ASBCA 59156

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Al Rafideen Company ) ASBCA No. 59156 ) Under Contract No. W91GDW-10-D-2000 ) APPEARANCE FOR THE APPELLANT: Mr. Ahmed Maithem Jassim Owner APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney CPT Lyn P. Juarez, JA Trial Attorney OPINION BY JUDGE NEWSOM ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION Appellant appeals from a contracting officer's final decision denying its demand for payment. The government moves to dismiss this appeal for lack of jurisdiction on the basis that appellant's demand was not a claim, because it was neither signed nor certified as required by the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. Appellant did not submit an opposition to the government's motion. For the reasons explained below, the Board grants the government's motion and dismisses the appeal without prejudice for lack of jurisdiction. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION On 23 March 2010, the Joint Contracting Command-Iraq/Afghanistan awarded Contract No. W91GDW-10-D-2000 to Al Rafideen Company for the procurement of sand and related materials (R4, tab 1). The contract included Federal Acquisition Regulation (FAR) clause 52.212-4, CONTRACT TERMS AND CONDITIONS - COMMERCIAL ITEMS (MAR 2009) (R4, tab 1at48), subparagraph d of which stated that the contract was subject to the CDA and incorporated FAR 52.233-1, DISPUTES. On 28 July 2011, the contracting officer (CO) issued delivery order (DO) 0013 under the contract for 12,617 cubic meters of sand for $214,489 (R4, tab 5). In September 2011, the CO notified appellant that it had no further need for sand under DO 0013, and subsequently issued two bilateral modifications reducing the delivery order quantities and related funding such that the total funding remaining after the second modification was $69,956.51 (R4, tabs 8, 11, 15). The government asserts that it made final payment to appellant in that amount on 21 February 2012 (R4, tab 16; gov't br. at 1). On 23 September 2013, appellant contacted the CO seeking compensation for expenditures allegedly incurred on the contract in 2011 (R4, tab 18). After several exchanges, appellant submitted a document entitled "Claim, Explanation, Invoices" dated 7 October 2013 (R4, tabs 33, 34). The document lacked a signature, certification, or stated total amount (R4, tab 34 ). The CO was able to calculate the amount demanded to be $146,000 and notified appellant that "[ s]ince the claim is for over $100,000 it will have to be certified." She attached FAR provisions showing the required certification language. (R4, tab 35) In response, appellant initially told the CO to "decrease" the amount claimed to $98,000, but she again asked for a certification and again provided appellant the required certification language (R4, tabs 36, 37). Appellant resubmitted its "Claim, Explanation, Invoices" document, now dated 10 October 2013. This version included a demand for $117,604.64 and stated: "First of all: I certify that the claim is made in good faith." No additional certifying language, nor a signature, were included. (R4, tab 38) On 20 December 2013, the CO issued a final decision denying appellant's purported claim (R4, tab 58). The contractor found errors in that decision (R4, tabs 59-60) and thus the CO issued a corrected final decision on 30 December 2013 (R4, tab 61). On 11February2014, appellant submitted this appeal to the Board. By letter dated 20 August 2014, the Board sua sponte advised appellant that the "purported claim" in the record "d[id] not appear to contain a signature executing the certification," nor did it contain all elements required in a certification, referring appellant to several Board precedents. The Board directed appellant to demonstrate that it submitted a certified claim to the contracting officer and provide a copy of that claim to the Board. Appellant responded on 27 August 2014 by stating that it had already provided the certified claim to the contracting officer. By letter dated 2 September 2014, the Board again directed appellant to provide a copy of the claim and certification. Appellant responded by email that same day asking for clarification on the missing certification assertions.