               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                   )
                                               )
Black Tiger Company                            )      ASBCA No. 59819
                                               )
Under Contract No. W91GXE-11-P-0083            )

APPEARANCE FOR THE APPELLANT:                         Mr. Kadhom Husein Faraj
                                                       Owner

APPEARANCES FOR THE GOVERNMENT:                       Raymond M. Saunders, Esq.
                                                       Army Chief Trial Attorney
                                                      MAJ Michael G. Pond, JA
                                                       Trial Attorney

             OPINION BY ADMINISTRATIVE JUDGE PAGE ON
    THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION

        This appeal arises out of a certified claim submitted by appellant Black Tiger
Company (Black Tiger or appellant) to the Department of the Army (Army or
government) seeking payment under a contract that the government contends does not
exist. The government has filed a motion to dismiss alleging that the Board lacks
jurisdiction over this appeal under the Contract Disputes Act, 41 U.S.C. §§ 7101-7109
(CDA). For the reasons set forth below, we deny the motion.

         STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

        1. On 5 February 2015, appellant filed a notice of appeal with the Board
alleging that it has not been paid for equipment it provided to the Army at a military
installation in Tallil, Iraq, under Contract No. W91 GXE-1 l-P-0083 (contract).

       2. The notice of appeal forwarded a number of documents, including (a) an
exchange of emails between appellant and the Army dated from 20 January 2015 to
1February2015 concerning appellant's request for payment (R4, tab 4); 1 (b) an email
exchange dated 3 February 2015 between appellant and a person purporting to be the
contracting officer's representative (COR) on appellant's contract (R4, tab 6); (c) an
email dated 4 February 2015 from appellant to the Army seeking the Army's decision

1
    The Board notes that the last email in this exchange submitted by appellant with its
        notice of appeal is dated 1 February 2015, but the corresponding email in the
        government's Rule 4 file is dated 31 January 2015. The Board assumes this
        difference in dates is due to the time difference between the email's point of
        origin in the United States and its point of receipt in Iraq.
on its request for payment (R4, tab 7 at 1); (d) a CDA certification dated 3 February
2015 signed by appellant's owner (id. at 4); (e) a Standard Form (SF) 1449 (id. at 3),
which appellant identified as the first page of the contract (id. at 1), signed by a person
identified as the contracting officer (CO) on 7 December 2010 and by appellant's
owner on 8 December 2010 (id. at 3); and (f) an undated document identified as
Invoice No. 776 for two items of heavy equipment (id. at 2). Appellant provided the
SF 1449 and Invoice No. 776 to the Army in an email dated 26 January 2015 (R4,
tab 4 at 1-2), and asserted in its 4 February 2015 email that these were the only
contract documents still in its possession, the others having been lost (R4, tab 7 at 1).

       3. The email exchange dated 3 February 2015 between appellant and "Park
Link," the person purported to be the COR, was initiated by appellant. 2 In this
exchange, appellant requested the recipient, who signed "Meelondrell," to provide it
with a copy of the "contract documents." (R4, tab 6) The reply, which came from a
private email account, stated that she would send the documents requested by
appellant to the "assigned contracting authority" (id.). The record has now been
supplemented with those documents, and an email signed "Meelondrell Park" stated
that she "can confirm [the contract] does exist" (R4, tabs 1-3, tab 10 at 2).

       4. On 12 March 2015, the government moved to dismiss for lack of jurisdiction,
alleging that there is no evidence that the contract identified by appellant actually
exists (gov't mot. at 2-3). By order dated 16 March 2015, the Board directed the
government to address whether appellant had submitted a certified claim and the date
the government received the claim; whether the appeal was premature; and whether
the government's answers to any of these questions affected the Board's jurisdiction.

       5. On 15 April 2015, the government filed its response to the Board's
16 March 2015 order. In its response, the government concluded that appellant filed a
properly certified claim on 3 February 2015 (gov't resp. at 2). The government also
noted that although appellant's notice of appeal was filed only 48 hours after it
submitted its claim, more than 60 days had elapsed since that date and requiring
appellant to refile its appeal would serve little purpose (id. at 3). The government then
renewed its request that the Board dismiss the appeal for lack of jurisdiction, again
alleging that there is no evidence that the contract upon which it is based exists (id.).

        6. Attached to the government's 15 April 2015 response was a declaration
dated 14 April 2015 from a CO employed at the United States Army Contracting
Command- Rock Island (ACC-RI) (gov't resp., decl. ~ 1). The ACC-RI regularly
assists with the resolution of contracts previously awarded in Iraq and Afghanistan and
serves as a repository for contracts awarded in those two countries (id.). In his
declaration, the ACC-RI CO averred that he had searched various government contract


2
    Appellant refers to this person as the COR in its response to the motion to dismiss.
                                             2
    retrieval and archival systems but had been unable to find any information related to
    the contract documents submitted by appellant (id. ~ 2).

