ASBCA 61007

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Anis Avasta Construction Company ) ASBCA No. 61107 ) Under Contract No. H92237-11-C-0343 ) APPEARANCE FOR THE APPELLANT: Mr. Shujah Mowafaq CEO APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq. Air Force Deputy Chief Trial Attorney Phillip E. Reiman, Esq. Lt Col Nathaniel H. Sears, USAF Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE SWEET Prose appellant Anis Avasta Construction Company (Anis Avasta) brings this appeal, alleging that the United States Air Force (government) breached a contract by failing to pay Anis Avasta for the construction of a water supply and storage facility at Pusht-e Bagh, Afghanistan. Pursuant to Board Rule 11, the parties have elected to waive a hearing and to submit the appeal on the record before the Board. The government argues that Anis Avasta has failed to meet its burden of showing that there was a contract, or that it performed under the contract. Anis A vasta responds that there was a contract and it performed. As discussed below, we need not decide whether there was a contract because, even assuming that there was a contract Anis Avasta has failed to demonstrate that it performed any work under the alleged contract, and, because it waited over five years to pursue payment without any contact with the government, Anis Avasta's claim is barred by the doctrine oflaches. Therefore, the appeal is denied. FINDINGS OF FACT 1. On 29 September 2011, Shujah Mowafaq-Anis Avasta's Director (R4, tab 4 at 1)-sent an email to Logistics Specialist Chief (LSC) Jose B. Diaz-the contracting officer representative (COR) for the Combined Joint Special Operations Task Force-Afghanistan (R4, tabs 4, 15, 12). 2. Attached to the 29 September 2011 email was a Standard Form (SF) 1442 (Solicitation, Offer, and Award) for Contract No. H92237-11-C-0343 (SF 1442) (R4, tabs 1, 4 at 1). Under the SF 1442, Anis Avasta would construct a water supply and storage facility in exchange for $53,000 (R4, tab 1 at 3). 3. The SF 1442 stated that "[u]pon completion of the work and prior to final payment, the contractor shall be required to furnish the Contracting Officer a Release of Claims (Attachment 1) per FAR 52.232-5, Payments Under Fixed-Price Construction Contracts" (R4, tab 1 at 6). Similarly, the SF 1442 incorporated by reference the clause at FAR 52.232-5 (id. at 14). FAR 52.232-5(h) provided that the government shall pay the amount due the contractor under the contract after the completion and acceptance of all work, and the presentation of a voucher and a release. 4. Mr. Mowafaq signed the SF 1442 on behalf of Anis Avasta. Captain (now Major) David W. Knox's name was typewritten under the box "Name of Contracting Officer," but Maj Knox did not sign the SF 1442 (R4, tab 1 at 2). Both Maj Knox and LSC Diaz declare that they have neither records regarding the SF 1442, nor any recollection that Maj Knox awarded Contract No. H92237-11-C-0343 to Anis Avasta. (R4, tab 15,, 5, tab 16,, 6) 5. On 2 October, 2011, Mr. Mowafaq emailed LSC Diaz, stating "Still I did not received [sic] the signed page from you. Please let me know back." (R4, tab 4 at 2) 6. LSC Diaz responded by sending Mr. Mowafaq via email a 2 October 2011 notice to proceed (NTP). The NTP stated that "[y]ou are hereby notified to proceed with the performance required by the terms of the subject contract, on 07 October 2011." The NTP contained Maj Knox's typewritten name, but not his signature. (R4, tab 6) 7. On 8 October 2011, Anis Avasta received an email from personnel at Pusht-e Bagh seeking to arrange the construction. After several emails, Anis A vasta stated on 13 October 2011 that its supervisor would be at Pusht-e Bagh to survey the site on 14 October 2011, after which Anis A vasta would send a work team to finish the coritract. (R4, tab 7) 8. However, there is no evidence in the record that Anis Avasta performed the work. Neither Maj Knox nor LSC Diaz remember Anis A vasta completing-or the government accepting-the work (R4, tab 15,, 5, tab 16,, 6). Nor is there a declaration from Mr. Mowafaq that Anis Avasta completed the work. More importantly, there is no contemporaneous evidence that Anis Avasta completed-or the government accepted-the work. There are no communications between Anis A vasta and the government-or any other documents-between October 2011 and February 2017 in the record.