (contract), in the amount of$606,000, to Suzan for six "New (2009) 4x2 Trash Truck, (8-1Om), Japanese origin" to be delivered to Forward Operating Base Warhorse2 (compl. 

### ii 5, attach. 1).3
2. Suzan subsequently delivered the trash trucks, and submitted invoice 45 on 29 January 2011 (compl. 

### iii! 6-7). Mark Johnson issued and signed a form DD250 receiving report to confirm acceptance ofthe trucks (compl. 

### ii 8, attach. 2). The invoice was submitted to the Defense Finance Accounting Services (DFAS) for paymentthe following day (compl. 

### ii 9).

1 The complaintprovides a date of 14 June 2011; however, the attached copy ofthe purported contract is dated 14 January 2011. 2 The allegations contained in the complaint are assumed to be true for the purpose of this decision. The Army disputes the existence ofthe cited contract. 3 The attachments to the complaint were numbered consecutively by the Board for reference purposes.3. Suzan communicated with the Army and DFAS several times in February 2011 but did not receive paymentbecause the electronic funds transfer information did not match the company name and the manager's name. AfterFebruary 2011, Suzan did not receive any responses from the Army. (Compl. 

### iii! 10-16) 4. On 23 December 2014, Suzan contacted the Army Contracting Command's Reachback Closeouts Division, at Rock Island, Illinois seeking payment ofits January 2011 invoice. The following day the Army responded that it could not make payment because the company name does not match the name on the bank account submitted for payment. (Compl. 

### iii! 17-18, attach. 7) 5. Suzan attempted other communications withthe Army and then on 12 January 2015 Suzan emailedPresident Obama, the contracting officer, and many otherDefense Department employees again seekingpayment (compl. 

### iii! 19-20, attach. 4). 6. On 24 January 2015, Suzan received the 22 January 2015 contracting officer's final decision denying its 12 January 2015 claim (compI. 

### ii 21, attach. 6). The final decision states that the Army has no record ofthe contract number (compI. attach. 9). 7. On 4 February, 2015, Suzan appealed from the contracting officer's final decision to the Board. 8. On 5February 2015, Suzan served its complaint in this appeal. In an attachment to the complaint, following the email addressed to President Obama, Suzan included a certification ofits claim. The claim certification is dated 14 January 2015, but does not indicate that it was sent to the contracting officer, or ifsent, how it was sent. There is no indication that the claim certification was an attachment to the email to President Obama, and the contracting officer. Based upon the 14 January 2015 date ofthe claim certification, it could nothave been an attachment to the 12 January 2015 email to President Obama and the contracting officer. (Compl. attach. 5) 9. In a declaration dated 24 June 2015, Andrea Kalb, the contracting officer for Suzan's claim, and the Chiefofthe Reachback-Closeout Branch, statedthat she did not receive a certification ofthe claim priorto issuing the contracting officer's final decision (Kalb Deel. 

### ii 3). DECISION The Army moves to dismiss this appeal, arguing that the Board lacksjurisdiction first because Suzan's submission constituted a routine request for payment, rather than a claim. If the submission was a claim, the government moves to dismiss because Suzan failed to certify its claim which was in excess of$100,000. Alternatively, the government moves for summary judgmentbecause Suzan did not have a contract with the government. On 23 December 2015, the Board issued an order directing Suzan to respond to the government's motion within 30 days. 2On 2 February 2016, the Board issued an order directing Suzan to respond to the government's 23 December 2015 motion within 21 days. On 24 February 2016 the Board issued an order directing Suzan to respond the government's motion on orbefore 15 March 2016 orto show cause why the Board should notrule on the pending motion without further comment from the parties. Suzanhas notresponded tothe government's motion, orthe Board's orders.
Suzan bears the burden ofprovingthe Board's subject matterjurisdiction by 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 Contract Disputes Act (CDA), "[e]ach claim by a contractor against the Federal Governmentrelating to a contract shall be submitted to the contracting officer for a decision." 41 U.S.C. 

### § 7103(a)(l). In addition, a claim in excess of $100,000 mustbe certified. 41 U.S.C. 

### § 7103(b)(l). Thus Suzan mustprove that it submitted a certified claim for payment ofInvoice No. 45 to the contracting officer in orderto establish this Board'sjurisdiction. Id.; UnitedHealthcare Partners, 13 BCA**~** 35,277 at 173,156-57; KAL ME.I. Mfg. & Trade Ltd. ASBCA No. 40596,**92-1BCA~24,713.** Assuming, butnot deciding, for the purpose ofthis decision, that Suzan's 12 January 2015 email constituted a claim for the purpose ofthe CDA, we grantthe government's motion to dismiss because the claim was not certified. The CDA's requirement that claims over $100,000 be certified: [I]s not a matterwhich canbe waived bythe contracting officer and a decision bythe contacting officer, absent a valid claim, is null andvoid and not appealable pursuantto the Contract Disputes Act of 1978 even though it contains the 'magic language' that it is a final decision and instructions concerning appeal. KAL ME.I. Mfg., 92-1 BCA**~** 24,713 at 123,352. The Boardmay consider evidence outside ofthe pleadings in ajurisdictional motion. See Landv. Dollar, 330 U.S. 731, 735 n.4 (1947). In this appeal, Andrea Kalb issued a declaration asserting that she did not receive a certification ofthe claim priorto issuing the contracting officer's final decision (SOF**~** 9). As noted above, Suzan did not file an opposition to the government's motion and did not challenge Ms. Kalb's statementwith its own declaration. The complaint filed by Suzan with the Board does contain a claim certification, dated 14 January 2015. However, the certification does not indicate that it was ever sentto the contracting officer, or ifit was sent, how it was sent. The certification is not mentioned in the complaint and is included in a group ofemails attached, but not separately numbered oridentified in the complaint. There is no indication thatthe claim certification was an attachmentto the 12 January 2015 email sentto President Obama, the contracting officer, and others. Basedupon the 14 January 2015 date ofthe claim certification, it could nothave been an attachmentto the 12 January 2015 email to the contracting officer. (SOF**~** 8) Thus, we find thatthe certification was notprovided to the contracting officerprior 3to the contracting officer's issuance ofher final decision on 22 January 2015. The fact that a certification subsequently was provided to the Board and the agency cannot cure the lack ofa proper certification. Thoen v. UnitedStates, 765 F.2d 1110, 1116 (Fed. Cir. 1985). Suzan has therefore failed to meet its burden ofestablishing the Board'sjurisdiction. CONCLUSION The Army's motion to dismiss for lack of jurisdiction is granted. The appeal is dismissed withoutprejudice to Suzan submitting a properly certified claim to the contracting officer. Dated: 17 August 2016

# ?~#:~······ MARK N. STEMPLER Administrative Judge Acting Chairman Armed Services Board ofContractAppeals DAVID D'ALESSANDRIS Administrative Judge Armed Services Board ofContractAppeals
I concur

RICHARD SHACKLEFORD Administrative 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. 59817, Appeal ofSuzan Company, rendered in conformance with the Board's Charter. Dated:

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