ASBCA 61234

.ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Hejran Hejrat Co. LTD ) ASBCA No. 61234 ) Under Contract No. W5J9JE- l l-C-O 115 ) APPEARANCE FOR THE APPELLANT: Joseph A. Hennessey, Esq. Chevy Chase, MD APPEARANCES FOR THE GOVERNMENT: Thomas J. Warren, Esq. Acting Engineer Chief Trial Attorney Pietro 0. Mistretta, Esq. Aimee L. Rider, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Middle East Winchester, VA OPINION BY ADMINISTRATIVE JUDGE KINNER ON THE GOVERNMENT'S MOTION TO DISMISS The Army Corps of Engineers (the Corps) moves to dismiss the appeal of Hejran Hejrat Co. LTD (HHL) for its failure to comply with the requirements for our jurisdiction pursuant to the Contract Disputes Act (CDA) 41 U.S.C. § 7103(b)(l). STATEMENT OF FACTS FOR PURPOSES OF THE MOTION After several rounds of price negotiations, the Corps awarded HHL a contract for lease of armored utility vehicles for use in Afghanistan (comp I. ,r,r 17-20; R4, tab 10). Corps personnel scheduled meetings to prepare for implementation of the contract (compl. ,r,r 25-26, 28). Prior to the second scheduled meeting, HHL was directed by the contracting officer to suspend all work because the contract was suspended, apparently due to a bid protest (compl. ,r,r 33, 35; R4, tab 30). The Corps took corrective action in response to the protest, which included obtaining resubmission of proposals without re-solicitation ( compl. ,r 40). On 8 August 2011, HHL was again awarded the contract, although the original award had only been suspended (compl. ,r 50; R4, tab 32). HHL informed the contracting officer that it incurred additional costs due to the time necessary for the corrective action, the reduction of the contract price, and a delay in the issuance of the notice to proceed ( comp I. ,r 54 ). There is no evidence whether the Corps considered HHL's concerns regarding additional costs. Instead, Modification No. POOOOl was issued 14 August 2011 (compl. ,r 53; R4, tab 11). The unilateral modification lifted the prior award suspension; decreased the contract price from $9,364,707 to $8,787,800; revised the performance work statement to reflect delays in government furnished equipment; declared that an equitable adjustment due to the suspension was not required and that the Corps was absolved of any claims due to that suspension (id.). Before the end of the performance period, in July 2012, HHL was informed the Corps would not exercise an option on the contract ( comp I. 1 68; R4, tab 50). When asked for a final invoice and a release of claims to close out the contract, HHL informed the Corps that it was due additional payments and some vehicles were missing (compl. 174). HHL's requests for additional payment were made by submitting invoices (compl. 1174, 77; app. supp. R4, tab 79 at 451; R4, tabs 78-80). The invoices requested $4,137,964 of additional compensation (compl. 1177, 82). On 12 September 2013, a contracting officer, Sara Jackets, responded to HHL's three mv01ces: This letter is in response to your three (3) invoices HHL-USACE/015, HHL-USACE/016 and HHL-USACE/016 submitted for contract W5J9JE-l 1-C-0I l5 on 22 August 2013. Although you used the word 'claim' and 'compensation' in your email and invoices, I have treated this as a request for equitable adjustment (REA) because it is not clear that you were seeking a contracting officer's final decision. (R4, tab 59) Ms. Jackets asked HHL to inform her if the company intended to submit a claim or sought a contracting officer's final decision (id.). In a 31 January 2014 email, HHL specifically informed the Corps that it had not intended the email submitting its three invoices to be considered an REA (R4, tab 64 at 8-9). With respect to the 31 January 2014 email, however, HHL explained the purpose of that email: "We therefore ask you to treat this email together with the supporting documents as a REA. In the event that you decide to treat this email as REA and still reject our request for the adjustment of payments, we would then proceed with issuing a certified claim." (Id.) The email contained descriptions of the grounds for additional payment: "1.