ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of - )

)

BCC-UIProjects-ZAAZTC Team JV ) ASBCA No. 62846

)

Under Contract No. W5J9JE-l l-C-0139 )

APPEARANCE FOR THE APPELLANT: Patrick B. Kernan, Esq.

 Kernan & Associates, PLLC

 Washington, DC

APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.

 Engineer Chief Trial Attorney

Rebecca L. Bockmann, Esq.

Michael E. Taccino, Esq.

 U.S. Army Engineer District, Middle East

 Winchester, VA

OPINION BY ADMINISTRATIVE JUDGE PROUTY

The motion to dismiss we decide here centers upon a dispute between two 

companies in Afghanistan which had established a joint venture, known as 

BCC-UIProjects-ZAAZTC Team JV (B-U-Z),1 to perform a contract with the United 

States. After performance of the above-captioned contract (the contract) by B-U-Z, 

one of the companies that made up the venture, Zamarai Ali Ahmad Zada General 

Trading and Construction Company (ZAAZTC)2

, submitted a request for equitable 

adjustment (REA) to the contracting officer (CO), seeking about $4 million for costs 

associated with a differing site condition and the delayed approval of design 

submittals. The REA was denied as lacking substantiation. Nevertheless, shortly 

thereafter, the president of ZAAZTC’s erstwhile partner, Behnam Construction 

Company (BCC), reached out to the CO to inform him that ZAAZTC did not have the 

right to submit claims on behalf of the joint venture and that the CO should only 

consider claims submitted by him. The BCC president’s position, in fact, had the 

virtue of being supported by the text of the joint venture agreement and the fact that 

 1 We refer to the party that brought this appeal as “appellant,” rather than “B-U-Z” as 

we normally would because the government argues that the party advancing 

this appeal is not, in fact, the joint venture. 2 In a bit of advocacy which obscures the identity of the parties to its advantage, 

appellant refers to the joint venture as “ZAAZTC” in its briefing (see app. 

opp’n at 1), despite the fact that ZAAZTC is actually just one member of the 

joint venture – and the minority member, at that. As will be seen, this is telling.
2

the contract was executed on behalf of the joint venture by him. ZAAZTC responded 

to this bombshell by completely ignoring it and submitting a new REA some months 

later which aimed to address substantive problems with the first REA that the CO had 

denied. After this REA was, in turn, denied (for having been presented after final 

payment and because the CO determined that ZAAZTC did not speak for the joint 

venture), ZAAZTC presented the CO with a “settlement agreement” in which 

ZAAZTC and BCC had agreed to split any proceeds of the “claim.”

In the end, notwithstanding the “settlement,” because the claim was not 

submitted by a person with authority to do so on behalf of the joint venture, we find 

that we do not possess jurisdiction. Moreover, even if it had been properly submitted, 

we would have found that it was appealed too late since the claim was denied more 

than 90 days before the appeal to the Board.

FINDINGS OF FACT

I. Preliminaries

A. Joint Ventures are Formed

On April 11, 2010, two Afghan companies, BCC and United Infrastructure 

Projects (UIP), entered into a “teaming agreement.” According to the terms of the 

agreement, UIP was to provide design work for the projects the two worked on 

together, while BCC would perform the actual construction for such projects. 

(Shafique decl. Ex. 1)3

A little more than a year later, on May 20, 2011, BCC entered into a joint 

venture agreement (the JV agreement) with ZAAZTC (R4, tab 27 at 1; see also

Shafique decl. ¶ 2). The purpose of the joint venture was to perform the contract that is 

the subject of this dispute (Shafique decl. ¶ 2); hence, despite being signed on May 20, 

2011, the JV agreement would not become effective until the contract was awarded 

(R4, tab 27 at 1-2). The JV agreement provided that UIP would perform design work 

for the contract and that BCC would perform 60% of the construction work, while 

 3 “Shafique decl.” refers to the declaration of Muhammad Shafique, Managing 

Director of ZAAZTC, which is attached to Appellant’s opposition to the 

government’s motion to dismiss. Appellant also filed exhibits to that 

declaration. We refer to them as “Shafique decl. Ex.__.” Although appellant 

asserts that this arrangement was executed in 2011, (app. opp’n at 2) the 

agreement plainly states “Sunday, April 11, 2010” (Shafique Decl., Ex. 1)

(emphasis added). Moreover, April 11 fell on a Sunday in 2010, but was a 

Monday in 2011, as the government points out in its reply brief (gov’t reply br. 

at 2, n.2).
3

ZAAZTC would perform 40% of it (id. at 2). Accordingly, the proceeds of the contract 

would be similarly split between the parties, 60/40, with BCC paying the 40% to 

ZAAZTC (id. at 3), which implied that BCC would obtain the proceeds from the 

government and then pay ZAAZTC its share. Importantly for the dispute before us, 

paragraph 3.3 of the JV agreement set forth the individual who would represent the 

parties to the government. That paragraph provided: 

Both parties agreed to introduce and authorize Mr. Ahmad 

Tariq Barakzai to sign the contract on behalf of the joint

venture and is authorized to sign solicitations, applicable

amendments, and bind the entire joint venture to its 

obligation under any contract which may result from the

solicitation.

(R4, tab 27 at 4) (emphasis in the original) The same Mr. Barakzai executed the JV 

agreement on the next page as President of BCC. Dr. Wahid Zahed4 executed the 

agreement as Vice President of ZAAZTC. (Id. at 5)

The JV agreement never set forth a name for the entity it created, but the 

“footer” of all five pages of the agreement was captioned “BCC-ZAAZTC - Joint 

Venture Agreement” (R4, tab 27).

B. The Contract is Awarded

The contract was awarded by the United States Army Corps of Engineers (the 

Corps) to “BCC-UIProjects-ZAAZTC Team.” On July 18, 2011, it was executed by 

the government CO; on July 20, 2011, Mr. Barakzai (previously noted as the 

individual specified by the JV agreement) executed the contract as “Team President.”

(R4, tab 4 at 2) The contract was in the amount of $11,625,113 and was for the design 

and construction of an Afghanistan National Police battalion patrol facility in Baghlan, 

Afghanistan (id. at 6). The record does not contain any explanation as to why the CO 

identified the contractor in the contract as the “BCC-UIProjects-ZAAZTC Team,”

instead of the BCC-ZAAZTC JV as referenced in the agreement discussed above, 

 4 In several documents in this appeal, we have seen variations of Dr. Zahed’s name: 

sometimes it is Dr. Wahid Zahedi, as it is in the JV agreement (R4, tab 27 at 5); 

sometimes, Dr. Wahidullah Zahed, such as when he certified the first REA in 

this matter (Shafique decl. Ex. 4 at 5), and there is also Dr. Wahidullah Zhed 

(gov’t supp. br. Ex. 3 at 11). The signature blocks, executed in ink, all include 

the somewhat legible letters “Wahid” enclosed in a partial oval. Sometimes, he 

is referred to as Dr. Wahidullah. Despite the slight differences in the typed 

name, these are all obviously signed by the same person and we will refer to the 

author as Dr. Zahed throughout, for clarity.
4

although we suspect that may have been how the entity identified itself when it bid on 

the contract. In any event, the weight of the evidence indicates that the contractor we 

refer to as B-U-Z was one and the same as the BCC-ZAAZTC Joint Venture 

referenced above, not some other entity that included all three companies as 

signatories to a different agreement.

