               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                 )
                                             )
Favor Company                                )      ASBCA No. 58843
                                             )
Under Contract No. 000000-00-0-0000          )

APPEARANCE FOR THE APPELLANT:                       Mr. Majid Hamid
                                                     President

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

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

        Appellant Favor Company (Favor) filed a notice of appeal (NOA) with the
Board to which was attached a document identified by Favor as a contract. The
government filed a motion to dismiss for lack of jurisdiction. The purported contract
(SOF if 1) does not contain a disputes clause. It has not been alleged that we have
jurisdiction over the alleged contract under anything other than the Contract Disputes
Act (CDA). We grant the motion.

       STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

       1. The record contains a Memorandum for Record dated 16 June 2007 which
contains the following information:

               SUBJECT: Contract for the delivery of Rice, Flour and
               Cooking Oil

               1.1 Project Name: Rice, Flour and Cooking Oil for
               Humanitarian Assistance

               1.2 Coalition Organization Requesting Contract:

                     CPT David Cartwright Jr.
                     3rd BCT, Project Purchasing Officer
                     FOB Warhorse, Iraq ...
              1.3 Contractor Info:

                     ... Favor Company ...

              1.4 Content of Proposal: The Contractor will deliver Rice,
              Flour and Cooking [Oil] as outlined in the scope of work to
              FOB Warhorse.

              1.5 Schedule of Work: The Contractor will deliver all of
              the Rice, Flour and Cooking Oil in one shipment. All
              Rice, Flour and Cooking Oil will be delivered to FOB
              Warhorse, Iraq. . . . The Contractor will discuss any need
              to deviate from the scope of work with the Project
              Coordination Cell before doing so. The Projects
              Coordination Cell is the only agency with the authority to
              permit the Contractor to deviate from the scope of work
              and the only agency that can issue orders to the
              Contractor....

              1.6 Cost of Work: $15,000.00. The Contractor is
              expected to purchase his materials at the price that he
              included in the Scope of Work. Any deviation from the
              agreed purchases or increase in cost of materials will be at
              the expense of the Contractor.

              1. 7 Purchase Request and Commitment Number:
              CP3CAV71413546 BN BULK

             1.8 Performance Time: The Contractor has 15 days to
             complete the project. The Contractor will notify the
             Coalition Project Manager if he thinks that he will go past
             schedule ....



             1.10 Payment: The Contractor will be paid 100% of
             payment upon delivery of the goods.

(R4, tab 3) The document was signed by Coalition Project Manager/Project
Purchasing Officer CPT David Cartwright Jr., Assistant Coalition Project
Manager/Paying Agent CPT Joseph C. Catamisan, and Shawqi Ali on behalf of Favor
(id.). It is this document that appellant contends is a contract over which this Board
may exercise jurisdiction.


                                             2
      2. The government paid for supplies delivered under CP3CAV71413546 in full
by voucher No. 207399 dated 3 August 2007 (R4, tab 6, Raymond decl. if 4).

       3. The record shows that the first contact by Favor seeking the alleged payment
now at issue (see SOF if 4) was on 10 April 2013 (R4, tab 7, Wysoske decl. if 2). The
record contains the declaration of Joan Wysoske, Contracting Officer (CO) and Chief
of the Reachback Closeouts Office for the U.S. Army, that stated:

              4.     The appellant's Agreement is not a standard
              contract. The Agreement appears to be a Commanders'
              Emergency Response Program ("CERP") agreement based
              upon the PR&C numbering system, type of services
              purchased, and general document format. ...



              6.    [T]he appellant's Agreement does not exist in the
              government contract retrieval and archival systems.



              8.      To date, the appellant has not submitted a contract
              that is signed by a contracting officer. Also, to date, the
              appellant has not submitted an agreement with a contract
              number.

              9.     Donna Raymond of ARCENT did inform the
              contractor that the agreements that he provided had been
              paid. The contractor also repeatedly asked Donna Raymond
              and ARCENT to provide a copy of the voucher or payment
              documents. To date, the appellant, in support of his
              payment request, has only submitted documents of a service
              that has already been paid.

