               ARMED SERVICES BOARD OF CONTRACT APPEALS

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

APPEARANCE FOR THE APPELLANT:                        Mr. Kadhom Husein Faraj
                                                      Owner

APPEARANCES FOR THE GOVERNMENT:                      Raymond M. Saunders, Esq.
                                                      Army Chief Trial Attorney
                                                     MAJ Elinor J. Kim, JA
                                                      Trial Attorney

                 OPINION BY ADMINISTRATIVE JUDGE PAGE

        Black Tiger Company (appellant or Black Tiger) appeals from a deemed denial
of its claim seeking $1,368,095 based upon an alleged contract with the United States
CENTCOM Contracting Command (the government) to deliver heavy construction
equipment to Tallil Air Base, Iraq. In a previous decision, Black Tiger Company,
ASBCA No. 59189, 16-1 BCA ,-i 36,423, we denied the government's motion to
dismiss this appeal for lack of jurisdiction, holding that triable issues remained
regarding the existence of a contract, precluding dismissal. Id. at 177 ,570-71.
The government requested submission of this appeal on the record, pursuant to Board
Rule 11. The Board attempted to contact appellant to inquire as to its position
regarding a Board Rule 11 decision, and whether it intended to file a brief. The
3 November 2016 scheduling order directed the parties that "Any filing not made in a
timely manner may be deemed waived." It cautioned the parties that "Following the
filing date for reply briefs," which was set as 27 July 2017, "the record in this appeal
will be deemed closed and the appeal ready for decision without further notification
from the Board." Appellant has not responded to the Board's orders, and we rule upon
the record as of 27 July 2017. We decide entitlement only, and deny this appeal.

                                FINDINGS OF FACT

       1. This appeal arises from alleged Contract No. W91GXE-l l-P-0083 (alleged
contract) between the government and appellant. The alleged contract has an effective
date of 5 December 2010, although the signature date is listed as 7 December 2010.
(R4, tab 1 at 1)
       2. The alleged contract purportedly calls for the delivery of heavy construction
equipment, consisting of two John Deere graders and three bulldozers, to Tallil Air
Base, Iraq, on 29 December 2010 (R4, tab 1 at 3-4 ).

       3. By email dated 3 February 2015, appellant submitted a certified claim for
$1,368,095 to Ramena Gabriel, Contract Specialist, Reachback Closeout Division,
U.S. Army Contracting Command, Rock Island, Illinois (ACC-RI), alleging that it had
not been paid for performance of the contract (R4, tab 5 at 1, tab 7).

       4. By email dated 5 February 2015, appellant filed a notice of appeal with the
Board stemming from the 3 February 2015 certified claim for $1,368,095. The Board
docketed the appeal as ASBCA No. 59819 on 6 February 2015. As noted in the
Board's prior decision, although the notice of appeal was filed only 48 hours after
appellant submitted a claim to the contracting officer (CO), the government was not
requesting that appellant refile the notice of appeal to timely comply with the rules, as
more than 60 days had elapsed since the date of claim submission. Black Tiger
Company, 16-1 BCA, 36,423 at 177,570, SOF, 5.

       5. As part of the notice of appeal, appellant submitted the following
documents: (1) an alleged invoice for Iraqi Dinar (IQD) 1,532,266,400; (2) the first
page of the alleged contract; (3) a certification for the claimed amount totaling
$1,368,095; (4) email exchanges between appellant and Ms. Gabriel, beginning on
20 January 2016, in which she denied the existence of the contract; and (5) an email
dated 3 February 2015 from "Meelondrell," sent from a Gmail email address (email
address No. 1), that stated "It is unacceptable that you did not get paid for this
contract." Appellant alleges that the last email was sent by a contracting officer's
representative (COR) named "Meelondrell," "Meelondrell Park,'' "Meelondrell
Park-Link," or "Meelondrell Park-Laink" (Notice of Appeal at 10-11; R4, tab 1 at
blocks 14, 29, tab 3 at block 13, tab 7, tabs 9-10)

       6. By declaration dated 10 March 2015, CO Thomas A. Petkunas asserted that
he executed a "comprehensive search" of various government contract retrieval and
archival systems for any records related to the alleged contract. No documents were
found. (R4, tab 8 at 1)

       7. By email dated 10 March 2015, CO Petkunas emailed the alleged COR
"Meelondrell Park" at email address No. 1, requesting additional documentation for the
alleged contract. CO Petkunas also requested that Ms. Park contact him via telephone
or through her government email address to discuss the matter further. (R4, tab 9 at 4)

       8. An individual representing herself to be "Meelondrell Park" from email
address No. 1 responded to CO Petkunas's correspondence in an email dated 15 March
2015. She stated that she was in China, no longer in the military, and did not have