The contract included many of the usual standard clauses for a contract of its 

type. Of particular relevance to this dispute, the contract included, by reference, the 

July 2002 Disputes Clause found in section 52.233-1 of the Federal Acquisition 

Regulation (FAR) (R4, tab 4 at 11). Relatedly, it included by reference, the provision 

in the Department of Defense Supplement to the FAR (the DFARS) governing REAs, 

DFARS, 252.243-7002 (MAR 1998) (id. at 12). It also included FAR 52.236-2, 

DIFFERING SITE CONDITIONS (APR 2004) (id. at 11).

C. Trouble in Performance

After performance began, appellant alleges that it encountered site conditions 

that differed from what the government had represented. These conditions, according 

to appellant, significantly delayed completion of the contract and significantly 

increased B-U-Z’s costs. (See, e.g., R4, tab 2) In any event, the contract was 

substantially complete by September 7, 2014 (R4, tab 25).

II. Disputes of More Than one Variety

A. The First REA is Submitted in July 2014

On July 17, 2014, Mr. Stephen Southerland5 of Compliance Contracting, LLC, 

sent to the CO a document styled as an REA on the contract (Shafique decl. Ex. 4).6

 

Mr. Southerland asserted in his cover letter that he represented “BCC ZAAZTC JVUIP Team7 on contract administration matters for subject contract” (id. at 1). The 

REA, itself, though requesting 276 delay days and a “net total” of $4,049,494 in 

“claimed” damages, was not particularly detailed and appears to be asserting

entitlement (it had a section titled, “Entitlement”) based upon both delayed approval of 

 5 Mr. Southerland was a claims consultant who, according to his LinkedIn profile, 

provided by the government, had 40 years of experience in government 

contracting, including 15 as a government CO (see gov’t supp. br. Ex. 1).

6 Interestingly, this document is not part of the Rule 4 file, though it is referenced in 

government correspondence (see R4, tab 24) and we have no reason to question 

the authenticity of the version provided with the Shafique Declaration.

7 The contract was not actually with “BCC ZAAZTC JV-UIP Team,” as Mr. 

Southerland wrote but, as noted above, was with “BCC-UIProjects-ZAAZTC 

Team.”
5

design transmittals and a differing site condition (id. at 2-5; see also Shafique decl. ¶¶ 

6-7) (describing bases of REA). One significant problem with this REA is that its “net 

total” of damages is mathematically inconsistent with the numbers that 

Mr. Southerland purportedly used to arrive at this figure on behalf of his client. It 

plainly states that the $4,049,494 is derived by adding $1,532,076 in “quantum meruit” 

damages to $264,960 in “mitigated liquidated damages” to $2,335,790 in extra 

excavation costs8 due to a differing site condition minus $233,332 for grading already 

included in the contract (see Shafique decl. Ex. 4 at 1). If we do the math of 

$1,532,076 + 264,960 + $2,335,790 - $233,332, we arrive at $3,899,494, which is 

$150,000 less than the “net total” requested in the REA. The component numbers are 

all repeated within Section III, “Pricing” of the REA and so, too, is the “net total” of 

$4,049,494 (id. at 4-5). As a matter of fact-finding, it is not clear whether the REA 

was requesting $4,049,494 or was really intended to request $3,899,494 (or even 

$3,899,484 if the math error on the excavation amount were corrected).

This REA never explicitly requested a decision by the CO (see Shafique decl. 

Ex. 4). It was executed by Dr. Zahed (he who executed the JV agreement on behalf of 

ZAAZTC, as noted above), who signed at the end, under the section labelled “Part IV. 

10 USC 2014(a)9 Certification,” which included language attesting to the good faith 

nature of the REA and that the data was accurate to the best of his knowledge and 

belief. Under his signature, Dr. Zahed had a signature block which identified him as 

“Vice President BCC- ZAAZTC” and included a ZAAZTC email address. (Id. at 5) 

Mr. Barakzai’s name and signature are nowhere to be found on this document.

The CO responded to the REA by sending a letter by email on July 27, 2014, 

addressed to Dr. Zahed, but to a BCC email address, asking for supporting 

documentation and a baseline schedule. He explained that, without such information, 

he could not assess the merits of the claim, and that if he did not receive it within 10 

days, he would assume no such evidence existed and would make his decision without 

it. (R4, tab 24)

It is not clear whether further information was provided to the CO (there is none 

in the Rule 4 file) and on September 15, 2014, in a letter sent to Dr. Zahed on the same 

BCC email address as the July 2014 letter, the CO denied the REA. He did so for lack 

of substantiation of the costs and for the contractor’s alleged failure to notify the CO 

 8 This number, too, is off, but just by a little bit. It is derived by multiplying the 

number of extra cubic meters excavated by $10. The number of extra cubic 

meters (according to the REA) is 233,578, but the cost in the REA was 

$2,335,790. (See Shafique decl. Ex. 4 at 4)

9 This section of the United States Code requires a certification for REAs that is less 

comprehensive than the certification the CDA requires for claims over 

$100,000. Compare 10 U.S.C. § 2014(a) to 41 U.S.C. § 7103(b).
6

of the differing site condition. This letter closed by referring Dr. Zahed to the 

contract’s Disputes Clause if he was dissatisfied with the results. (R4, tab 28) 

Although there is no direct evidence that Dr. Zahed received this email, the 

preponderance of circumstantial evidence supports a finding that he did: in a second 

declaration from Mr. Shafique that was submitted in response to our request for 

supplemental briefing, he stated that ZAAZTC (ZAAZTC being defined in this 

declaration as the stand-alone company, not the joint venture) had received a number 

of communications from the CO, including one dated “July 15, 2014,” which did not 

include the right to appeal the CO’s decision (app. supp. br. Ex. 1 at 1). There is no 

indication elsewhere in the record of any July 15, 2014 communication from the CO to 

B-U-Z or ZAAZTC, which causes us to believe this was a typo and that Mr. Shafique

most likely meant the September 15, 2014 communication, especially since the REA 

was submitted two days after July 15, 2014. Moreover, as discussed below, there is 

evidence that a later REA submitted by Mr. Southerland responded to the criticisms in 

the September 15, 2014 CO’s letter.

B. Mr. Barakzai Disavows Claims Submitted by Anybody but Him

On March 23, 2015, Mr. Barakzai sent an extraordinary letter to the CO 

demanding that any claim on the contract submitted by anybody but him should “be 

immediately dismissed by USACE” (R4, tab 26). This letter began by stating that, 

“Ahmad Tariq Barakzai, President of the BCC -ZAAZTC JV and President of 

BCC-ZAAZTC JV - UIP Team is the only legally authorized person to sign and

submit any claims regarding the CN#W5J9JE-11-C-0139 - Collapsible Soil” (id.). It 

moved on to demand dismissal of unauthorized claims, as noted above, and ended by 

“inform[ing]” the CO that anybody else who had submitted a claim on the contract on 

behalf of B-U-Z did not have the authority to do so. The last line of the letter provided 

two email addresses that Mr. Barakzai instructed the CO were “[t]he only legitimate” 

ones for correspondence. (Id.) There is no evidence before us of any response by the 

government to this letter as there were no pending claims at this time.

