               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                  )
                                              )
Kandahar Gravel Supplies and Logistics        )      ASBCA No. 60531
                                              )
Under Contract No. W91B4L-l l-P-0133          )

APPEARANCE FOR THE APPELLANT:                        Mr. Asadullah Qureshi
                                                      President

APPEARANCES FOR THE GOVERNMENT:                      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 ACC-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.
                                             3
                      (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:

                      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.

FAR 2.101.

       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

                                             4
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


                                                   DA YID D' ALESSANDRIS
                                                   Administrative Judge
                                                   Armed Services Board
                                                   of Contract Appeals

 I concur                                          I concur

        J/               //     /

~k~H
 Administrative Judge                              Administrative Judge
 Acting Chairman                                   Vice Chairman
 Armed Services Board                              Armed Services Board
 of Contract Appeals                               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:



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


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