               .ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                   )
                                               )
Hejran Hejrat Co. LTD                          )      ASBCA No. 61234
                                               )
Under Contract No. W5J9JE- l l-C-O 115         )

APPEARANCE FOR THE APPELLANT:                         Joseph A. Hennessey, Esq.
                                                       Chevy Chase, MD

APPEARANCES FOR THE GOVERNMENT:                      Thomas J. Warren, Esq.
                                                       Acting Engineer Chief Trial Attorney
                                                      Pietro 0. Mistretta, Esq.
                                                      Aimee L. Rider, Esq.
                                                       Engineer Trial Attorneys
                                                       U.S. Army Engineer District, Middle East
                                                       Winchester, VA

               OPINION BY ADMINISTRATIVE JUDGE KINNER ON
                  THE GOVERNMENT'S MOTION TO DISMISS

       The Army Corps of Engineers (the Corps) moves to dismiss the appeal of Hejran
Hejrat Co. LTD (HHL) for its failure to comply with the requirements for our jurisdiction
pursuant to the Contract Disputes Act (CDA) 41 U.S.C. § 7103(b)(l).

            STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

        After several rounds of price negotiations, the Corps awarded HHL a contract
for lease of armored utility vehicles for use in Afghanistan (comp I. ,r,r 17-20; R4,
tab 10). Corps personnel scheduled meetings to prepare for implementation of the
contract (compl. ,r,r 25-26, 28). Prior to the second scheduled meeting, HHL was
directed by the contracting officer to suspend all work because the contract was
suspended, apparently due to a bid protest (compl. ,r,r 33, 35; R4, tab 30). The Corps
took corrective action in response to the protest, which included obtaining resubmission
of proposals without re-solicitation ( compl. ,r 40). On 8 August 2011, HHL was again
awarded the contract, although the original award had only been suspended (compl.
,r 50; R4, tab 32). HHL informed the contracting officer that it incurred additional costs
due to the time necessary for the corrective action, the reduction of the contract price,
and a delay in the issuance of the notice to proceed ( comp I. ,r 54 ). There is no evidence
whether the Corps considered HHL's concerns regarding additional costs. Instead,
Modification No. POOOOl was issued 14 August 2011 (compl. ,r 53; R4, tab 11). The
unilateral modification lifted the prior award suspension; decreased the contract price
from $9,364,707 to $8,787,800; revised the performance work statement to reflect
delays in government furnished equipment; declared that an equitable adjustment due
to the suspension was not required and that the Corps was absolved of any claims due
to that suspension (id.).

       Before the end of the performance period, in July 2012, HHL was informed the
Corps would not exercise an option on the contract ( comp I. 1 68; R4, tab 50). When
asked for a final invoice and a release of claims to close out the contract, HHL
informed the Corps that it was due additional payments and some vehicles were
missing (compl. 174). HHL's requests for additional payment were made by
submitting invoices (compl. 1174, 77; app. supp. R4, tab 79 at 451; R4, tabs 78-80).
The invoices requested $4,137,964 of additional compensation (compl. 1177, 82). On
12 September 2013, a contracting officer, Sara Jackets, responded to HHL's three
mv01ces:

             This letter is in response to your three (3) invoices
             HHL-USACE/015, HHL-USACE/016 and HHL-USACE/016
             submitted for contract W5J9JE-l 1-C-0I l5 on 22 August 2013.
             Although you used the word 'claim' and 'compensation' in your
             email and invoices, I have treated this as a request for equitable
             adjustment (REA) because it is not clear that you were seeking a
             contracting officer's final decision.

