                 ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of--                                    )
                                               )
Esood AI Blad Company                          )      ASBCA No. 58425
                                               )
Under Contract Nos. URI#125128                 )
                    URI#125131                 )
                    URI#125136                 )
                    URI#125139                 )

APPEARANCES FOR THE APPELLANT:                        Mr. Soodad A. Ahmad
                                                       Managing Partner
                                                      Mr. Ezhair Hmoodi
                                                       Manager

APPEARANCES FOR THE GOVERNMENT:                       Raymond M. Saunders, Esq.
                                                       Army Chief Trial Attorney
                                                      CPT Nicholes D. Dembinski, JA
                                                       Trial Attorney

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

       Esood AI Blad Company (appellant) seeks $1,212,000 due to the cancellation of
four Memoranda of Agreements (MOAs ). The government moves to dismiss the appeal
for lack of jurisdiction, alleging that appellant has not submitted a certified claim as
required by the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 and that the
MOAs are not contracts within the meaning of the CDA. Appellant opposes dismissal.

           STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

        1. In April2010, CPT Dolph Watts, the Project Purchasing Officer (PPO) for the
Commanders' Emergency Response Program (CERP) at Camp Liberty, Iraq, issued four
MOAs to appellant to supply equipment for the Taji, Istiqlal, Madain, and Tarmiyha
irrigation projects. 1 The MOAs contained substantially identical provisions.

1
    The CERP was created by the Emergency Supplemental Appropriations Act for
         Defense and for the Reconstruction of Iraq and Afghanistan, 2004.
         Pub. L. No. 08-106; 117 Stat. 1215 § 1110, to enable military commanders to
         respond to urgent humanitarian relief and reconstruction requirements for the Iraqi
         people. Commanders were prohibited from using CERP funds to provide a
         "Direct or indirect benefit to U.S., coalition, or supporting military personnel."
         DoD 7000.14-R, vol. 12, ch. 27, § 270301.
       2. Paragraph 2 of the MOAs provided, in part, as follows:

                    a. The purpose of this project is to provide a wheeled
                       excavator, as per the specifications listed in the
                       SoW [Scope of Work], and a Toyota HILUX
                       Pickup truck and associated filters and training for
                       the Ministry of Water Resources ....



                    c. Cost of the contract is $303,000.00 USD.



                    g. This agreement does not become effective until
                       funding is approved and a Notice To Proceed
                       [NTP] is signed by both parties. '

                    h. Joint Forces reserve the right to cancel the contract
                       at any time for any reason. In the event this
                       happens, payment will be made for the percentage
                       of work complete.

(R4, tabs 1-4)

       3. The Scope of Work specified Liebherr excavators (R4, tabs 5-8).

       4. CPT Watts issued the Taji MOA on 25 April20IO. Mr. Ezhair Hmoodi,
appellant's manager, signed the MOA. (R4, tab I at GOV002) CPT Watts issued the
MOAs for the Istiqlal, Madain, and Tarmiyah projects on 29 April20IO (R4, tabs 2-4).
The copies of the MOAs in the record were not signed by appellant. However, in other
evidence, appellant acknowledges that it signed all four MOAs and we so find.
(SOF ~II)

       5. CPT Watts issued the NTP for the Taji MOA on 25 April20IO (R4, tab 13 at
GOV041). He issued the NTPs for the Madain and Tarmiyah MOAs on 29 April20IO.
The NTP for the Istiqlal MOA was issued on 30 April2010. (R4, tabs 9, IO, I2) None
of the NTPs in the record bear appellant's signature.

       6. The delivery date for the equipment was 5 June 20 I 0 (R4, tab I6 at GOV04 7).

     7. Appellant allegedly purchased four Liebherr excavators and four Toyota
HILUX pickup trucks from Wahab Technical Supplies (Wahab) on 29 April, I May, and

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3 May 2010. The invoices stated that the excavators would be delivered to the Port of
Basrah in 28 days and that the pickup trucks would be delivered in 14 days. (R4, tabs 11,
13-15) The purchase price was $941,600 ($235,400 for one excavator and one pickup
truck). The terms of the sale required appellant to prepay 50 percent of the purchase
price or $470,800 ($117,700 for one excavator and one pickup truck). The prepaid
amount was not refundable. (!d.)