C. Another REA is Submitted (not by Mr. Barakzai) in July 2015

Notwithstanding Mr. Barakzai’s March 23, 2015 letter, Mr. Southerland, again 

with Dr. Zahed’s cooperation, submitted an REA to the CO regarding the alleged 

differing site condition, but made no mention of delays in responding to submittals and 

reduced the demand to $3,453,72510 (R4, tab 2 at 1). This second REA was dated

May 27, 2015, though actually submitted on July 8, 2015 because Mr. Southerland

apparently had difficulty reaching the CO (see R4, tab 29 at 3), and had a similar cover 

letter from Mr. Southerland to the 2014 REA, averring that he represented the “BCC 

 10 It did not include any of the glaring mathematical inconsistencies of the 2014 REA.
7

ZAAZC11 JV – UIP Team” for contract administration matters (R4, tab 2 at 1). It 

made no mention, whatsoever, of the July 2014 REA or the CO’s rejection of it, 

though it directly addressed the prime bases for that rejection by providing a spread 

sheet with its costs and explaining that it did not need to point out the differing site 

condition to the CO since the government was on constructive notice of the conditions 

(id. at 1, 4). It is rather obvious to us that Mr. Southerland drafted the REA with the 

CO’s prior rejection of the first REA in mind. The text of the REA closed with a 

certification made by Dr. Zahed, again identified in his signature block as “Vice 

President BCC-ZAAZTC” (id. at 4). On July 12, 2015, Mr. Southerland sent a followup email to Mr. Sanchez (the CO) in which he noted that he could obtain a letter from 

Dr. Zahed authorizing him to speak on behalf of the contractor if Mr. Sanchez wished 

(R4, tab 29 at 2).

D. The Corps has Some Questions and Denies the REA

On August 5, 2015, Mr. Dennis Denker of the Corps, sent an email to the two 

email addresses cited at the end of Mr. Barakzai’s March 23, 2015 letter. The email 

noted that letter and asked whether its disavowal of claims not coming from 

Mr. Barakzai still applied to the May 27, 2015 REA that the Corps had received from 

Mr. Southerland in July which was certified by Dr. Zahed. It provided that, if things 

had changed and Mr. Southerland or Dr. Zahed were now permitted to submit claims 

on behalf of the joint venture, the Corps would need a signed letter from Mr. Barakzai 

to that effect. (See gov’t supp. br., Ex. 3 at 5-6)

After Mr. Denker sent a follow-up email on August 25, 2015, requesting some 

confirmation that he had sent the email to the proper party (id. at 5), Mr. Barakzai 

responded in an email dated September 13, 2015 (see id.). This email bluntly stated: 

Benham CC has not submitted the REA for Collapsible 

Soil of Baghlan project and, therefore, can’t confirm it and 

can’t provide certification.

The REA has been submitted to USACE by unauthorized 

parties without Mr. Ahmad Tariq Barakzai’s consent.

(Id.)

On December 1, 2015, Mr. Shafique, from ZAAZTC, sent an email to 

Mr. Sanchez of the Corps (to whom Mr. Southerland had first sent the 2015 REA). He 

inquired about the status of “our claim.” He further noted that “was too long that we 

 11 Although the T was left off of ZAAZTC we presume this to have been a mere 

typographical error, rather than indicating a different entity.
8

haven’t received any further updated from Govt.” Mr. Sanchez responded with an 

email on December 16, 2015, informing Mr. Shafique of the email from Mr. Barakzai 

stating that the REA was unauthorized. Mr. Sanchez stated that, as a result of that 

email, the Corps considered the contract closed. Mr. Sanchez added that final payment 

had been made on the contract in September 2014, and under the FAR, no REAs are to 

be considered for differing site conditions after final payment. He ended his email 

stating: “I consider this matter closed. No further action will be considered on this 

request.” (See gov’t supp. br., Ex. 3 at 1)

E. ZAAZTC and BCC Resolve Their “Internal Dispute”

Apparently, Mr. Sanchez’s December 16 email had an effect on the joint 

venture partners. In a document dated February 7, 2016 (R4, tab 30 at 1), but with 

apparently notarized signatures dated February 8, 2016 (id. at 2), Mr. Barakzai and 

Dr. Zahed made a self-titled “Settlement Agreement” (id. at 1). The agreement 

provided that BCC and ZAAZTC would be the “beneficiaries of any monies received 

from [the Corps] under a claim for [the contract].” The agreement further provided 

that ZAAZTC “covenants and agrees that it has submitted a claim for [the contract] 

and shall pay 50% of any proceeds paid by [the Corps] for such settlement proposal to 

[BCC].” It concluded by stating, “The Joint Venture of the parties is hereby 

dissolved.” (See id.)

Notably, the settlement agreement did not purport to retroactively authorize 

Dr. Zahed to submit the REAs12 himself (or through Mr. Southerland) (R4, tab 30). In 

response to our supplemental briefing order, appellant concedes that there is no such 

authorization to be found in the settlement agreement or elsewhere in the record (app. 

supp. br. at 13-14).

On Feb 10, 2016, Mr. Barakzai13 sent an email to Mr. Sanchez, attaching a copy 

of the executed settlement agreement, which he characterized as “the resolution of the 

earlier internal dispute,” implicitly requesting the REA be addressed (gov’t supp. br., 

Ex. 4 at 4). Dr. Zahed sent Mr. Sanchez a follow-up email on March 10, 2016 

requesting an update on the status of the REA in light of the resolution of the dispute 

between the parties (id. at 2-3). Mr. Sanchez responded the next day that he 

considered the matter closed “per my 17 Dec 15 email to Mr. Shafique” (id. at 2). On 

March 13, 2016, Mr. Southerland re-entered the picture, with an email to Mr. Sanchez 

stating that, “[a]s you know, my company represents ZAAZTC” and inquiring about 

how final payment could have been effected on the contract without a release (id. at 1-

 12 It refers to a single claim, which we presume to be the one submitted by 

Mr. Southerland in July 2015. 13 The email is signed by “Ahmad Tariq” (gov’t supp. br., Ex. 4 at 4), which we 

understand to be Mr. Barakzai’s first two names.
9

2). In response, on March 12,

14 Mr. Sanchez informed Mr. Southerland that the claim 

was not considered live at the time of the final payment because BCC had informed 

the government that it was unauthorized (id. at 1). There appears to have been no 

further communications until more than two months later, on May 30, 2016, when

Mr. Southerland emailed to Mr. Sanchez that “we wish to proceed with the REA 

and/or possibly convert it to a claim” (id. at 1). Mr. Larosa, from the Corps responded 

to this email: “Convert to a claim – REA has been responded to” (id. at 1).

