ASBCA 59065

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Zomord Company ) ASBCA No. 59065 ) Under Contract No. H92236-07-P-4330 ) APPEARANCES FOR THE APPELLANT: Mr. Casier Fahmee President Mr. Hussien Fuad Albaldaoei Manager APPEARANCES FOR THE GOVERNMENT: Col Robert J. Preston II, USAF Acting Air Force Chief Trial Attorney Capt Eric J. Singley, USAF Sarah L. Stanton, Esq. Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE JAMES ON GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION This appeal arises from the contracting officer's (CO's) 22 March 2013 decision that denied the 5 February 2013 claim of Zomord Company (Zomord) for payment of the $150,144 contract price for 1,088 cubic meters of%-inch gravel. On 29 January 2014, the government moved to dismiss this appeal for lack of Contract Disputes Act (CDA) jurisdiction on the grounds that Zomord did not file its claim within six years after such claim accrued, and did not submit an appeal within 90 days after receipt of the CO's foregoing decision. Zomord responded to the motion on 19 February 2014. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. Effective 3 January 2007, CO Cori J. Duford of the "OCF-1 CONTRACTING OFFICE," Balad, Iraq, awarded to Zomord commercial item Contract No. H92236-07-P-4330 (the contract) for 725 cubic meters (CM3) of%-inch gravel for the price of $100,050.00, to be delivered 23 days after the date of contract award, i.e., by 26 January 2007, at Shark Base, Ar Ramadi, Iraq. The contract included, inter alia, the FAR 52.212-4, CONTRACT TERMS AND CONDITIONS-COMMERCIAL ITEMS (SEP 2005) clause. (Gov't mot., attach. 1 at 1, 4of13, attach. 4 at 1) 2. By contract Modification No. POOOl, effective 5 January 2007, the parties bilaterally modified the contract to increase the gravel quantity by 363 CM 3 to 1,088 CM3 and to increase the contract price from $100,050.00 to $150,144.00, with no change in the delivery date (gov't mot., attach. 3). 3. Zomord submitted documents into evidence stating that under the contract it delivered 440 CM 3 of gravel on 9 January 2007, 400 CM3 of gravel on 13 January 2007 and 248 CM3 of gravel on 18 January 2007 (totaling 1,088 CM3) and on 19 January 2007 it submitted a DD Form 250 invoice for $150,144.00 to OCF-1, which "Tony Bennett" of "Shark Base, Ar Ramadi, Iraq" signed for acceptance on 20 January 2007 (app. resp.~ 3, attachs. 1-2). 4. CO Duford asserts that on 21 January 2007 she sent contract Modification No. P0002 (Mod. 2) to email address zomordco@yahoo.com (gov't mot., attach 4 (Duford decl.) at~ 4). The record contains no evidence that Zomord received Mod. 2 on or about 21 January 2007, or prior to respondent's 29 January 2014 motion. 1 5. Mod. 2 is a Standard Form 30, whose block 13D stated that the authority for the modification was "FAR Part 12.403(d), FAR [P]art 13.302-4, FAR Clause 52.212-4(1) (m)." Block 13E stated: "IMPORTANT: Contractor ... is required to sign this document and return 1 copies to the issuing office" and block 14 stated: 1. This contract is cancelled in its entirety due to contractor failure to meet the delivery and pricing terms of the contract. This is a Termination for Cause, as a No Cost settlement, in accordance with FAR 12.403(c). 2. No services or delivers [sic] were provided under this contract. Block 26 of the SF 1449 is therefore decreased ... from $150,144.00 to $0. No payments will be made. The Contractor is not entitled to any payments, and the Government will not seek any payments from the Contractor. 3. This is a final decision; you have the right to appeal under the Disputes clause. Zomord did not sign Mod. 2. (Gov't mot., attach. 2 at 1) As in effect on 3 January 2007, FAR 12.403(d) was entitled "Termination/or the Government's convenience." 1 FAR 33.211, referenced by FAR 12.403(c)(3)(iv) for terminations of commercial item contracts, provided: "(b) The [CO] shall furnish a copy of the decision to the contractor by certified mail, return receipt requested, or by any other method that provides evidence of receipt.