(R4, tab 59) Ms. Jackets asked HHL to inform her if the company intended to submit a
claim or sought a contracting officer's final decision (id.). In a 31 January 2014 email,
HHL specifically informed the Corps that it had not intended the email submitting its three
invoices to be considered an REA (R4, tab 64 at 8-9). With respect to the 31 January 2014
email, however, HHL explained the purpose of that email: "We therefore ask you to treat
this email together with the supporting documents as a REA. In the event that you decide to
treat this email as REA and still reject our request for the adjustment of payments, we would
then proceed with issuing a certified claim." (Id.) The email contained descriptions of the
grounds for additional payment: "1. Compensation of cost reduction due to unfair reposting
of solicitation and divulging of our company's awarded price and the loss of rental fee
compensation for a period of two months"; "2. Compensation as result of modification # 4,
Add and Remove Clause which resulted in early return of vehicles"; "3. Compensation Cost
for 4 missing Armored vehicles plus rental fee for the 4 vehicle for a period 16 months"; "4.
Revision of invoices for leasing"; "5. Cost for Unscheduled Maintenance" (id. at 9-12).
HHL emphasized its intent that the email, with the submitted supporting documentation, be
considered an REA: "We reiterate that this email together with the supporting documents
be treated as a REA" (id. at 13). HHL did not request a contracting officer's final decision
or provide a certification with that email (id.). HHL sent a similar email, forwarding
revised invoices, on 16 April 2014 (compl. 182; R4, tab 64 at 6).



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         Notwithstanding its 31 January and 16 April 2014 emails, HHL asserts that it
did not attempt to submit.an REA until March 2015 (compl. ,r,r 81, 83). In an email on
5 March 2015, HHL requested additional payment for the same five reasons, providing
similar statements of fact and argument for each, primarily expanding its argument for
its first ground (app. supp. R4, tab 98). HHL also submitted a "Sworn Statement in
reference to (REA)" (app. supp. R4, tab 97). The swor[n] statement was executed by
Dr. Amarkhil, the deputy managing director ofHHL. In that statement Dr. Amarkhil
provides a signed "affidavit" that the following statement is true: "The clauses and
points reflected in REA (Request for Equitable Adjustment) in reference to
contract# W5J9JE-11-C-0115, to the best of my knowledge are true." (Id.,
emphasis in original)

         In May 2015, HHL contacted the original contracting officer, Daniel Portillo, by
email because it had not received a response to its REA ( compl. ,r 84 ). Mr. Portillo
responded by email telling HHL "We should be providing you the Contracting
Officer's final decision by the end of this week" (app. supp. R4, tab 101). Mr. Portillo
immediately followed that message with an email that contained a PDF document titled
"Response to REA" (app. supp. R4, tab 100). Whatever Mr. Portillo's response, HHL
understood it to be an unsigned answer to its 16 April 2014 email, not a response to its
"formal" REA submitted 5 March 2015 (compl. ,r 86; R4, tab 66). Mr. Portillo's
response rejected HHL's invoices, but did not contain any indication that it should be
considered a contracting officer's final decision (R4, tab 66). In either event, HHL
again clarified that neither its January or its March email were intended to be a claim
(app. supp. R4, tab 107) ("I would like to know if there is any time frame during which
we could accept the final decision or submit our claim."). Mr. Portillo informed HHL
that it "may have a claim on the things discussed in our decision" (app. supp. R4,
tab 108).

       HHL continued to contact the Corps regarding its REA, sometimes through
unusual sources (compl. ,r,r 95-99 (e.g. HHL sent messages to Corps headquarters via
Facebook.)). In February 2016, Ms. Cherita Williams assumed responsibility for HHL's
contract (compl. ,r 100). HHL pursued a decision from Ms. Williams. In her decision
on 26 March 2017, she found no merit in the REA and advised HHL to follow the
procedure in the contract's disputes clause (R4, tab 2 at 6). The government did not
issue a contracting officer's final decision in accordance with the CDA on the REA.
HHL responded to Ms. Williams' 29 March 2017 decision to express its disagreement
and stated "we will refer to FAR clause 52.233-1, Disputes (Jul 2002) for our rights
under the subject contract" (R4, tab 77). In its appeal to the Board, HHL identified no
final decision on the subject of the appeal.




