ASBCA 61004

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Western Trading Company ) ASBCA No. 61004 ) Under Contract No. W5KA4N-11-P-0126 ) APPEARANCE FOR THE APPELLANT: Mr. Amanullah Tanha General Director APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney CPT Jeremy D. Burkhart, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE OSTERHOUT ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION This is an appeal of a contracting officer's denial of a claim by Western Trading Company (Western Trading or appellant), alleging that it is owed $379,000.00 for delivery of vehicles to Camp Arena, Herat, Afghanistan, pursuant to Contract No. W5KA4N-11-P-0126 (the contract). The Herat Regional Contracting Office (government or Army) filed a motion to dismiss for lack of subject matter jurisdiction, arguing that the contract was terminated for cause on 19 March 2011 but Western Trading failed to appeal the termination decision within 90 days as required by the Contract Disputes Act (CDA) 41 U.S.C. §§ 7101-7109. Despite receiving correspondence on multiple occasions from the Board, Western Trading did not respond in any way to the government's challenge to our jurisdiction. We grant the motion. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On 5 February 2011, the Herat Regional Contracting Office executed Contract No. W5KA4N-11-P-0126 to Western Trading (R4, tab 1 at 1). The contract was issued in the amount of $290,000.00 for two armored 2011 Toyota Land Cruisers in new condition (id. at 4) and one armored 2011 Toyota Hilux Pick Up for $98,999.99 (id. at 5) for a total of $388,999.99. 2. The government required the vehicles by 28 February 2011 (R4, tab 1 at 5-6). 3. The contract incorporated by reference Federal Acquisition Regulation (FAR) 52.212-4, CONTRACT TERMS AND CONDITIONS-COMMERCIAL ITEMS (JUN 2010) (R4, tab 1 at 6). This clause states, in relevant part:  (d) Disputes. This contract is subject to the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613). Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1, Disputes, which is incorporated herein by reference. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract. (m) Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience. 4. FAR 52.233-1, DISPUTES, states in relevant part: (f) The Contracting Officer's decision shall be final unless the Contractor appeals or files a suit as provided in [the CDA]. 5. The contracting officer (CO) and the Western Trading representative, Mr. Amanullah Tanha, communicated via email (R4, tabs 2, 3, 9, 12). 6. When the CO sent the contract to Mr. Tanha, he documented via email, "As we discussed earlier, it is important you have the vehicles delivered by the 28th of February" (R4, tab 2 at 1). 7. Also on 5 February 2011, Mr. Tanha informed the government, via email, that he would be able to deliver the vehicles before 28 February 2011 but that he would need a letter from the U.S. Military to give to Afghan customs to clear the vehicles.