ASBCA 60316

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) The Adamant Group for Contracting and ) ASBCA No. 60316 General Trading ) ) Under Contract No. W91QEK-04-W-4987 ) APPEARANCE FOR THE APPELLANT: Mr. Bassim Ali Owner APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ Bruce L. Mayeaux, JA CPT Harry M. Parent III, JA Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE MELNICK ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT In this appeal, The Adamant Group for Contracting and General Trading (Adamant) seeks payment for cement that was the subject of a 2004 contract with the United States Army. The government correctly observes that Adamant's claim is time-barred. Accordingly, summary judgment is granted to the government. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION The following facts are uncontroverted. On 27 September 2004, the United States Army Contracting Command-SWA awarded the firm-fixed-price contract referenced above to Adamant (R4, tab 1). Adamant was to deliver 650 tons of bulk cement to LSA Anaconda, along with a 30-ton silo, and receive payment of $85,550 ($81,250 for the cement and $4,300 for the silo) (R4, tab 1 at 1-2). Adamant delivered the silo and invoiced the government $4,300 for it on 5 October 2004 (R4, tabs 2-3). The government's representative, ILT David Hamilton, executed a DD Form 250 noting receipt on that date (R4, tab 2). On 13 October 2004, Adamant's owner, Mr. Bassim Ali, emailed ILT Hamilton that he had not yet received payment for the silo and that he would visit ILT Hamilton the next day. On 14 October, IL T Hamilton responded that the matter had "been submitted to contracting" and that Mr. Ali "need[ed] to go see contracting ILT Turner." (R4, tab 6 at 2)  Nearly nine years later, on 25 September 2013, Mr. Ali contacted Ms. Joan Wysoske, Chief, Reachback Closeouts of the United States Army Contracting Command-Rock Island, requesting help on an open contract, saying he had not received payment. Subsequent emails continuing into 2015 informed Mr. Ali that information about the contract could not be located. (Compl., attachs.; R4, tabs 5-6, 8, 10-13) On 23 July 2015, Mr. Mark Paulson, a Reachback Division Contract Specialist, notified Mr. Ali he had been assigned to the case and reiterated the need for information. On 27 July, Mr. Ali provided to the government an invoice dated 5 October 2004 for 650 tons of cement in the amount of $81,250, and an undated DD Form 250 for the same product and price, both bearing lLT Hamilton's name as the purported recipient. (R4, tab 11) The government disputed those documents, and by email dated 18 August 2015 Mr. Paulson informed Mr. Ali that the invoice would not be paid (R4, tabs 12-14). In an email to Mr. Paulson dated 20 September 2015, Mr. Ali complained about the "frozen payment" of his invoice and requested Mr. Paulson ask lLT Turner, who Mr. Ali previously identified as the contracting officer (R4, tab 12 at 2), to address the issue (R4, tab 13 at 1-2). By email dated 7 November 2015, Mr. Ali filed a notice of appeal with the Board. On 24 November he filed a complaint stating that he received the silo payment but was "still looking for the Bulk Cement payment." The complaint attached Mr. Ali's 5 October 2004 invoice and DD Form 250. DECISION The government seeks summary judgment because Adamant failed to submit a claim to the contracting officer within six years of its accrual, as required by the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. Under the CDA, the Board's jurisdiction is dependent upon Adamant submitting a written claim to the contracting officer, followed by a decision or deemed denial. 41 U.S.C. § 7102-7105; Taj Al Safa Co., ASBCA No. 58394, 13 BCA ~ 35,278. Though not a condition of jurisdiction, the CDA also requires the claim to be submitted within six years after its accrual. 41 U.S.C. § 7103(a)(4); Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 757 (2016); Sikorsky Aircraft Corp. v. United States, 773 F.3d 1315, 1320 (Fed. Cir. 2014). The government correctly declines to suggest there is no claim. Indeed, after the government stated on 18 August 2015 that Adamant's invoice for the cement was rejected, Adamant complained in writing on 20 September to Mr.