                                           DECISION

            The government has moved to dismiss this appeal for lack of jurisdiction, alleging
    that there is no evidence a contract actually exists (gov't mot. at 2-3). Appellant bears the
    burden of establishing the Board's jurisdiction by a preponderance of the evidence.
    Reynolds v. Army & Air Force Exchange Service, 846 F.2d 746, 748 (Fed. Cir. 1988);
    Total Procurement Service, Inc., ASBCA No. 53258, 01-2 BCA ~ 31,436 at 155,237.

            The CDA describes the burden appellant must satisfy:

                   The Armed Services Board has jurisdiction to decide any
                   appeal from a decision of a contracting officer of the
                   Department of Defense, the Department of the Army, the
                   Department of the Navy, the Department of the Air Force,
                   or the National Aeronautics and Space Administration
                   relative to a contract made by that department or agency.

    41 U.S.C. § 7105(e)(l)(A) (emphasis added). 3 Under the CDA, appellant "need only
    allege the existence of a contract to establish the Board's jurisdiction." American
    General Trading & Contracting, WLL, ASBCA No. 56758, 12-1BCA~34,905 at
     171,640 (citing Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1353 (Fed. Cir.
    2011)); see Dongbuk R&U Engineering Co., ASBCA No. 58300, 13 BCA ~ 35,389 at
     173,637 (appellant's non-frivolous assertion of a contract was sufficient to establish
    jurisdiction). This burden does not require appellant to prove that a contract actually
    exists, as that question goes to the merits of appellant's claim rather than the Board's
    jurisdiction. See Tele-Consultants, Inc., ASBCA No. 58129, 13 BCA ~ 35,234 at
     172,994; American General Trading, 12-1 BCA ~ 34,905 at 171,640.

             The government cites two cases in support of its motion to dismiss, both of which
    are distinguishable on their facts. In West Point Research, Inc., ASBCA No. 27185, 83-2
    BCA ~ 16,845, appellant, then a valid corporation, submitted a bid to the government, but
    while the parties were still engaged in discussions, appellant was dissolved by forfeiture.
    Id. at 83,830. The Board held that appellant's dissolution extinguished its capacity to
    enter into contracts, and therefore the government's later acceptance of the bid was
    ineffective. Id. at 83,832. Because a contract never came into existence, the Board held
    that it lacked jurisdiction. Id.



    3   Inasmuch as we do not have a complete copy of the contract, we do not know which
            disputes clause it contains.
                                                3


l
      In Robert B. Beachboard, ta Save Columbia Council, ASBCA No. 33362,
87-1BCA~19,532, appellant never provided any information about any actual contract it
had been awarded or any CO's final decision from which it was appealing. Id. at 98,702-03.
The Board ultimately found that appellant had made an unsolicited offer of a contract to the
government, but because the government never accepted it, no contract was created. Id. at
98,703. Thus the Board again held that it lacked jurisdiction. Id. at 98,704.

        In contrast, here the government has not alleged that appellant lacked the capacity
to enter into the contract. Moreover, appellant's notice of appeal included (1) a contract
number; (2) an SF 1449 that identified appellant on the first page of the contract as the
contractor; and (3) a document appellant asserted was an invoice for the equipment
provided under the contract (SOF ~ 2). Although the government states that it has been
unable to locate a copy of the contract in various government databases (SOF ~ 6), the
question of whether a valid contract exists goes to the merits of the appeal and does not
affect the Board's jurisdiction over the appeal. See American General Trading, 12-1
BCA ~ 34,905 at 171,640; Tele-Consultants, 13 BCA ~ 35,234 at 172,994; see also Tokyo
Company, ASBCA No. 59709-953, 15-1 BCA ~ 35,888 at 175,448 (fact that government
did not believe contract actually existed was a challenge to the merits of appellant's claim
where appellant petitioned the Board to direct the CO to issue a final decision).

                                    CONCLUSION

       Appellant has made a non-frivolous assertion of a contract sufficient to
establish our jurisdiction. The government's motion is denied.



                                                  s(Z~
       Dated: 29 June 2016


                                                   REBAPAg(!L
                                                   Administrative Judge
                                                   Armed Services Board
                                                   of Contract Appeals

 I concur                                          I concur




 MARK N. STEMPLER                                  RICHARD SHACKLEFORD
 Administrative Judge                              Administrative Judge
 Acting Chairman                                   Vice Chairman
 Armed Services Board                              Armed Services Board
 of Contract Appeals                               of Contract Appeals


                                            4
       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. 59819, Appeal of Black
Tiger Company, rendered in conformance with the Board's Charter.

       Dated:



                                                  JEFFREY D. GARDIN
                                                  Recorder, Armed Services
                                                  Board of Contract Appeals




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