The government has not issued any additional CO’s final decisions beyond 

Mr. Sanchez’s December 17, 2015 determination, and, on March 11, 2021, appellant

filed with the Board an appeal of what it considered to be a deemed denial of its 

“May 27, 2015” claim. Appellant’s complaint states that the Board’s jurisdiction is 

based on the government’s failure to respond to the May 27, 2015 claim which, 

appellant concedes, was sent to the CO on July 8, 2015 (see compl. ¶ 3). The 

complaint makes no reference to the dispute about authority to pursue claims on behalf 

of B-U-Z, nor does it mention the May 2016 correspondence (see id.).

F. A Final Wrinkle

We requested supplemental briefing upon a number of subjects, including 

whether the CO made final decisions on the two REAs and whether any failure to 

include notification of appeal rights in these notifications would have been to the 

prejudice of appellant in submitting a timely appeal (see Order dtd. September 23, 

2021). In response to the prejudice inquiry, appellant provided a second declaration 

from Mr. Shafique. Mr. Shafique declared that ZAAZTC (here, meaning the 

company, ZAAZTC, and not the joint venture of which ZAAZTC was a partner) had 

received the CO’s communications dated July 15, 2014, December 17, 2015, and 

March 12, 2016. He noted that none of these communications included notice of a 

right to appeal a CO’s final decision and that “[a]bsent this notice ZAAZTC had no 

knowledge of a contractor’s right to appeal from a contractor’s final decision under the 

Contract Disputes Act.” (App. supp. br. Ex. 1 at 1) He further averred that if the 

letters had included such notice or even a partial notice, the company would have 

contacted counsel to discuss their rights (id. at 1-2). Finally, he noted that “prior to 

this contract we had performed numerous contracts with the United States 

Government; however, we never had a dispute with the United States government over 

the performance of a contract” (id. at 2).

 14 It seems odd that Mr. Southerland’s email is dated March 13, 2016, while 

Mr. Sanchez’s response is dated a day earlier, the 12th, but we presume this to 

be an artifact of the two email servers being in different time zones.
10

As pointed out by the government (see gov’t supp. br. at 22), this last statement 

is demonstrably incorrect: ZAAZTC, in fact, has had at least one other dispute with 

the United States government in contract performance and is familiar with the 

procedures for appealing decisions to the Board, having done so in 2014, though that 

case was dismissed for failure to prosecute. See ZAAZTC Co., ASBCA No. 59194, 

14- 1 BCA ¶ 35,767.15

DECISION

The government motion to dismiss this appeal has multiple bases, but they are 

largely variations upon the theme that the wrong party submitted and certified the 

claim and continues to wrongly represent itself as B-U-Z here. We address the matter 

more directly and simply: Because there is no appeal of a properly submitted and 

denied (or deemed denied) claim before us, we grant the government’s motion to 

dismiss the appeal. We find it relatively easy to find that the two REAs, submitted 

approximately a year apart, were not claims because they were not submitted by 

B- U- Z, but by somebody who the proper representative of B-U-Z explicitly stated did 

not possess authority to submit them. They were denied before that was attempted to 

be remedied, and appellant maintains that the claim being appealed before us is the one 

that was submitted in July 2015 – one of the claims that was so closed.

Additionally, we find that, even if the July 2015 claim were submitted by a 

contractor and even if appellant could maintain this action despite B-U-Z’s having 

been dissolved by the February 2016 “settlement”, Mr. Sanchez’s December 2015 

email to Mr. Shafique constituted a contracting officer’s final decision which was not 

appealed to the Board within the 90-day statutory period. We also address two 

additional issues raised by the government: first, finding that, since the (faulty) claim 

upon which appellant asserts jurisdiction did not include allegations regarding the 

government’s failure to timely decide upon contract submittals, that cause of action 

would not be viable, even if we otherwise possessed jurisdiction to consider it; second, 

declining to decide whether counsel is authorized to represent B-U-Z.

I. The Burden of Proof is on Appellant to Establish our Jurisdiction

It is well established that, once jurisdiction has been challenged, the burden lies 

with the appellant to establish it, through a preponderance of the evidence. See, e.g., 

Tetra Tech EC, Inc., ASBCA Nos. 62449, 62450, 21-1 BCA ¶ 37,900 at 184,054

 15 In that case, ZAAZTC was represented by Mr. S. Ahmad Shah (see ZAAZTC, 

14- 1 BCA ¶ 35,767) who remains listed as a member of the ZAAZTC “group”

on the company’s website (see gov’t supp. br., Ex. 2). We find it highly 

unlikely that Mr. Shafique, managing director of ZAAZTC, would have been 

unaware of this previous appeal.
11

(citations omitted); see also Gen. Mills, Inc. v. United States, 957 F.3d 1275, 1284

(Fed. Cir. 2020); Reynolds v. Army Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 

1988). We accept as true all undisputed facts in the complaint and draw all reasonable 

inferences in favor of the non-moving party. Estes Exp. Lines. v. United States,

739 F.3d 689, 692 (Fed. Cir. 2014). We may also “inquire into jurisdictional facts”

where there is a dispute. Gen. Mills, 957 F.3d at 1284 (citing Rocovich v. United 

States, 933 F.2d 991,933 (Fed. Cir. 1991)). Thus, where necessary, we may engage in 

fact-finding based on our review of the record. See CCIE & Co., ASBCA Nos. 58355, 

59008, 14-1 BCA ¶ 35,700 at 174,816 (citing Raytheon Missile Sys., ASBCA

No. 58011, 13 BCA ¶ 35,241 at 173,016).

II. Appellant’s Appeal Must be Dismissed Because There is no Claim 

Submitted by the Joint Venture

Under the Contract Disputes Act (CDA), our jurisdiction is premised upon the

appeal of a CO’s final decision upon a valid claim submitted by a contractor. See

41 U.S.C. §§ 7103, 7104. We will discuss other components of a claim in more detail 

in Section III below, but our focus here is upon the CDA’s requirement that the claim 

be submitted by a “contractor.” 41 U.S.C. § 7103.16 There is no such claim here.

A. The Contractor Here is the B-U-Z Joint Venture

Though it may seem to be a matter of semantics, it is an important truism that 

the party the government has contracted with here is the B-U-Z joint venture. It is not 

the component companies of ZAAZTC or BCC. See, e.g., PHA-JMR JV, ASBCA 

No. 59032, 14-1 BCA ¶ 35,685 at 174,675-76 (quoting WorleyParsons International, 

Inc., ASBCA No. 57930, 14-1 BCA ¶ 35,482 173,959-60). UIP also plays a part, 

although the joint venture agreement forming B-U-Z was between only BCC and 

ZAAZTC.17

 16 This is a different argument than one regarding the certification of the claim. 

Though many of the cases discussed herein revolve around the question of 

claim certification required by 41 U.S.C. § 7103(a)(1), (b), here, we are looking 

to whether the claim, itself, was submitted on behalf of the joint venture. By 

statute, a claim certified by the wrong person can be remedied in the midst of 

litigation, see, e.g., Metro Machine d/b/a General Dynamics NASSCO-Norfolk, 

ASBCA No. 62221, 20-1 BCA ¶ 37,631 at 182,695; there is no basis to find 

that a claim not submitted by the contractor can.