                                           2
access to a government (.mil) email account. The individual responding insisted that
she was the COR of the alleged contract, and that she had received the "heavy
equipments [sic]." The writer offered to provide a declaration attesting to her identity
and knowledge of the contract. (R4, tabs 1-3, tab 9 at 2)

       9. By email dated 17 March 2015, the individual representing herself to be
Meelondrell Park sent CO Petkunas three documents from email address No. 1.
The documents included: (1) the alleged contract, Standard Form 1449, Contract
No. W91GXE-l 1-P-0083, which included 36 pages. It had an effective date of
5 December 2010 and was signed by the purported CO on 7 December 2010; (2) a
notice of award, dated 7 December 2010 (notice of award); and (3) a DD Form 250,
Material Inspection and Receiving Report, dated 4 January 2011 (DD Form 250). (R4,
tabs 1-3, tab 9 at 2)

        10. In emails dated 18 March 2015 and 23 March 2015, CO Petkunas requested
the individual responding from email address No. 1 verify her identity by providing her
social security number, as well as contact information for her department, supervisor, or
a coworker who could vouch for her. The individual responding from email address
No. 1 never replied to the requests for identity verification. (R4, tab 9 at 1)

        11. The documents provided in the 17 March 2015 email from email address
No. 1 identify three individuals who allegedly worked on the contract throughout its
award and performance: Boyce Haywood, Rebecca Ann Riddick, and Meelondrell
Park-Laink. Mr. Haywood's name was included on the notice of award, along with his
supposed signature, where his title was listed as CACI Support Contractor (R4, tab 2),
a similar signature also appeared on block 7a of the SF 1449 (R4, tab 1 at 1).
Ms. Riddick's name, title as CO, and signature appeared on the notice of award and
SF 1449 (R4, tab 1 at 1, tab 2). Ms. Park-Laink's name was listed as the COR several
times in both the SF 1449 and DD Form 250 (R4, tab 1 at 29, tab 3 at 1). The forms
listed her rank as Staff Sergeant and her point of contact email address as email address
No. 1 (R4, tab 1 at 29).

        12. By declaration dated 7 April 2017, Mr. Haywood stated that from
December 2009 to December 2010, he worked as a contractor with CACI Dynamic
Systems, Inc., for the United States Department of Defense (DoD) at Tallil Air Base,
Iraq (R4, tab 14 at 1). To the best of his memory, Mr. Haywood did not sign or
authorize anyone to sign the notice of award provided by email address No. 1 on his
behalf (id.). In support of this statement, Mr. Haywood noted that he was not
physically present in Tallil, Iraq on 7 December 2010, when he allegedly signed the
notice of award, as he was on leave in North Carolina. He stated it was his practice to
date a document as the date he actually signed it. (Id.) Mr. Haywood provided his
leave approval form, which confirms his declaration that he was not in Tallil, Iraq
from 6 December 2010 to 10 January 2011 (R4, tab 13). Additionally, although


                                           3
Mr. Haywood recalled working with Ms. Riddick while in Tallil, Iraq, he did not recall
working with anyone named Meelondrell Park-Laink, Meelondrell Parks-Laing, or
Meelondrell Parks (R4, tab 14 at 1).

       13. By declaration dated 18 April 2017, Technical Sergeant (TS gt)
Rebecca Ann Ransome, formerly known as Rebecca Ann Riddick, stated that although
a copy of her signature appeared on the notice of award and SF 1449 that was provided
by appellant, she did not sign those documents or authorize anyone to do so on her
behalf (R4, tab 16 at 1). In addition, given her 14 years of experience in the
contracting field, TS gt Ransome questioned the authenticity of the alleged contract
and notice of award and noted numerous inconsistencies in documents proffered by
Black Tiger and unlikely practices as compared to standard government procurement.
She stated:
             I question the authenticity of the SF 1449 based on the
             following:

             a.     Our contract writing database system that we
                    referred to as "PD2'' used the same font throughout
                    any contracting document. In several of the blocks
                    on page one of the SF 1449, the font is different.
             b.     On page I, block 3, the award effective date is
                    before the award signed date in block 31 c. This is
                    not a common practice and I highly doubt this is an
                    error done by me and something that the system
                    would alert me of prior to approving and releasing
                    the award.
             c.     On page 1, block 10, the table is disproportioned,
                    the 7th line down reading "SVC-DISABLED
                    VET-OWNED SB" is overlapping block 13b. The
                    proportions never change no matter how many
                    characters are entered. The system takes
                    information from the data entered into PD2 and
                    places it in those blocks and always maintains the
                    same format. This is not consistent.
             d.     On page 1, block 15, the "delivery to" customer is
                    "407 ECES," which stands for the 407
                    Expeditionary Civil Engineer Squadron. However,
                    on page 4, the delivery customer referenced is
                    "IERHG," which stands for the 1st Expeditionary
                    Red Horse Group. At the time, 1ERHG was not
                    stationed with us at Tallil AB.



