               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                   )
                                               )
Anwar Alsabah Company                          )      ASBCA No. 59881
                                               )
Under Contract No. CERPUSDS9000097             )

APPEARANCE FOR THE APPELLANT:                         Mr. Samir Homodi
                                                       Owner

APPEARANCES FOR THE GOVERNMENT:                       Raymond M. Saunders, Esq.
                                                       Army Chief Trial Attorney
                                                      MAJ M. Aaron Lee, JA
                                                       Trial Attorney

           OPINION BY ADMINISTRATIVE JUDGE O'CONNELL
       ON THE GOVERNMENTS MOTION FOR SUMMARY JUDGMENT

        This matter is before the Board on the government's motion to dismiss for lack
of jurisdiction, which we are treating as a motion for summary judgment.

           STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

        In the 6 August 2010 memorandum of agreement referenced above (the "contract"),
the Army allegedly purchased seven Toyota Land Cruiser sports utility vehicles (SUVs)
delivered to COB Delta in Iraq at a total price of $791,000 (R4, tab 1). Appellant contends
it furnished the SUVs to the government but has not been paid. The case comes before us
in an unusual posture, however, because the contract and related documents in the Rule 4
file were provided to the government by appellant; the government has been unable to
locate copies ofthese documents in its own records (R4, tab 6, ~~ 2-3; gov't mot. at 2 n.l).
Government counsel also represents that the project purchasing officer who purportedly
awarded the contract denies doing so (gov't mot. at 2 n. l ). The documents furnished by
appellant have spelling and syntax problems, as if they had been written by someone not
completely fluent in English (see R4, tabs 1-4). For example, one of the documents
furnished by appellant, which purports to acknowledge receipt of the seven SUVs by the
government, is on the pre-printed letterhead of a unit identified as an "ARMORED
CAYAIRY REGIMENT" (R4, tab 4).

       With this as the starting point, it is evident that there are few undisputed facts.
But after reviewing the briefing on the government's motion to dismiss, one crucial
fact came into focus: the project purchasing officer, Staff Sergeant William Cornelius,
is not a contracting officer. 1 The Board issued an order on 2 November 2015 in which
we notified the parties that we intended to consider the government's motion to
dismiss as a motion for summary judgment and gave the parties until 4 December
2015 to file any additional evidence or argument that they wished the Board to
consider. We also directed the government to file a declaration supporting its assertion
that Staff Sergeant Cornelius was not a contracting officer and invited appellant to
submit any evidence to the contrary. Appellant did not respond to this order. 2

       The government responded by filing a declaration by Richard J. Lee, a contracting
officer at the Reachback Closeouts Branch for the Army Contracting Command-Rock
Island. In his declaration, Mr. Lee testified that he had searched the government's
records going back to September 2006 (almost four years prior to the date of the alleged
contract (see R4, tab 1)) and could find no evidence that Staff Sergeant Cornelius had
ever been a contracting officer (Lee decl. ~~ 1-3). In light of this testimony, along with
the fact that there is no document in the record in which Staff Sergeant Cornelius
represented himself to be a contracting officer, and appellant's failure to provide any
evidence to the contrary, we find it undisputed that Staff Sergeant Cornelius was not a
contracting officer.

        The record contains no documents between September 2010 when appellant
allegedly furnished the vehicles to the government (R4, tab 4) and December 2014 when
appellant began contacting the government seeking payment (R4, tab 10). On 6 March
2015, appellant submitted a claim for payment of $791,000 that contained the
certification language prescribed in FAR 33.207(c) (R4, tabs 12-13). A contracting
officer issued a final decision on 10 March 2015 in which he concluded that "there was
no contract awarded for this agreement" and thus denied appellant's claim (R4, tab 5).

                                       DECISION

         The Board considers motions for summary judgment under Board Rule 7(c).
Pursuant to this rule, the Board may accept a fact properly proposed and supported by
one party as undisputed unless the opposing party properly responds and establishes that
it is in dispute. Rule 7(c)(2). As described above, the government has demonstrated for
purposes of Rule 7(c) that Staff Sergeant Cornelius was not a contracting officer.


1
    Project purchasing officers have some contract training and limited authority to award
         contracts in Iraq and Afghanistan in the Commanders' Emergency Response
         Program (CERP). CERP was developed to enable commanders to respond to
         urgent humanitarian relief and reconstruction needs by executing programs that
         will immediately assist the indigenous population. (R4, tab 9 at 27-28)
2
    The Board also sent emails to appellant (an email address being the only contact
         method it provided us) on 19, 23, 26, and 28 October 2015 attempting to
         schedule a status conference to discuss future proceedings but appellant did not
         respond to any of those emails.
                                             2
Appellant Cannot Demonstrate that a Valid Contract was Formed

        An appellant alleging a contract with the United States must show a mutual intent
to contract, including an offer, acceptance, and consideration, and that the government
official who entered or ratified the contract had actual authority to bind the government.
Trauma Service Group v. United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997). With
exceptions not applicable here, contracting officers are the only government
representatives authorized to sign contracts on behalf of the United States. FAR 2.101,
4.101. Anyone entering into a contract with the government takes the risk of accurately
ascertaining the authority of the agent for the government; this risk remains with the
contractor even when the government agents themselves may have been unaware of the
limitations on their authority. Trauma Service, 104 F.3d at 1325.

        As we have found, the official who purportedly signed the contract on behalf of
the United States, Staff Sergeant Cornelius, was never a contracting officer. He had
no authority to award a contract under the CDA, nor under the CERP program, which
requires that contracting officers award contracts over $500,000 (R4, tab 8 at27-12;
tab 9 at 28; Lee decl. encl. at 21). Under Trauma Service, it was up to appellant to
ascertain that Staff Sergeant Cornelius had the authority to execute the contract, but it
failed to do so. Accordingly, appellant cannot demonstrate that it entered into a
Contract Disputes Act contract with the government and it thus fails to state a claim
upon which we may grant relief. Trauma Service, 104 F.3d at 1327. The government
is entitled to judgment as a matter of law. 3

                                    CONCLUSION

        The motion is granted and the appeal is denied.

        Dated: 18 February 2016



                                                ·111~ri. CJ r~
                                                  MICHAEL N. O'CONNELL
                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals

(Signatures continued)

3   Due to our conclusion with respect to Staff Sergeant Cornelius' lack of authority
        under the CDA or the CERP program, we do not reach the government's other
        arguments.
                                            3
I concur                                         I concur




e~R$
Administrative Judge
                                        -
                                                 RICHARD SHACKLEFORD
                                                 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. 59881, Appeal of Anwar
Alsabah Company, rendered in conformance with the Board's Charter.

      Dated:



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




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