17 The government has made arguments that the ever-shifting name of the joint venture

in the contract, the correspondence, and the claim(s)/REA(s) is a basis for 

finding lack of authority to submit the claim (e.g., gov’t mot. at 11-13). We are 

sympathetic to this argument and believe that the sloppiness in naming the JV is 

a symptom that stems from the illness that pervades this matter – ZAAZTC 
12

B. No Claim was Submitted by B-U-Z

It is a basic proposition, but important to note that, since B-U-Z is not a “natural 

person,” the CDA requires that the person who submits the claim to the government be 

a person with authority to bind the contractor as to the claim. See Kiewit/TulsaHouston v. United States, 981 F.2d 531, 533 (Fed. Cir. 1993) (citations omitted). 

Although individual partners in a joint venture may generally take action for the joint 

venture, see, e.g., Lentz v. United States, 346 F.2d 570 (Ct. Cl. 1965); Saldemi Joint 

Venture v. Dalton, 5 F.3d 510, 513 (Fed. Cir. 1993), the terms of the joint venture 

agreement are controlling when they are more limited. See Kiewit/Tulsa-Houston, 

981 F.2d at 534 (generally applying terms of the agreement to determine authority 

issues); Saldemi, 5 F.3d at 513 (recognizing the rule from Kiewit/Tusla-Houston); see 

also PHA-JMR JV, 14-1 BCA ¶ 36,685 at 174,676.

1. Mr. Southerland did not Possess Authority to Submit Either the 2014 or the 

2015 REAs18 to the Government

The first question presented to us is whether Mr. Southerland, who apparently 

derived all of his authority from Dr. Zahed, possessed the authority to submit the two 

REAs on behalf of B-U-Z. Given the fact that Dr. Zahed provided certifications (of a 

sort) to the REAs submitted by Mr. Southerland and the government has presented no 

challenge to Mr. Southerland’s actions on this ground, we find it appropriate to 

consider Mr. Southerland to have been acting under a grant of whatever authority 

Dr. Zahed possessed. Dr. Zahed, however, did not possess authority to present claims 

on behalf of the joint venture.

We arrive at this conclusion by a careful review of the joint venture agreement, 

reading it like any other contract, interpreting it “in terms of the parties’ intent, as 

revealed by language and circumstance.” United States v. Winstar Corp., 518 U.S. 

839, 911 (1996) (Breyer, J., concurring) (citations omitted), and “constru[ing it] to 

effectuate its spirit and purpose giving reasonable meaning to all parts of the contract.” 

Hercules, Inc. v. United States, 292 F.3d 1378, 1381 (Fed. Cir. 2002). The agreement 

specified that the parties would “authorize” Mr. Barakzai to sign the contract on behalf 

of the joint venture, to sign applicable amendments, and to “bind the entire joint 

venture to its obligation under any contract which may result from the solicitation.” 

 

personnel acting on behalf of their own company and not on behalf of the joint 

venture. Nevertheless, minor errors in the naming of the contractor, when it is 

evident what is being referred to, are not a basis for us to dismiss this appeal. 

Cf. Bell Helicopter Textron, Inc. and the Boeing Co., ASBCA No. 59561, 

15- 1 BCA ¶ 36,111 at 176,293. 18 As will be discussed later in this opinion, appellant would later refer to these REAs 

as claims.
13

Though it does not specify the submission of claims, we find this grant of authority to 

be broad enough to encompass this duty. See Stradadile/Aegis Joint Venture, ASBCA 

No. 39318, 95-1 BCA ¶ 27,397 at 136,587-88 (broad delegation of authority would 

encompass the authority to submit claims even if not specifically mentioned). And 

although it does not expressly preclude other representatives of the individual joint 

venturers from acting on behalf of the joint venture in dealing with the government, it 

implicitly does so since the clear intent of the agreement’s language was to vest 

authority in dealing with the government in one representative of the joint venture and 

that representative was Mr. Barakzai – the representative of the majority partner. 

Moreover, the JV agreement explicitly vested in him the authority to bind the joint 

venture to the contract. Hence, we are convinced that the agreement precluded 

ZAAZTC from submitting claims to the government without Mr. Barakzai’s consent. 

Cf. Bellinc Co, Inc. v. Babbitt, 107 F.3d 30 (Fed. Cir 1996) (table) (“full and complete 

authority” to act for joint venture precluded other member of joint venture from 

possessing such authority). Any other reading of the JV agreement would be 

disfavored since, if both parties to the agreement retained the inherent authority to 

perform the duties explicitly granted to Mr. Barakzai in the agreement, there would be 

no need for the agreement to spell out that he could and would perform them without 

mentioning the ZAAZTC partner. Moreover, the structure of the JV agreement, with 

the assumption that contract proceeds would be made to the majority partner (BCC), 

which was represented by Mr. Barakzai, and then disbursed to ZAAZTC is consistent 

with BCC being the joint venture’s representative to the government. Finally, though 

UIP was not a signatory to the JV agreement, it plainly had interests in it that stemmed 

from its prior agreement with BCC and those interests would be protected only if the 

party with whom it had a separate agreement (BCC) had final say on dealings with the 

government.

Appellant argues that the facts here are similar to those in our decision in the 

appeal of Rosinka Joint Venture, ASBCA No. 48143, 97-1 BCA ¶ 28,653, in which we 

(according to appellant) permitted a claim to be advanced by just one of the joint 

venturers after a dispute between the two was subsequently resolved (app. supp. br. 

at 15). Appellant misreads Rosinka. First, it is important to explain that the portion of 

that opinion cited by appellant was not joined by two of the judges on the three-judge 

panel that considered it since they believed it unnecessary to consider the issue. See 

Rosinka, 97-1 BCA ¶ 28,653 at 143,140. Hence, it is not binding precedent upon us. 

Moreover, even the nonbinding part of the opinion that appellant is relying upon does 

not say what appellant thinks it says; instead, it says that a managing partner, to whom 

authority to conduct substantially “all affairs” of the joint venture was granted, could 

be considered to have authority to submit a claim. See id. at 143,137-38. That is in no 

way similar to the facts presented here. The managing partner here was more 

analogous to Mr. Barakzai than to Dr. Zahed.
14

Even if we misinterpret the agreement and, in fact, both ZAAZTC and BCC 

had the right to advance a claim (or REA) on behalf of the joint venture, 

Mr. Barakzai’s communications to the government, effectively withdrawing both 

REAs, would be binding since the agreement at the very least gives him final say in 

representations to the government (the agreement permitted him to bind the joint 

venture), and his affirmative action in directing that the REAs be withdrawn means 

that they cannot be considered to be authorized claims.