                                          4
 e.    On page 3, Item No 0001, the purchase request
       number F3 UU AR09 l A3 22 is not consistently used
       throughout SF 1449 as it should be and the
       sequence number is incomplete. The purchase
       request number consists of the Department of
       Defense Activity Code ("DODAAC") (6 position
       code), Julian date (4 digits), document type
       (2 position code), and sequence number (2 digits)
       totaling 14 letters or digits. On page 3, an incorrect
       sequence code for the purchase request number is
       listed twice.
f.     On page 4, Accounting and Appropriation Data, the
       first series of numbers is 5714400. The 57 signifies
       Air Force, the 1 signifies the last number of the fiscal
       year, and then the remaining 4 numbers signify what
       type of money (i.e. O&M (Operation & Maintenance),
       MILCON (Military Construction), etc.). In Air Force
       Manual 65-604 (Financial Management), there is no
       supporting significance of 4400.
g.    On page 4, Accounting and Appropriation Data, at
      the end of the long line of accounting number [sic],
      there is yet another referenced purchase request
      number (F3UTA85571H001) with an incorrect
      Julian date of 5571. There are only 365 days in a
      year; this number is incorrect.
h.    On page 4, Accounting and Appropriation Data, the
      "CIN" numbers referenced are different despite the
      same purchase request number.
1.    On page 29, block 7, it appears a personal email,
      [email address No. 1] is provided as a point of
      contact. We would not have used personal email
      account to administer contracts. We used government
      email addresses on official contracting documents in
      an established base such as the one we were at.
J.    PD2 knows that when a requirement goes from
      solicitation to award, certain inapplicable clauses
      fall-off in the contract to include: 52.212-1
      Instructions to Offerors (by reference), and 52 .212-2
      Evaluation-Commercial Items (by full text), and
      52.212-3 Offeror Representations and Certifications
      - Commercial Items (by full text), which remain in
      the alleged awarded contract.



                             5
I question the authenticity of the aforementioned MFR
regarding the notice of award based on the following.

a.     During my deployment, I do not recall awarding a
       contract to Black Tiger Company or otherwise
       working with this contractor.
b.     During my deployment, I do not recall issuing an
       award through a notice of award in the format as it
       appears in the enclosed MFR. If there was a MFR,
       the contractor would not have a copy of it as it
       would be in the government contract file.
c.     If I had drafted the MFR or before I would have
       signed it, I would have indicated or required the
       contractor's entire address and contact information
       to include the full name of the person who
       represented the company that was awarded the
       contract.
d.    The alleged MFR references a "$" symbol and
       numbers following to signify U.S. dollars. If I had
      written a contract amount in a foreign currency as
      reflected in the SF 1449, I would have annotated the
      foreign currency in the MFR for consistency.
e.    The alleged MFR states that the Purchase Order was
      issued on 6 December 2010. However, the SF 1449
      states the award date was on 5 December 2010 and
      the date signed by the Contracting Officer was on
      7 December 2010. For a commercial commodity,
      the date signed and effective date would be the
      same date.
f.    The "7" in the date is a different font/size than the
      rest of the date and at a different height.
g.    The contract number in the middle of the page is in
      a different font than the rest of the sentence.
h.    I would have had major concerns with the last
      paragraph that requests Black Tiger Company to
      acknowledge receipt to Mr. Haywood who is also a
      contractor and does not include the Contracting
      Officer or another government employee. It would
      have been bad business to have a contractor be the
      single point of contact for this acquisition and not
      have any government employees in the loop. This
      is not a practice I would have condoned.



                            6
              1.      The very last sentence states, "Thank you for
                      submitting your quote." This is inconsistent with
                      the purpose of the alleged notice of award. Quotes
                      come before awards.

