               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                  )
                                              )
Rawaat Algaidaa Co.                           )      ASBCA No. 59735
                                              )
Under Contract No. W91GF5-07-M-3125           )

APPEARANCE FOR THE APPELLANT:                        Ms. Gaidaa H. Farj
                                                      Owner/Manager

APPEARANCES FOR THE GOVERNMENT:                      Raymond M. Saunders, Esq.
                                                      Army Chief Trial Attorney
                                                     MAJ Michael G. Pond, JA
                                                      Trial Attorney

            OPINION BY ADMINISTRATIVE JUDGE YOUNGER
       ON THE GOVERNMENT'S MOTIONS TO DISMISS FOR LACK OF
                          JURISDICTION

        In this appeal regarding a contract to furnish supplies in Iraq, the Army has
filed two motions to dismiss for lack of jurisdiction, asserting in both that appellant
Rawaat Algaidaa Co. (Rawaat) did not submit a claim to the contracting officer. We
grant the motion and dismiss the appeal.

          STATEMENT OF FACTS FOR PURPOSES OF THE MOTIONS

       1. Effective 28 July 2007, the Army awarded Contract No. W91GF5-07-M-3125
(the contract) to Al Hujaz Company (Al Hujaz) to supply miscellaneous electrical parts
(R4, tab 1 at 2-3). The address for Al Hujaz is specified simply as Balad, Iraq (id. at 1).
Only Al Hujaz is identified as the contractor. There is no indication on the face of the
contract that Rawaat was a party to the instrument (id.).

       2. By Modification No. POOOOl effective 24 August 2007, the government
terminated the contract "due to vendor, Al-Hujaz unable to fulfill the requirements and
non-compliancy to the terms/conditions of the contract. This is in agreement of the
parties." (R4, tab 4 at 1)

      3. The government thereafter reprocured the requirement from Anixter UK Ltd. as
Contract No. W91GF5-07-M-3190 (R4, tab 8 at 1). That contract was completed
successfully and paid in full (R4, tab 9).

        4. By email dated 11 December 2014, Rawaat filed a notice of appeal, asserting
that it was awarded the captioned contract and had delivered copper insulation wires but
had not been paid. The Board thereupon docketed the appeal.
        5. By correspondence to the Board the next day, Rawaat asked the Board to
direct the contracting officer to issue a final decision (Bd. corr. file).

        6. The government did not file an answer. Instead, by date of20 January 2015,
moved to dismiss for lack of jurisdiction. The government stipulated for purposes of the
motion only that it awarded the contract to Rawaat (gov't mot. at 2). The government
argued that the Board lacked jurisdiction because appellant had never submitted a claim
to the contracting officer (id. at 3). The government also sought a stay of proceedings
pending a decision on the motion, as the issue of jurisdiction is dispositive (id. at 5).

       7. By date of20 February 2015, the government filed a second motion to dismiss
for lack of jurisdiction, together with a motion to stay proceedings. The government
argued in this second motion that the appeal should be dismissed because Al Hujaz was
the original contractor, not Rawaat.

                                      DECISION

        "[O]ur [Contract Disputes Act] jurisdiction extends only to appeals by
contractors." CBI Services, Inc., ASBCA No. 34983, 88-1 BCA, 20,430 at 103,337.
Under 41 U.S.C. § 7104(a), only a "contractor" may appeal to the Board. The
definition of a "contractor" is set out in 41 U.S.C. § 7101 (7), which provides that
"[t]he term 'contractor' means a party to a Federal Government contract other than the
Federal Government." We have given effect to this statutory limitation in multiple
contexts. E.g., Binghamton Simulator Co., ASBCA No. 59117, 14-1BCAiJ35,715
(dismissing subcontractor's appeal for lack of evidence of sponsorship by contractor);
CBI Services, 88-1BCA,20,430 at 103,337 (holding that the Board lacked
jurisdiction over appeal by purported assignee); Sheppard's Interior Construction Co.,
ASBCA No. 45902, 97-1BCA,28,744 at 143,471, ajf'd, 152 F.3d 947 (Fed. Cir.
 1998) (table) (holding that substitution of former owner of contractor liquidated in
bankruptcy would defeat jurisdiction).

        As the proponent of our jurisdiction, Rawaat bears the burden of proving by a
preponderance of the evidence that it is the "contractor" within 41 U.S.C. § 7101(7).
On this record, Rawaat has failed to do so. On its face, the contract identifies only
Al Hujaz as the contractor, with no mention ofRawaat (statement 1). Modification
No. POOOOl, by which the contract was terminated, refers to the ''vendor, Al-Hujaz"
(statement 2). Other than uncorroborated assertions by its owner/manager (statement
4), the record contains nothing in any way supporting a contention that Rawaat was
ever the contractor.

        We accordingly grant the government's motion to dismiss the appeal for lack of
jurisdiction. Given this disposition, we deny as moot the government's motion to


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dismiss for failure to submit a claim to the contracting officer. We also deny as moot
the government's motion for a stay of proceedings.

                                    CONCLUSION

       The government's motion to dismiss for lack of jurisdiction is granted. The
government's motion to dismiss for failure to submit a claim to the contracting officer,
and the government's motion for a stay of proceedings, are denied as moot. The
appeal is dismissed for lack of jurisdiction.

       Dated: 19 February 2016



                                                  ALEXANDER YO
                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals


 I concur                                         I concur



/~~
 MARK N. STEMPLER
 Administrative Judge
                                                                  CKLEFORD
                                                  A ministrative 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. 59735, Appeal ofRawaat
Algaidaa Co., rendered in conformance with the Board's Charter.

      Dated:



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



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