2. The “Settlement” did not Retroactively Provide Mr. Southerland Authority 

to Submit the Claims

When we directed the parties to provide additional briefing upon the motion, one 

of the questions that we asked was whether the February 2016 “settlement” between 

ZAAZTC and BCC purported to retroactively authorize Mr. Southerland’s activities as 

being on the joint venture’s behalf and, if so, where it did so (see Order dtd.

September 23, 2021). Appellant’s response was that there was no such retroactive 

authorization because Dr. Zahed always possessed the authority to submit a claim on 

behalf of the joint venture (see app. supp. br. at 14-15).

We agree that there was no retroactive authorization here, for there is no place in 

the record which can be found to do as much.19 Indeed, the “settlement agreement” is a 

recognition that ZAAZTC had submitted a claim on the contract (though it does not 

specify that the claim was submitted on behalf of B-U-Z) and an agreement to split any 

proceeds from that claim. Put slightly differently, it did not purport to authorize that 

claim; rather, it accepted it as a fait accompli, and divided the possible results. Of note, 

although the original JV agreement included a 60/40 split of the proceeds, with 60% 

going to BCC and 40% to ZAAZTC; the settlement agreement sent only 50% of the 

proceeds to BCC with the other 50% going to ZAAZTC. This is further evidence that 

ZAAZTC was not acting on behalf of B-U-Z when Dr. Zahed had Mr. Southerland 

submit the REAs, because, if it had been, the rules of the original JV agreement would 

appear to spell out how the proceeds of the REAs would have been distributed, with the 

money first going to BCC which would distribute to ZAAZTC its smaller share.

 19 We are not so certain that a retroactive authorization would be effective in any 

event: the REAs considered and denied by the CO were never properly before 

him at the time that he acted on them. Not to belabor the point, but this is not 

like certification of a claim that, by statute, is permitted after the fact when 

defective. See 41 U.S.C. § 7103(b)(3).
15

3. Appellant Does not Assert That it Submitted a Later Claim

For its own reasons, appellant has never asserted that Mr. Southerland’s 

communications with the government after Mr. Sanchez’s email in December 2015 

rejecting the REA constituted a claim or the perfection of a claim. It could certainly 

have argued that Mr. Southerland’s May 2016 statement that “we” wished to proceed 

with the REA or pursue a claim constituted a reach back to the May 2015 claim and, 

perhaps, a resubmission of it – this time with whatever authority the settlement 

agreement may have provided. But appellant does not make this argument. Further, 

we will not make it for it, especially since there are a number of complications that are 

not addressed by the briefing that could preclude the success of such an argument, 

such as the (possibly related) facts that the settlement agreement dissolved B-U-Z and 

Mr. Southerland did not purport to be acting on behalf of B-U-Z in 2016, but for 

ZAAZTC. Moreover, appellant does not present any argument about whether a new 

claim could be advanced on behalf of B-U-Z after the entity ceased to exist and,

without knowledge of Afghan law, we cannot determine whether this is a case, like 

Rosinka, where dissolution of the entity precludes further actions on its part, such as 

bringing a claim or suit or whether, under the appropriate law, the dissolved joint 

venture still maintains the ability to conclude its business. But the burden of proof 

would be on appellant in any event and it has not advanced evidence supporting a 

finding that Mr. Southerland’s 2016 communications with the government advanced a 

claim on behalf of B-U-Z or that they could have.

Thus, because the July 2015 claim that is appellant’s avowed basis for this 

appeal was not submitted by the contractor, it is not a valid claim and we do not 

possess jurisdiction to consider this appeal.

III. Alternatively, Appellant’s Appeal is Untimely

Throughout the briefing of this matter, and in the complaint and in the 

settlement agreement, appellant has referred to the 2014 and 2015 REAs as “claims.” 

If, however, they were claims, as defined by the CDA,

20 appellant was informed that 

they were unequivocally denied more than 90 days prior to this appeal, in which case 

this appeal would be untimely. As will be seen, the first REA was not a claim, but the 

second one would have been if it were authorized.

 20 We, of course, find that they are not because they were not submitted by the 

contractor.
16

A. The First REA Does not Meet the Definition of a CDA Claim, but the 

Second one Does

1. What Makes a Claim

We recently had cause to discuss the definition of a claim in BAE Sys. 

Ordnance Sys., Inc., ASBCA No. 62416, 21-2 BCA ¶ 37,800 at 183,577: 

“Claim” is not defined by the CDA, . . . thus the Federal 

Circuit instructs that we turn to the FAR for its definition. 

See, e.g., H.L. Smith, Inc. v. Dalton, 49 F.3d 1563, 1564-65

(Fed. Cir. 1995). FAR 2.101 provides that a claim is “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 related to the contract.”

Among other things, the claim must explain its basis, see Contract Cleaning 

Maintenance, Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987) (claim must 

provide CO “adequate notice of [its] basis and amount”), and request a decision by the 

CO. See 41 U.S.C. § 7103(a). Additionally, the CDA requires that all claims over 

$100,000 in value (such as the ones here) be certified in accordance with 41 U.S.C. 

§ 7103(b). Special Operative Grp., LLC, ASBCA No. 57678, 11-2 BCA ¶ 34,860 

at 171,480 (citation omitted). But so long as there is an attempt at certification, even if 

it is defective (either in the person certifying it or in the language used in the 

certification), it may be remedied by the contractor prior to the entry of final judgment 

against the government. 41 U.S.C § 7103(b)(3). Indeed, the Federal Circuit has 

recently made very clear that the defect in the certification can be quite glaring and yet 

still be subject to cure. See DAI Global LLC v. Adm’r of the United States Agency for 

Int’l Dev., 945 F.3d 1196 (Fed. Cir. 2019).

Notably, none of the components of the definition of claim rest upon the 

opinion of the CO, and his or her subjective opinion is irrelevant to the matter of 

whether a communication from a contractor to the CO is a claim or not. See BAE, 

21- 1 BCA ¶ 37,800 at 183,578, n.7. Similarly, a document may be called an REA by 

the contractor, but nevertheless be considered a claim so long as it fits within the 

FAR’s definition of claim. See Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1577 (Fed. 

Cir. 1995); Hejran Hejrat Co. Ltd v. United States Army Corps of Engineers, 930 F.3d 

1354, 1357-58 (Fed. Cir. 2019).
17

2. The First REA Does not fit the Definition of Claim

The first REA certainly meets some components of a claim: it is a written 

demand, as a matter of right, for payment of money by the government. Moreover, it 

included a certification of sorts, albeit a defective one21 since the certification did not 

include the full set of assertions required by the CDA. Nevertheless, it does not 

explicitly request a CO decision nor does it seek a sum certain or adequately explain 

its bases.

Although the request for a CO’s decision is not required to be explicit and may 

be inferred from the circumstances, see Hejran Hejrat, 930 F.3d at 1357-58; James M. 

