ASBCA 59448

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) HEB International Logistics ) ASBCA No. 59448 ) Under Contract No. W91B4N-09-D-5003 ) APPEARANCE FOR THE APPELLANT: Mr. Hasib Akbary CEO APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney Erica S. Beardsley, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE NEWSOM ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION Appellant appeals from a contracting officer's final decision denying two of its claims. The government moves to dismiss this appeal for lack of jurisdiction on the basis that appellant's claims were not certified as required by the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. Appellant opposes. For the reasons explained below, the Board grants the government's motion. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION On 15 March 2009, the United States Army Bagram Regional Contracting Center and HEB International Logistics (HEB) entered into Contract No. W91B4N-09-D-5003, a multiple award indefinite delivery, indefinite quantity contract for trucking services throughout Afghanistan (R4, tab 1 at 1, 4-5). The contract incorporated Federal Acquisition Regulation (FAR) 52.212-4, CONTRACT TERMS AND CONDITIONS - COMMERCIAL ITEMS (OCT 2008) (R4, tab 1 at 23). Paragraph (d), Disputes, of the Contract Terms and Conditions - Commercial Items clause in tum incorporated FAR 52.233-1. FAR 52.233-1, DISPUTES (JUL 2002), in effect at the time of contract execution, provided in pertinent part: ( d)(2)(i) The Contractor shall provide the certification specified in paragraph (d)(2)(iii) of this clause when submitting any claim exceeding $100,000.  (iii) The certification shall state as follows: "I certify that the claim is made in good faith; that the supporting data are accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the contract adjustment for which the Contractor believes the Government is liable; and that I am duly authorized to certify the claim on behalf of the contractor." 48 C.F.R. § 52.233-l(d)(2) (2009). By letter dated 9 May 2013, Kahiga A. Tiagha, Esq., on behalf of HEB, submitted a claim in the amount of $6,057,842 for the payment of four invoices to a contract specialist with the Army Contracting Command - Rock Island Reachback Closeout Division. By letter dated 1 July 2013, Mr. Tiagha submitted a second claim on behalf of HEB in the amount of$3,424,923.50 for the government's allegedly improper withholding of payments and/or assessment of penalties under the contract. Neither claim contained the certification prescribed by FAR 52.233-l(d)(2)(iii), nor any other form of certification. (R4, tabs 44, 45) HEB's 1July2014 claim letter, however, contained the following language upon which it relies: I am writing to provide evidence of the outstanding payment obligation of the [Army] to [HEB] in the amount of [$3,424,923.50] over the months of July, August and September of 2011. In conclusion, HEB contends that the foregoing combined with the attached Exhibits should provide incontrovertible evidence ofHEB's compliance with HNI [Host Nation Trucking] rules and the Army's incorrect application of the same. Accordingly, HEB once again asserts that it has a legitimate claim for [$3,424,923.50] for services provided to the Army under HNI. (R4, tab 45 at 1, 5) The contracting officer issued a final decision, dated 28 April 2014, denying both ofHEB's claims (R4, tab 48). HEB timely appealed the denial of its claims by email dated 27 July 2014. The Board docketed the appeal as ASBCA No.