               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                      )
                                                  )
Bizhan Niazi Logistic Services Company            )     ASBCA No. 59205
                                                  )
Under Contract No. W5K9FH-13-D-OOO 1              )

APPEARANCES FOR THE APPELLANT:                           Mr. Mohammad Hassan Niazi
                                                          President

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

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

       Appellant, Bizhan Niazi Logistic Services Company ("BNLS"), filed a notice
of appeal seeking compensation and other relief under a contract awarded and
performed in Afghanistan. Because no proper Contract Disputes Act claim was filed
with the contracting officer (CO), we must dismiss the appeal for lack of jurisdiction.

             STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

        On 30 August 2013, the Regional Contracting Center ("RCC"), Camp
Leatherneck, Afghanistan, awarded Contract No. W5K9FH-13-D-0001 to BNLS for
the lease, operation, and maintenance of non-tactical vehicles (mot., ex. G-2). 1 On
21November2013, BNLS emailed the RCC requesting a modification to the contract
to reflect what it considered to be tasks required by the government above and beyond
the effort set forth in the solicitation (mot., ex. G-1 at 7-8). On 9 December 2013, the
RCC responded, also via email, stating that "the customer is not intending on
modifying the contract. If there is any work being done that is outside of the current
scope of the contract, please cease and desist immediately." (Id. at 5)

      On 3 March 2014, via email, BNLS renewed its request for a contract
modification. Mr. Sayed Idrees Hashemi, BNLS's operations manager, explained in

1
    The government has attached two exhibits to its motion to dismiss: Exhibit G-1
         consists of the notice of docketing and notice of appeal, paginated
         consecutively, and Exhibit G-2 is the contract at issue.
the email that BNLS was incurring the cost of extra drivers to provide 24-hour
regularly scheduled bus service not called for or priced in the contract. (Mot., ex. G-1
at 14-16) Also mentioned were extra vehicle transportation costs, fuel costs, excessive
spare parts costs due to users not turning vehicles in for regularly scheduled
maintenance, and additional escort costs for additional shifts (id.). Some of the
presented costs appear to overlap, and no bottom line claim amount was provided.
BNLS also requested "some acknowledgment" of the fact that it lost a vehicle and a
driver to a Taliban attack, a loss it attributed to a direction by the original contracting
officer representative (COR) to stage all the vehicles in a vulnerable area prior to
receiving the Notice to Proceed ("NTP"). The fact that the loss occurred prior to the
NTP meant that it was not covered by DBA insurance. (Id.)

          The RCC acknowledged receipt of this communication the next day. Its email
stated:

                 [W]e have received your message, explaining your issues,
                 in regards to [the contract]. Our Chief, Deputy Chief and
                 [CO] will carefully review the issues you have listed, and
                 will respond accordingly. We ask that you also submit a
                 letter as to how the additional funds were calculated and
                 why you believe it is a reasonable request, compared to
                 your original submitted proposaL

(Mot., ex. G-1 at 13)

        BNLS checked with the RCC several times thereafter on .its progress reviewing
the "request for modification" (mot., ex. G-1 at 13). The RCC responded that the
"adjustments request" would be reviewed over the next several days (id. at 12). On
8 March 2014, Mr. Hashemi contacted the CO to ascertain status. She replied that she
had not completed her review and would notify him "as soon as it has been completed
and a decision has been made." (Id. at 11) Shortly thereafter, on 8 March 2014, BNLS
sent its notice of appeal to the Board. The appeal was docketed on 11March2014. On
12 March 2014, the CO emailed BNLS with her determination. The email stated:

                 The information you have submitted does not warrant a
                 modification to subject contract; furthermore, you have not
                 provided any justification for added expenses.