Ellett Constr. Co. v. United States, 93 F.3d 1537, 1543 (Fed. Cir. 1996), we entertain 

serious doubt that this REA made such a request. Besides the document itself, which 

makes no such request for decision, there were no other communications from 

appellant to the government that could be seen as converting the REA to a claim. In 

any event, we need not determine whether the first REA implicitly requested this 

decision since it is clear that it did not seek a sum certain. This is because a fair reading 

of the REA produces two different numbers being requested: the “net total” of 

$4,049,494 and the number calculated by summing the four numbers that 

Mr. Southerland stated were the bases of the net total: $3,899,494. To be sure, one 

might conclude that the “net total” is what is being requested, especially since 

Mr. Southerland repeats that figure twice in the REA, but since the mathematics of 

what Mr. Southerland purports to be requesting are so clear, there is a good argument to 

be made that the $3,899,494 number is what is really being sought. Indeed, in cases in 

which a net figure is not explicitly requested, but can be easily determined by resort to 

simple math, such a calculated amount is the sum certain. See Creative Management 

Servs., LLC v. United States, 989 F.3d 955, 963 (Fed. Cir. 2021); Modeer v. United 

States, 68 Fed. Cl. 131, 137 (2005), aff’d 183 Fed. App’x 975, 977 (Fed. Cir. 2006). 

Given the two different numbers, we have an ambiguity, which is plainly not a sum 

certain. Moreover, were we to decide to take the number defined as the “net total,”22

we would be faced with the question of where the missing $150,000 came from. Since 

a claim is required to at least minimally explain its bases and pulling a number out of 

“thin air” is not a basis, taking this option would only lead to a different reason for 

finding the first REA not to be a claim, to wit: its failure to explain its basis 

sufficiently for the CO to act upon it.

 21 We have previously held that the use of the particular language included in the REA 

certifications signed by Dr. Zahed is a remediable defect in certification. See

BAE, 21-1 BCA ¶ 37,800 at 183,578 (citing Air Services, Inc., ASBCA 

No. 59843, 15-1 BCA ¶ 36,146 at 176,426-27). Post DAI Global, this 

conclusion has only been strengthened.

22 This, in fact, is the number that appellant rests upon in its briefing (see app. opp’n

at 11).
18

3. The Second REA Does fit the Definition of Claim (Except for who Submitted 

it)

Unlike the first REA, the second REA includes a sum certain, not subject to 

confusion. Moreover, it is in writing, demands payment of that sum as of right, and 

includes the same defective, but subject to remedy, certification that was found in the 

first REA. The question of whether this REA is a claim, then, turns upon whether it 

requests a CO’s decision.

Like the first REA, there was no explicit request for a decision in the second 

REA when Mr. Southerland sent it to the CO. The difference between the two is that

it followed the first REA by about a year, seeking much the same damages (though not 

exactly, plus, it did not seek compensation for alleged delays in processing contract 

submittals) and there was subsequent correspondence from appellant for the second 

REA. That correspondence came in the guise of the December 1, 2015 email from 

Mr. Shafique to Mr. Sanchez suggesting that it was “too long” since the submission of 

the “claim” and asking for its status. Mr. Shafique was polite and respectful in this 

note, but by referring to his “claim” and stating that it was “too long” and that he was 

asking for an update on its status, we find that he crossed the threshold to implicitly 

requesting a decision on the REA. Hence, by the time of the December 1, 2015 email, 

the second REA was a claim, just as appellant asserts.

The government argues that the second REA was not a claim because it was not

the intent of appellant to submit anything but an REA at the time Mr. Southerland 

submitted it (gov’t supp. br. at 28-29). To the extent that the intent of the contractor is 

relevant,

23 however, what was important was not what appellant intended when it first 

submitted the REA, but what the REA became over time, and by the December 1, 

2015 email, things had changed enough for us to find an implicit request for a final 

decision.24

B. The Second REA Was Denied by the CO on December 17, 2015

The second REA being a claim, it was clearly denied on December 17, 2015 

when Mr. Sanchez, after informing Mr. Shafique that he had received Mr. Barakzai’s 

 23 We have previously expressed the opinion that, subject to constraints of the law, a 

contractor should be able to keep an REA an REA if it so chooses, see BAE, 

21- 1 BCA ¶ 37,800 at 185,579, but there is no evidence here that the contractor 

intended to keep the REA from turning to a claim, while the extrinsic evidence 

(e.g., referring to the REA as a “claim”) suggested just the opposite.

24 The government also appears to argue that the understanding of the CO is relevant 

to whether an REA is a claim (see gov’t mot. at 17-19), but, as explained above, 

that is irrelevant.
19

September 13, 2015 email stating that the claim was not valid and that he had been 

advised to consider the contract closed, stated that “I consider this matter closed. No 

further action will be considered on [t]his request.” That was definitive and left no 

room for question.

Appellant argues that the December 17, 2015 email is not a final decision 

because it includes “no substantive analysis of ZAAZTC’s claim,” but cites no law in 

support of this supposed requirement (see app. supp. br. at 9). That is because there is 

none.

The CDA specifies that, with respect to the contents of a CO’s final decision, it: 

. . . shall state the reasons for the decision reached and 

shall inform the contractor of the contractor’s rights as 

provided in this chapter. Specific findings of fact are not 

required. If made, specific findings of fact are not binding 

in any subsequent proceeding.

41 U.S.C. § 7103(e). It does not require “substantive analysis” of a claim that has 

been denied for procedural reasons, just an explanation for its reasons. Mr. Sanchez’s 

email was clear in his reasons for the decision: that appellant was not the proper party 

to advance the claim and that final payment had been made. It was also clear as to its 

finality. The only remaining question is that of the impact of its failure to advise 

appellant of its appeal rights.

Although the CDA requires the CO’s final decision to include an advisement of 

appeal rights, see 41 U.S.C. § 7103(e), the failure to include this information does not 

affect the validity of the CO’s final decision or stop the clock on the appeal submission

from running unless appellant can prove prejudice. See Decker & Co. v. West, 76 F.3d 

1573, 1579-80 (Fed. Cir. 1996); see also Mansoor Int’l Development Services, 

ASBCA No. 58423, 14-1 BCA ¶ 35,742 at 174,926. When we posed the question to 

the parties of whether the Sanchez email was a final decision, we also informed them 

directly of the Decker standard, above, and advised appellant of the need to 

demonstrate prejudice stemming from the lack of the notice of appeal (see Order dtd.

September 23, 2021 at 2). Appellant’s response falls short of the mark.

As noted above, Mr. Shafique’s declaration in support of a finding of prejudice 

concludes that ZAAZTC (the company, not the joint venture) “had no knowledge of a 

contractor’s right to appeal under the [CDA].” It also stated that if there had been a 

notice of appeal rights – even an incomplete notice, it would have consulted its lawyers. 

And it closed by stating that the company had performed numerous contracts with the 

United States before this time but never had a dispute. Unfortunately, as discussed 

above, we find that significant portions of the Shafique declaration are factually false. 
20

In 2014, the year before the CO’s decision here, ZAAZTC brought an appeal to the 

Board and the individual who brought that appeal on behalf of ZAAZTC remains 

associated with that company. Thus, we conclude that ZAAZTC, in fact, knew both of 

its right to appeal decisions to the Board and knew how to do so. Its statement that it 

was prejudiced by lack of appeal information is premised on its not knowing either, 

which is untrue. We further add that Mr. Southerland was deeply involved with 

appellant’s prosecution of its claims from July 2014 through May 2016 and that

Mr. Southerland has had decades of experience in government contracts. We find it 

highly unlikely that he was unaware of the procedures for appealing CO decisions. 