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                                       DECISION

        While a valid claim under the CDA must contain "a clear and unequivocal
statement that gives the contracting officer adequate notice of the basis and amount of
the claim," the claim need not take any particular form or use any particular wording.
Northrop Grumman Computing Systems, Inc. v. United States, 709 F.3d 1107, 1112
(Fed. Cir. 2013) (citing Contract Cleaning Maint., Inc. v. United States, 811 F.2d 586,
592 (Fed. Cir. 1987). "All that is required is that the contractor submit in writing to the
contracting officer a clear and unequivocal statement that gives the contracting officer
adequate notice of the basis and amount,ofthe claim." Id. HHL's submission of its
requests for upward adjustment of the contract price also identified a dollar amount
requested for each. In those submissions HHL adequately described five grounds why
it is owed more money, and the sum certain being requested for each. But those are
only two of four required elements of a claim. In addition to explaining the reason for
the claim and the amount requested, a claim must also include a request for a final
decision from the contracting officer and a certification if the amount sought is greater
than $100,000. M Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327-29
(Fed. Cir. 2010). Although we are sympathetic to HHL, its continued express
disavowal of the notion that it sought a contracting officer's final decision prevents us
from finding that its communications constituted a CDA claim.

        At no point, in six years of communication with the Corps, has HHL requested a
contracting officer's final decision. Making such a request "does not require an explicit
request for a final decision, as long as what the contractor desires by its submissions is
a final decision, that prong of the CDA claim test is met." James M Ellett Constr. Co.
v. United States, 93 F.3d 1537, 1543 (Fed. Cir. 1996). Yet, HHL has avoided language
that can fairly be interpreted as a request for a final decision. Contracting officer
Jackets asked HHL if the invoices it submitted were intended to be a claim, and ifHHL
was requesting a final decision. In response, HHL insisted the Corps should consider
its invoices an REA.* Thus, when given the chance, it declined to ask for a final
decision or identify the invoices, or any of its submissions, as a claim. HHL
demonstrated that it understood the significance of the contracting officer's inquiry.
She informed HHL that more was required for a claim than the REA it submitted.
Corps personnel directed HHL to the resource in its contract, the disputes clause
48 FAR 52.233-1 (R4, tab 10 at 31 ), that provides instructions on how to submit a
claim. HHL repeatedly acknowledged that direction and stated that it would follow the
procedure of the disputes clause, but did not.

* Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed. Cir. 1995) provides that even a
       document captioned as an REA may constitute a claim so long as the necessary
       characteristics of a claim are met. Here, HHL's problem is not merely the REA
       label it used, but that, under these circumstances, HHL disclaimed its desire for a
       COFD.

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       HHL counters that the Corps unambiguously treated its submissions as a claim
(app. opp'n at 13, ,r 66). HHL points to the statements by a contract specialist that
characterized its invoices as a claim (id. at 6, ,r 28). Likewise, HHL refers to statements
by contracting officer Mr. Portillo that he would send a final decision, and that he sent a
document labelled final decision, to support jurisdiction for its appeal (id. at 8, ,r,r 34-35).
These references do not help HHL's argument. A contracting officer's characterization
of a submission by a contractor cannot establish that a CDA claim has been submitted.
There can be no contracting officer's final decision on a claim if the contractor has not
requested that decision from the contracting officer. 41 U.S.C. § 7103(a), (b); Maropakis,
609 F.3d at 1327 (citing Ellett, 93 F.3d at 1543); Engineered Demolition, Inc., ASBCA
No. 54924, 06-1 BCA ,r 33,125. Mr. Portillo could not issue a final decision because
HHL did not request a contracting officer decision.

        We note that the government has argued that another basis for finding lack of a
valid claim in the absence of a proper certification. To be sure, the certification
provided by HHL was inadequate to the requirements of the CDA, however, HHL did
make an attempt to include a certification here (one that tracks closely with the REA
certification requirements) and in the case of a defective certification, we maintain
jurisdiction over the appeal so long as the defects are remedied prior to final judgment.
41 U.S.C. § 7103(b)(3); Tokyo Co., ASBCA No. 59059, 14-1 BCA ,r 35,590 at 174,392.

                                          CONCLUSION

       The government's motion is granted and the appeal is dismissed.

       Dated: 23 April 2018




                                                     Administrative Judge
                                                     Armed Services Board
                                                     of Contract Appeals

(Signatures continued)




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 I concur                                        I concur

     ~ · ·




 RICHARD SHACKLEFORD                             J. REID PROUTY
 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. 61234, Appeal ofHejran
Hejrat Co.LTD, rendered in conformance with the Board's Charter.


      Dated:



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




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