(R4, tab 16 at 2-3)

        14. From 4 July 2010 until 5 January 2011, TSgt Ransome was deployed
to Tallil Air Base, Iraq, as a CO for United States CENTCOM Contracting Command,
Regional Contracting Center. During that time, TSgt Ransome recalled working with
Mr. Haywood as a CACI DoD contractor, but she did not recall working with anyone
named Meelondrell Park-Laink, Meelondrell Parks-Laing, or Meelondrell Parks. (R4,
tab 16 at 1-2)

        15. In a declaration dated 17 April 2017, Meelondrell T. Lumpkin, formerly
known as Meelondrell T. Parks-Laing from 2010-2011, stated that during that period
she was a Master Sergeant in the United States Air Force who was deployed as a CO,
not a COR, to support the Combined Forces Special Operations Component Command
at Al Udeid, Qatar. She was never assigned to Tallil Air Base, Iraq, and did not travel
to Tallil at any time during her deployment. (R4, tab 15 at 1) Ms. Lumpkin declared
that she did not sign the DD Form 250 that was sent from email address No. 1 to
CO Petkunas, nor did she authorize anyone to sign the form on her behalf, as it was
not part of her responsibilities or practice to sign DD Form 250s. Ms. Lumpkin did
not use, and has never been affiliated with, email address No. 1. (Id.) She stated that
she never worked on the alleged contract, and she did not know or ever work with
TSgt Riddick or Mr. Haywood (id. at 2).

       16. Appellant did not file a Rule 11 brief or provide any evidence in response to
the declarations. The last communication from appellant to the Board was on 15 April
2016, requesting an update on the status of the motion to dismiss decision. The last
communication from the Board to the parties reminded them on 24 July 2017 of the
requirements of the Rule 11 briefing schedule, transmitted to appellant a copy of the
government's initial brief, and advised Black Tiger that the Board had not received a
Rule 11 brief from appellant.


                                      DECISION

      The Parties' Positions

      Appellant's complaint alleges that on 5 December 2010, Black Tiger was awarded
Contract No. W9IGXE-l l-P-0083, to deliver heavy equipment to Tallil Air Base, Iraq



                                           7
(findings 1-2). Appellant claims that it delivered the equipment, but was never paid for
performance of the contract (finding 3).

       The government contends that no contract ever existed between appellant and the
government, and that no equipment was delivered. To support its position, the
government provides numerous declarations under oath from the individuals whom
appellant alleges were involved in the contract award and performance (findings 12-15).

       Discussion

      Board Rule 11 allows the parties to submit an appeal for decision on the record.
The Board has discretion to determine the weight given to any evidence in the appeal.
Board Rule 1 l(d). When appropriate while deciding an appeal under Rule 11, the Board
may rely on the documents contained in the Board's file. Board Rule 1 l(b). Here,
because appellant did not submit a Rule 11 brief, the Board will rely on documents
submitted throughout the course of this appeal.

        Under the Contract Disputes Act (CDA), the Board possesses jurisdiction to
hear appeals "from a decision of a contracting officer ... relative to a contract made by
that department or agency." 41 U.S.C. § 7105(e)(l)(A). The Federal Acquisition
Regulation (FAR) 2.101 defines a contract as: "[A] mutually binding legal
relationship obligating the seller to furnish the supplies or services (including
construction) and the buyer to pay for them. It includes all types of commitments that
obligate the Government to an expenditure of appropriated funds and that, except as
otherwise authorized, are in writing." "The Board's jurisdiction under the CDA is
predicated upon an 'express or implied contract' between a contractor and the
government." ASFA Construction Industry and Trade, Inc., ASBCA No. 57269, 15-1
BCA 136,034 at 176,004 (citing 41 U.S.C. § 7102(a)). The initial burden of proof is
upon the party asserting a right, in this case, appellant. Universal Yacht Servs., Inc.,
ASBCA No. 53951, 04-2 BCA 132,648 at 161,577 (citing Total Maintenance, Inc.,
ASBCA No. 30450, 88-1BCA120,393 at 103,153).

       The government has provided specific and credible evidence in the form of
declarations from the personnel upon whom appellant relies in making its case which
plainly demonstrate that the government had no contract with Black Tiger and that the
documents submitted by Black Tiger to prove the existence of the contract were not
authentic. The Board finds the statements made in the declarations of Boyce Haywood,
TS gt Rebecca Ransome, and Meelondrell Lumpkin persuasive and of great weight.
Appellant has offered no evidence or made any argument to rebut these declarations.
Without such evidence, and in the face of probative government documents to the
contrary, appellant has not met its burden of proof, and relief will not be granted.




                                            8
                                     CONCLUSION

       Black Tiger failed to establish the existence of a valid government contract to
underpin this appeal. Moreover, appellant has failed to rebut credible evidence that a
contract did not exist between the parties. Without the existence of a contract, appellant
cannot meet the requisite burden of proof to establish that it is entitled to relief in this
matter. The appeal is denied.

       Dated: 3 May 2018




                                                   Administrative Judge
                                                   Armed Services Board
                                                   of Contract Appeals



                                                   I concur
 I~


 RICHARD SHACKLEFORD                               J. REIPROlJTY
 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. 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




                                            9
