                 ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of -                                       )
                                                  )
Golden Build Company                              ) ASBCA No. 62294
                                                  )
Under Contract No.       W91B4M-09-P-7340         )

APPEARANCE FOR THE APPELLANT:                        Mr. Mahmood Nezam
                                                      Chief Executive Officer

APPEARANCES FOR THE GOVERNMENT:                      Scott N. Flesch, Esq.
                                                      Army Chief Trial Attorney
                                                     LTC Stephen M. Hernandez, JA
                                                      Trial Attorney

                     OPINION BY ADMINISTRATIVE JUDGE PAUL
                    ON THE GOVERNMENT’S MOTION TO DISMISS

       This was a contract for the performance of services at a Forward Operating Base
(FOB) in Afghanistan. The Contract Disputes Act (CDA), 41 U.S.C. §§7101-7109, is
applicable. The contract was never performed, yet appellant Golden Build Company
(GBC) purports that it has filed a claim. The government moves to dismiss the appeal for
lack of jurisdiction.

          STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1

       1. On September 15, 2009, the Army and GBC entered into Contract
No. W91B4M-09-P-7340 (R4, tab 1 at 1-2). The statement of work (SOW) stated the
following “[] REQUIREMENT: This Operations and Maintenance (O&M) contract,
including cleaning services for latrines/showers and other common facilities/spaces, is for
the [Afghan National Army] [(]ANA[)] Forward Operating Base (FOB) Sheberghan.
The contractor is to provide maintenance, servicing and cleaning of facilities and utilities
that support the ANA FOB.” (R4, tab 2 at 1)

      2. On October 5, 2009, the CO executed Modification No. P00001 which
removed the possibility of issuing contract options (R4, tab 5). 2

       3. On January 22, 2010, the CO notified GBC that “there [was] nothing at the
location for you to do. This is because no men are there for you to support.” (R4, tab 6)

1   We cite these facts solely for purposes of resolving the motion.
2   Modification No. P00002 transferred the administration office of the contract (R4, tab 7).
      4. On August 26, 2010, the CO executed Modification No. P00003 which
decreased the contractual amount from $119,906 to $617 (R4, tab 8). GBC signed the
Modification on August 27, 2010 (R4, tab 9).

       5. On July 29, 2013, and once again on June 14, 2014, the Army forwarded
release of claims letters to GBC (R4, tabs 11, 13). On July 17, 2014 the Army forwarded
an email to GBC, asking whether the contract had ever been performed (R4, tab 15).
There is no record evidence demonstrating that GBC ever responded to any of these three
communications (R4, passim).

       6. On August 21, 2014, five years after the contract was executed, the CO wrote a
memorandum of record, asserting that the total funded amount of the contract would be
de-obligated (R4, tab 17). This contractual action was effectuated on August 23, 2014
(gov’t ex. 1).

       7. There is no record evidence demonstrating that the CO ever received a claim
regarding this unperformed contract; accordingly, the CO never issued a final decision
under this contract (R4, passim). Nevertheless, GBC filed a notice of appeal which was
docketed as ASBCA No. 62294.

                                       DECISION

       Upon receiving the notice of appeal, the Army filed a motion to dismiss for lack of
jurisdiction. GBC has not filed a substantive response to this motion, which is supported
by sworn declaration of key government personnel.

       It is axiomatic that, in order for this Board to review an appeal under the CDA,
there must be an underlying claim. Here, no such claim exits. Therefore, we must grant
the government’s motion to dismiss for lack of jurisdiction. See Parsons Evergreene,
L.L.C., ASBCA No. 57794, 12-2 BCA ¶ 35092 at 122,346.




                                            2
                                    CONCLUSION

      The appeal is dismissed for lack of jurisdiction.

      Dated: July 9, 2020



                                                  MICHAEL T. PAUL
                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals


 I concur                                           I concur



 RICHARD SHACKLEFORD                                OWEN C. WILSON
 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. 62294, Appeal of Golden
Build Company, rendered in conformance with the Board’s Charter.

      Dated: July 9, 2020




                                                PAULLA K. GATES-LEWIS
                                                Recorder, Armed Services
                                                Board of Contract Appeals




                                            3
