ASBCA 59817

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Suzan Company ) ASBCA No. 59817 ) Under Contract No. W91GF5-l1-M-0043 ) APPEARANCE FOR THE APPELLANT: Ms. Khadija Saeed Owner/Manager APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney CPT Jessica E. Edgell, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE D' ALESSANDRIS ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION Appellant Suzan Company (Suzan) seeks payment pursuant to a purported contract with the United States Department of the Army (Army) for six trash trucks at $101,000 each, for a total of $606,000. The Army disputes the existence of the contract and moves to dismiss for lack of jurisdiction, or in the alternative for summary judgment. For the reasons set forth below, we grant the Army's motion to dismiss. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On 14 January 2011 1 the Army awarded Contract No. W91GF5-11-M-0043 (contract), in the amount of $606,000, to Suzan for six "New (2009) 4x2 Trash Truck, (8-1 Om), Japanese origin" to be delivered to Forward Operating Base Warhorse 2 (compl. ii 5, attach. 1). 3 2. Suzan subsequently delivered the trash trucks, and submitted invoice 45 on 29 January 2011 (compl. iii! 6-7). Mark Johnson issued and signed a form DD250 receiving report to confirm acceptance of the trucks (compl. ii 8, attach. 2). The invoice was submitted to the Defense Finance Accounting Services (DF AS) for payment the following day (compl. ii 9). 1 The complaint provides a date of 14 June 2011; however, the attached copy of the purported contract is dated 14 January 2011. 2 The allegations contained in the complaint are assumed to be true for the purpose of this decision. The Army disputes the existence of the cited contract. 3 The attachments to the complaint were numbered consecutively by the Board for reference purposes.  3. Suzan communicated with the Army and DFAS several times in February 2011 but did not receive payment because the electronic funds transfer information did not match the company name and the manager's name. After February 2011, Suzan did not receive any responses from the Army. (Compl. iii! 10-16) 4. On 23 December 2014, Suzan contacted the Army Contracting Command's Reachback Closeouts Division, at Rock Island, Illinois seeking payment of its January 2011 invoice. The following day the Army responded that it could not make payment because the company name does not match the name on the bank account submitted for payment. (Compl. iii! 17-18, attach. 7) 5. Suzan attempted other communications with the Army and then on 12 January 2015 Suzan emailed President Obama, the contracting officer, and many other Defense Department employees again seeking payment (compl. iii! 19-20, attach. 4). 6. On 24 January 2015, Suzan received the 22 January 2015 contracting officer's final decision denying its 12 January 2015 claim (comp I. ii 21, attach. 6). The final decision states that the Army has no record of the contract number (comp I. attach. 9). 7. On 4 February, 2015, Suzan appealed from the contracting officer's final decision to the Board. 8. On 5 February 2015, Suzan served its complaint in this appeal. In an attachment to the complaint, following the email addressed to President Obama, Suzan included a certification of its claim. The claim certification is dated 14 January 2015, but does not indicate that it was sent to the contracting officer, or if sent, how it was sent. There is no indication that the claim certification was an attachment to the email to President Obama, and the contracting officer. Based upon the 14 January 2015 date of the claim certification, it could not have been an attachment to the 12 January 2015 email to President Obama and the contracting officer. (Compl. attach. 5) 9. In a declaration dated 24 June 2015, Andrea Kalb, the contracting officer for Suzan's claim, and the Chief of the Reachback-Closeout Branch, stated that she did not receive a certification of the claim prior to issuing the contracting officer's final decision (Kalb Deel. ii 3 ). DECISION The Army moves to dismiss this appeal, arguing that the Board lacks jurisdiction first because Suzan's submission constituted a routine request for payment, rather than a claim.