Similarly, the September 15, 2014 denial of the first REA, which we have found that 

appellant received, included reference to the contract’s Disputes Clause, which was 

another route through which appellant would have been provided information about the 

means to appeal an adverse final decision. Cf. RMA Eng’g S.A.R.L. v. United States, 

140 Fed.Cl. 191, 216 (2018) (notification of right to appeal under the Disputes Clause 

adequate). In any event, even without Mr. Southerland’s knowledge or the reference to 

the Disputes Clause in the September 15, 2014 email from the CO, we would conclude 

that the falsehoods in the Shafique declaration detract so much from its value that there 

is effectively no evidence presented by appellant in support of its allegation of prejudice. 

Moreover, ZAAZTC’s demonstrated ability to bring an appeal to the Board is 

affirmative evidence of the opposite. We thus hold that appellant has failed to meet its 

burden of proving that it was prejudiced by the CO’s failure to include appeal rights in 

his final decision.

C. No Appeal Was Filed Within 90 Days of the Denial of the Second REA

The Board lacks jurisdiction to consider appeals filed more than 90 days after 

the contractor has received the CO’s final decision. See 41 U.S.C. 7104(a); Godwin 

Corp., ASBCA No. 61410, 18-1 BCA ¶ 37,073 at 180,449 (citing Cosmic 

Construction Co. v. United States, 697 F.2d 1389, 1390-91 (Fed. Cir. 1982)). 

Mr. Shafique conceded that he received the December 17, 2015 email from 

Mr. Sanchez, which would mean that appellant had 90 days after that date, or until 

March 17, 2016, to submit its appeal to the Board. This appeal was submitted in 2021.

To be sure, there was some communication between the government and 

appellant in February and early March 2016, but Mr. Sanchez made clear that the 

matter was closed and gave no indication that he was reconsidering it or open to 

receiving additional evidence. Hence, unlike the circumstances in other cases, such as 

that presented in Guardian Angels Med. Serv. Dogs, Inc. v. United States, 809 F.3d 

1244 (Fed. Cir. 2016), there would be no basis to argue that the government had reopened it. See Godwin, 18-1 BCA ¶ 37,073 at 180,449. To the extent that any 

argument might be made that the May 2016 communications re-opened the claim, they

were more than 60 days after the time to appeal to the Board had passed, thus they 
21

cannot confer jurisdiction upon us which, having lapsed, cannot be resurrected. See id.

at 180,450.

Hence, even if appellant had the authority to bring the July 2015 claim in the 

first instance, it was denied on December 17, 2015, and not appealed within the statute 

of limitations, and we would dismiss it on that ground if we reached it.

IV. Two Final Government Arguments

Two remaining government arguments remain to be addressed though, because 

they are made largely obsolete by the decision above, we will address them in less 

depth.

A. Appellant Would not Have Been Able to Advance its Allegation Regarding 

Government Delays in Responding to its Submittals

The government has argued that we do not possess jurisdiction to consider 

aspects of appellant’s complaint which touch upon allegations that the government 

was late in responding to its contract submittals because that matter was not contained 

in the July 2015 claim from which our jurisdiction would flow (if it had been properly 

submitted) (see gov’t mot. at 22-24). Appellant does not dispute that an issue must be 

a subject of a claim if it is to be a basis of appeal, but contends that the July 2014 

“claim” was incorporated into the July 2015 claim (app. opp’n at 12-13). Appellant is 

mistaken.

Although we affirmatively found that the 2015 claim was informed by the CO’s 

rejection of the 2014 REA, the 2015 claim, in fact, made no reference to its 

predecessor and, though we have carefully reviewed it, we have found nothing to alert 

the reader that it was either adopting the arguments made in the first REA or that it 

was making arguments about anything other than a differing site condition. The same 

cannot be said for appellant’s complaint, which includes a single count alleging 

“Uncompensated Change Orders,” which mentions the alleged differing site condition

almost in passing but speaks largely and vaguely about “impos[ing] new criteria on 

Appellant for meeting the Contract’s requirements” (see compl. ¶¶ 21-29).

It is solidly established that an appellant cannot bring a new claim to the Board 

that has not been presented to the CO for his or her consideration under the guise of 

appealing a CO’s decision on a different claim. See, e.g., Relyant, LLC, ASBCA 

No. 59809, 18-1 BCA ¶ 37,085, 180,534 (citing Scott Timber Co. v. United States, 

333 F.3d 1358, 1365 (Fed. Cir. 2003)). And a claim is the same only if it relies on the 

same operative facts and seeks the same or substantially the same relief. Id. As the 

Federal Circuit explained in Lee’s Ford Dock, Inc. v. Dep’t of the Army, “Materially 

different claims ‘will necessitate a focus on a different or unrelated set of operative 
22

facts.’” 865 F.3d 1361, 1369 (Fed. Cir. 2017) (quoting Placeway Constr. Corp. v. 

United States, 920 F.2d 903, 907 (Fed. Cir. 1990)). And a significantly different legal 

theory (perhaps because it changes which facts are determinative), makes a matter 

materially different than the claim presented to the contracting officer. Tolliver Grp., 

Inc. v. United States, 20 F.4th 771, 777 (Fed. Cir. 2021).

Here, any assertions of entitlement to relief that stray from the straightforward 

differing site conditions allegations made in appellant’s July 2015 claim25 are “new,” 

relying as they do on a dramatically different legal theory and set of operative facts

and thus, would be disallowed if they had not already been dismissed as discussed 

above. Appellant would, however, be permitted to proceed on its differing site 

conditions allegations.

B. The Matter of Appellant’s Representation Before us

Last, the government has advanced the argument that counsel for appellant has 

not proved that he represents B-U-Z because he purports to represent a slightly 

differently named entity and that B-U-Z did not submit the claim in any event (see

gov’t mot. at 13). Appellant argues that its counsel was authorized by virtue of the 

“settlement agreement” (app. opp’n at 9). In any event, we need not decide this issue

because we see no conceivable circumstance in the facts before us in which appellant 

would otherwise be able to maintain this appeal, but counsel were to be disqualified.

CONCLUSION

For the foregoing reasons, we dismiss this appeal for lack of jurisdiction.

Dated: April 18, 2022

(Signatures continued)

 25 Of course, since the July 2014 REA never matured into a claim, its denial does not 

provide a basis for this appeal.

J. REID PROUTY

Administrative Judge

Vice Chairman

Armed Services Board

of Contract Appeals
23

I concur

RICHARD SHACKLEFORED

Administrative Judge

Acting Chairman

Armed Services Board

of Contract Appeals

I concur

MICHAEL N. O’CONNELL

Administrative Judge

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. 62846, Appeal of BCCUIProjects-ZAAZTC Team JV, rendered in conformance with the Board’s Charter.

Dated: April 19, 2022

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals