ASBCA 60723

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Elizabeth Construction Company ) ASBCA No. 60723 ) Under Contract No. 000000-00-0-0000 ) APPEARANCE FOR THE APPELLANT: Ms. Mariam Sharifi CEO and President APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ Elinor J. Kim, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE HARTMAN ON THE GOVERNMENT'S MOTION TO DISMISS Appellant believes a base access determination made by the Department of the Army based on information or documents appellant submitted to the Army via a Department of Defense website to be "erroneous" and seeks review by us of that determination. The Army seeks dismissal of appellant's appeal for failure to assert a claim within our jurisdiction. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION In August 2016, the Board received an email from appellant, Elizabeth Construction Company (ECC), stating "Please find attached notice of appeal, thank you very much." Attached to the email was (1) a sheet setting forth various data (e.g., the names ofECC's officers, date of establishment, address, "Legal Status" in Afghanistan, "AISA" registration, phone number, tax identification number, email account, DUNS number, NCAGE Code, and JCSS Vendor identification number); and (2) a document stating as follows: With due respects, This appeal is for my JCCS, our company established in 2016, we upload all the required documents in the JCCS, they denied our company for the base access which is I am sure error decision, there was no other option or other office to contact and solve this issue, that is why I appeal with ASBCA to solve our problem.  Our current POC for the JCCS in Afghanistan is SFC Natasha natasha.s.mckellum.mil@mail.mil I respectfully from Board please help to solve this issue, thank you very much. Very Respectfully, Ms. Mariam, Sharifi CEO and President Elizabeth Construction Company (Syntax and punctuation in original) The Board docketed this correspondence as appeal ASBCA No. 60723. Less than two weeks later, the Department of the Army filed a motion to dismiss the appeal for lack of jurisdiction and a motion to stay proceedings. In its motions, the Army contends: (1) "appellant neither alleges nor establishes that an express or an implied contract even exists to invoke jurisdiction" under the Contract Disputes Act (CDA); (2) appellant "neither alleges nor establishes that a claim was submitted" to a contracting officer; and (3) the Board should stay submission of a Rule 4 file and other proceedings while it considers the Army's motion because "the issue of jurisdiction is dispositive" (gov't mot. at I). Two days after the Army filed its motion, on 18 August 2016, ECC sent an email to the Board and Army stating: I object the motion to dismiss, because I give you the POC of the JCCS they denied our base access without any reason, and we need justice, that is why I come to ASBCA because I had no other choice, thank you very much. The same day, the Board ordered that ECC shall have 30 days to respond to the Army's motion to dismiss and that the motion to stay other proceedings was granted pending a determination on the motion to dismiss. By order dated 27 September 2016, the Board advised ECC it had received ECC's brief response to the Army's motion dated 18 August 2016 and ifECC intends to provide a more detailed response to the Army's motion it may do so no later than 18 October 2016. ECC, however, submitted nothing further to the Board by 18 October 2016. 2  After the appeal was assigned to the docket of a judge, by order dated 4 November 2016, the Board notified ECC as follows: By Order dated 18 August 2016, the Board granted the government's request to stay proceedings. However, appellant had not yet filed a complaint and, under Board Rule 6(a), still had 15 days within which to do so. Board Rule 6(a) requires an appellant to file a complaint that sets forth simple, concise, and direct statements of each of its claims.