    (App. claim, email vol. 4 at 002595) 2

2
     Appellant filed a "claim" and supporting documents with the Board after its appeal
        was docketed.


                                              2
         In its notice of appeal, BNLS states that its claim is for:

                1. A resolution to the loss of life and vehicle to the
                Taliban-Priceless

                2. Unpaid invoices to date of$1,614,900.00 outstanding
                since September 2013 through February 2014

                3.   Increases in Costs of $790,600.00

(Ex. G-1 at 3-4) BNLS also mentions that it has requested an increase in payments for
vehicles remaining on its second task order, D0002 (id.).

        On 28 March 2014, the government filed a motion to dismiss for lack of
jurisdiction. On 27 May 2014, BNLS filed with the Board its "Claim with Response
to the Government[']s Motion to Dismiss" ("Response"). In this document, also
labeled as a Complaint, BNLS states that it is seeking "damages for loss of a vehicle
and a life due to the Taliban and increases in costs of $1,431,330.00 down to
$790,600.00." (Response at 1) In this filing, BNLS withdraws its claim for unpaid
invoices due to having received payment, but adds new items, among them
restock/return fees due to premature return of vehicles; fuel for generators; changed
camp build-out costs; 3 and unamortized transportation costs incurred for early-returned
vehicles. (Response at 14-16) BNLS concludes its filing by requesting payment "in
the amount between $1,431.330.00 and $790,600.00." BNLS also requests that the
Board: (1) "edify the contracting office of the perils of the appearance or practice of
human trafficking and the mission of ISAF which is to work shoulder to shoulder and
build the capacity of Afghanistan and its people and business firms to stand firm and
resolute against oppression of any kind"; and (2) conduct "an inquiry into the request
of the COR to stage the vehicles outside the 'old soak lot' prior to the NTP, which
unfortunately resulted in the death of a BNLS relay driver and was not under the
auspice of the DBA insurance due to the Lack of the Notice to Proceed." (Id. at 18)




3
    The amount of $280,000 was listed as the cost of building the camp in BNLS's
        3 March 2014 submission to the RCC (mot., ex. 1 at 15). In its later filing with
        the Board, BNLS stated the "market rate" to build the camp "would have been
        over $270,000" but that it was able to build the camp for only $91,970, "up to
        $70,000" of which is now claimed (response at 15).


                                               3
                                       DECISION

        Under the Contract Disputes Act ("CDA"), 41 U.S.C. §§ 7103 et seq., our
jurisdiction is dependent on the submission of a written claim to the CO, followed by a
written CO' s final decision on the claim or circumstances that permit a "deemed
denial." Additionally, to the extent the claimed amount exceeds $100,000, the claim
must be accompanied by a certification that the claim is made in good faith, the
supporting data are accurate and complete to the best of the certifier's knowledge and
belief, the amount requested accurately reflects the amount for which the contractor
believes the government is liable, and the certifier is authorized to bind the contractor.
Taj Al Safa Company, ASBCA No. 58394, 13 BCA ii 35,278 at 173,158; Engineered
Demolition, Inc., ASBCA No. 54924, 06-1BCAii33,125 at 164,151; 41 U.S.C.
§ 7103(b). A defective certification does not deprive us of jurisdiction, although it
must be corrected before we issue a decision. Southern Automotive Wholesalers, Inc.,
ASBCA No. 53671, 03-1 BCA ii 32,158 at 158,998. However, the complete absence
of a certification of a claim in excess of $100,000 is a jurisdictional defect that cannot
be corrected after an appeal has been taken. Taj Al Safa, 13 BCA ii 35,278 at 173,162.

      It is well established that the CDA does not define the term "claim." The
Federal Acquisition Regulation (FAR), however, defines "claim" as follows:

                      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 the Contract
              Disputes Act of 1978 until certified as required by the Act.
              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 (2013). A substantially similar definition is incorporated in the contract's
Disputes Clause, FAR 52.233-1. 4

4
    The contract, at page 44, incorporates by reference FAR 52.212-4, CONTRACT
        TERMS AND CONDITIONS-COMMERCIAL ITEMS (FEB 2012), which in tum
        incorporates the Disputes Clause.


