ASBCA 60912

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) NileCo General Contracting LLC ) ASBCA No. 60912 ) Under Contract No. W912ER-12-C-0005 ) APPEARANCE FOR THE APPELLANT: Cynthia Malyszek, Esq. Malyszek & Malyszek Westlake Village, CA APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney Rebecca L. Bockmann, Esq. Pietro 0. Mistretta, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Middle East Winchester, VA OPINION BY ADMINISTRATIVE JUDGE MCNULTY ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION . NileCo General Contracting LLC (NileCo or appellant) submitted a document entitled "claim" to the contracting officer (CO) in the amount of $2,079,137.25 via email. The claim 1 included certification language mandated by the Contract Disputes Act, 41 U.S.C. §§ 7101-7109 (CDA), but no electronic or digital signature, only the typewritten name of the company's director. NileCo has appealed from a deemed denial. The government moves to dismiss for lack of jurisdiction due to the lack of signature following the certification language and because NileCo' s submission to the CO purportedly did not request a final decision. We grant the government's motion with respect to the signature issue and dismiss the appeal, without prejudice. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. Contract No. W912ER-12-C-0005 (the contract) was awarded to appellant on 19 December 2011, by the United States Army Corps of Engineers (USACE). Anwar Ahmed, Director, signed the contract, with a handwritten signature, on behalf of appellant. The contract, in the amount of$4,537,871.00, was for construction 1 We refer to this submission as NileCo's "claim" throughout this opinion, but the use of that term does not mean that we determine the document to constitute a valid claim as that term is used in the CDA. services for a dining facility and other structures at the Transit Center at Manas, Manas International Airport, Kyrgyzstan. (R4, tab 7 at 3, 188) 2. The government issued a Suspension of Work notice dated 28 January 2014, directing appellant to stop work, demobilize and quit the site by 31 January 2014 (R4, tab 67). The document was digitally signed by the CO (id. at 1). 3. In an email dated 27 July 2016 appellant submitted its claim to the CO seeking compensation for withheld payments. The claim included the following certification language: 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. The claim's email transmittal included only a typewritten name in the signature block, i.e., "Anwar Ahmed Director." (R4, tab 2) The claim itself included nothing further with respect to identifying who was certifying the claim on behalf of appellant. Appellant's transmittal also stated: Please find attached our claim for the withheld payments plus costs incurred and interest. It has been two and a half years since work stoppage and we have yet to receive our funds. Please review the claim and let us know when we will get paid. (Id. at 1) 4. In a letter apparently emailed to NileCo under the date of 23 September 2016, the CO acknowledged having received the claim via email, advised additional time was needed to prepare his final decision and stated: "The final decision will be issued by November 20, 2016." The document was digitally signed by the CO. (R4, tab 83) 5. Via email sent on 4 November 2016, including an attached letter also dated 4 November 2016, the government terminated the contract for convenience (R4, tab 87). The email referenced NileCo' s "claim" and invited the submission of additional information for the termination settlement proposal (id. at 1). This termination letter also was digitally signed by the CO (id. at 3). 2  6.