       8. On or about 8 May 2010, appellant requested a 30-day extension of the
delivery date (R4, tab 16 at GOVOS0-52).

      9. On 8 May 2010, CPT Watts cancelled the MOAs, stating as follows:

                     I will have to exercise paragraph 2h of the [MOA] on
             all four contracts .... Extension of the contracts to 60 days
             from your bid and contract agreement of 30 days is not
             acceptable. As these contracts were purchase contracts and
             were contracted to be payable in full upon delivery, the[y] are
             considered to be at 0% completion and no partial payment is
             planned.... By signing the [MOA] you signified that you
             were still able to complete the contract within the agreed
             upon conditions. Failure to be able to do so is a breach of
             contract on your part.

(R4, tab 16 at GOV049-50)

       10. On 21 May 2010, CPT Watts emailed appellant as follows:

             As we have told you repeatedly, [t]hese contracts are
             cancelled. The original delivery date ... was critical. I will
             soon lose my computer access as our unit prepares to leave
             the Iraq theatre. We do NOT have a replacement unit to carry
             on our projects .... We will not purchase Sumitomo
             excavators and we will not extend the project deadlines.
             Unless you can deliver the original[ly] bid Leibherr
             excavators by the first week in June (the original bid
             dates) ... there is nothing left to discuss or consider.

(R4, tab 16 at GOV046)

      11. On 30 June 2011, appellant emailed an uncertified claim to the Rock Island
Contracting Center, stating as follows:

             I have signed Four Contracts [w]ith [the 16th Engineer
             Brigade] in 20 10 but after 15 days of the award and after we

                                            3
             have purchased the equipments [w ]e have received email
             from the [PPO] said ((we are not longer in Iraq)) but we have
             purchased the equipments and we have paid more of
             $ 500,000 and because this projects our company has been
             damaged ... please could you ... help me[.]

(R4, tab 17 at GOV057)

       12. On 10 August 2011, Ms. Joan F. Wysoske, the contracting officer, denied
appellant's claim, stating as follows:

             No work was performed, nor delivery of goods was ever
             made or contractually agreed upon. As clearly stated in
             paragraph 2, section (g), of each MOA, "This agreement does
             not become effective until funding is approved and a [NTP] is
             signed by both parties". Funding was never approved, nor
             was a contract ever signed between either party.

(R4, tab 30 at GOV178-79)

       13. On 1 October 2011, COL James E. Simpson, the Senior Contracting
Official-Iraq, affirmed the denial of the claim, stating, that:

                    Esood failed to provide ... proof that Liehberr [sic]
             Excavators or Toyota Pickup Trucks were actually ordered,
             received and fully paid for. My staff researched [Wahab] in
             Dubai and learned that this company sells computer and
             photographic equipment and accessories. Further, an attempt
             to reach the Sales Manager who signed each invoice was
             unsuccessful.

(R4, tab 33 at GOV193-94, ~ 2.b.)

     14. On 4 December 2012, appellant appealed the denial of its claim to this Board.
We docketed the appeal as ASBCA No. 58425.




                                           4
                                        DECISION

      In order for the Board to have jurisdiction of a claim of more than $100,000 under
the CDA, the contractor must certify that:

                              (A) the claim is made in good faith;
                              (B) the supporting data are accurate and complete
                      to the best of the contractor's knowledge and belief;
                              (C) the amount requested accurately reflects the
                      contract adjustment for which the contractor believes
                      the Federal Government is liable; and
                              (D) the certifier is authorized to certify the
                      claim on behalf of the contractor.

41 U.S.C. § 7103(b)(1). A defective certification does not deprive the Board of
jurisdiction; however, the complete absence of a certification is not a jurisdictional defect
that can be corrected after an appeal has been filed. New Iraq Ahd Company, ASBCA
No. 58800, 14-1 BCA ~ 35,479.

        The CDA does not define the term "claim." Appellant submitted a written
demand for payment of $500,000 by email on 30 June 2011. However, there is no
indication from the email that appellant provided the required certification necessary for
this to be considered a claim under the CDA. The absence of the certification is fatal and
not a defect that can be corrected. As a result, no claim was submitted to the government
and the Board lacks jurisdiction over the appeal.

                                      CONCLUSION

       Because appellant's demand for payment of$500,000 was not certified, it does not
constitute a claim under the CDA. The government's motion is granted and the appeal is
                                                      2
dismissed without prejudice for lack of jurisdiction.

         Dated: 4 April2014


                                                  cJ-::rJ.,<~
                                                   LIZ    ETH A. TUNKS
                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals
(Signatures continued)

2
    We express no opinion on any other jurisdictional defects that may or may not be
        present.
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I concur                                       I concur




~~~··.
Administrative Judge                           Admini rative Judge
Acting Chairman                                Acting ice 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. 58425 Appeal ofEsood AI
Blad Company, rendered in conformance with the Board's Charter.

      Dated:



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




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