                                            4
       We apply a common sense analysis to determine whether a contractor's
communication constitutes a claim, and look for a "clear and unequivocal statement that
gives the contracting officer adequate notice of the basis and amount of the claim."
Contract Cleaning Maintenance, Inc. v. United States, 811F.2d586, 592 (Fed. Cir.
1987); Todd Pacific Shipyards Corp., ASBCA No. 55126, 06-2 BCA if 33,421 at
165,687. That analysis can be influenced by whether the government treated the
submission as a claim. Transamerica Ins. Corp. v. United States, 973 F.2d 1572,
1579 n.2 (Fed. Cir. 1992).

        Appellant must prove by a preponderance of the evidence that the Board has
jurisdiction under the CDA to entertain its appeal. Parsons Global Services, Inc.,
ASBCA No. 56731, 11-1BCAif34,632 at 170,653. We conclude, for the following
reasons, that appellant has failed to sustain its burden of proof.

        The record does not demonstrate a "clear and unequivocal" statement giving the
CO adequate notice that a claim is being submitted, or of the basis for and amount of
the claim. The parties' communications consistently used non-claim language such as
"modification request" or "adjustment request" to describe the contractor's
submission. On the date appellant filed its notice of appeal, the government was
reviewing the issues raised in BNLS's 3 March 2014 email, and had requested a letter
explaining how the amounts were calculated and "why you believe it is a reasonable
request, compared to your proposal" (mot., ex. G-1 at 13). Nor had BNLS claimed a
sum certain. As noted above, BNLS' s submissions contain listed dollar amounts,
some of which have changed and some of which appear to overlap, and lack a bottom
line claim amount in a sum certain. Thus the amount claimed cannot be calculated
with reasonable effort so as to satisfy the sum certain requirement. See Madison
Lawrence, Inc., ASBCA No. 56551, 09-2 BCA if 34,235 at 169,207.

       To the extent appellant's claim exceeds $100,000, it must be certified at the
time of submission to the CO for decision. Appellant contends that at the time it
submitted its "claims" to the CO, they were an aggregation of individual claims none
of which exceeded $100,000, so certification was not required at that time. Case law
is clear that the question whether two or more separate claims, or only one claim
fragmented into pieces, exist is determined by assessing whether the claims are based
on the same or related set of operative facts. See, e.g., Placeway Constr. Corp. v.
United States, 920 F.2d 903, 907 (Fed. Cir. 1990). If the court will have to review the
same or related evidence to make its decision, then only one claim exists. Id. The
Board does not find it necessary to decide this issue at this time, given its decision
that the complete lack of a claim submission deprives it of jurisdiction. If appellant
submits its claim(s), in a sum certain, to the CO for a final decision, it can determine
at that time which of its claims require certification.



                                           5
        Finally, BNLS has requested additional relief with respect to the death of one of
its drivers and the loss of a vehicle. This forum does not undertake investigations.
Nor can we award compensation for loss of life or even loss of a vehicle unless there is
a contractual basis for doing so. Under the CDA, our jurisdiction to grant relief is
limited to relief arising under or relating to the contract. 41 U.S.C. §§ 7101-7109.

                                    CONCLUSION

       The appeal is dismissed for lack of jurisdiction. BNLS may submit a claim or
claims in a sum certain to the CO, and must include a CDA certification for each claim in
excess of $100,000. If the CO denies the claim, or fails to act so that a deemed denial may
lie, BNLS may file a timely appeal to this Board within 90 days of receipt of the decision,
or within one year of receipt of the decision to the U.S. Court of Federal Claims.

       Dated: 13 August 2014




I concur                                         I concur




"~
Administrative Judge
Acting Chairman
Armed Services Board
                                                 RICHARD SHACKLEFORD
                                                 Administrative Judge
                                                 Vice Chairman
                                                 Armed Services Board
of Contract Appeals                              of Contract Appeals




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       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. 59205, Appeal ofBizhan
Niazi Logistic Services Company, rendered in conformance with the Board's Charter.

      Dated:



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




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