              10.    Furthermore, to date, the appellant has not
              submitted [a] valid claim or any other claim documentation
              to ACC-RI as required by the Contract Disputes Act,
              41 U.S.C. § 7103 and FAR 52.233-1 DISPUTES (JUL 2002).
              Accordingly, neither me [sic] nor my office has issued a
              contracting officer's final decision[.]

(R4, tab 7)


                                           3
       4. On 21 August 2013 Favor emailed a NOA to the Board. The appeal was
docketed as ASBCA No. 58843. Favor agrees that it was paid in full under
CP3CAV71413546, but alleges that it has never been paid under CP3CAV71413546
BN BULK (Bd. corr. ltr. <ltd. 1November2013). We find nothing in the record to
indicate that CP3CAV71413546 and CP3CAV71413546 BN BULK are different
agreements and we find that they are one and the same.

       5. On 23 August 2013 the Board sua sponte directed Favor to submit proof of
the existence of a claim in accordance with the CDA, 41 U.S.C. §§ 7101-7109, no later
than 13 September 2013. On 2 September 2013 Favor responded:

              I would like to tell you that my regarding issue for my
              contract payment, I was sent an email to Donna M
              Raymond and I asked her about my contract payment and
              on date 10 May 2013 her replied was (This has been paid
              in full, but we will have our legal dept review and verify.
              This may take up to 60 days.) After that I told her that I
              need the voucher for this contract's payment but no reply
              from her. On date 24 Jun 2013 she told me that (We will
              prepare a package and send it to our legal department to
              respond to you.) But when I have sent her many of an
              email to her I received an email from her on date 31 Jun
              2013 and she told me that (We are unable to send this to
              legal without the proper backup information.)

              Please I make a solution regarding my payment issue as
              soon as possible.

             Please I will be waiting your reply.

Favor has never produced evidence of a claim under the CDA.

                                      DECISION

        The government's motion to dismiss for lack of jurisdiction argues that the
appeal suffers two jurisdictional defects: (1) that the appeal arises under a CERP
agreement to provide humanitarian aid for the benefit of the Iraqi people and does not
arise under a procurement contract for goods and services for the U.S. Government;
and, (2) that there is no evidence in the record of a claim submitted by Favor to a CO
for a final decision under the CDA.




                                           4
        It is well established that the linchpin of our jurisdiction under the CDA is a
proper claim submitted to a CO for decision. 41 U.S.C. § 605 1; Zara Co., ASBCA
No. 58632, 14-1BCAii35,588; The Boeing Co., ASBCA No. 57490, 12-1 BCA
ii 34,916 at 171,676. Because it is a jurisdictional prerequisite, compliance with
41 U.S.C. § 605 is mandatory and strictly enforced. Sharman Co. v. United States,
2 F.3d 1564, 1568-69 (Fed. Cir. 1993). Despite multiple requests from the
government and the Board, appellant has not produced either a copy or any other
evidence of a proper CDA claim submitted to a CO for decision. We are, therefore,"
without jurisdiction to consider the present appeal under the CDA and need not
address the government's second alleged basis for lack of jurisdiction.

                                     CONCLUSION

         The government's motion to dismiss for lack of jurisdiction is granted.

         Dated: 16 October 2014



                                                 ~~
                                                 DIANAS        ICKINSON
                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals


I concur                                          I concur



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




1
    Effective 4 January 2011, 41 U.S.C. § 605 was re-codified as 41 U.S.C. § 7103, with
         no substantive change. Because the relevant facts at issue in this appeal
        occurred prior to 2011, we refer to the section number prior to the
        re-codification.

                                             5
     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. 58843, Appeal of Favor
Company, rendered in conformance with the Board's Charter.

      Dated:


                                                JEFFREYD. GARDIN
                                                Recorder, Armed Services
                                                Board of Contract Appeals




                                          6
