ASBCA 59059

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Tokyo Company ) ASBCA No. 59059 ) Under Contract No. W90U3Z-08-M-8031 ) APPEARANCE FOR THE APPELLANT: Mr. Beniamen Monadhil Owner/General Manager APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney Stephanie B. Magnell, Esq. MAJ Lawrence Gilbert, JA Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE TING ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION Tokyo Company submitted a $920,602 claim with a certification without a physical signature and bearing only the company's stamp and the typed written name of its general manager. The contracting officer (CO) denied the claim and Tokyo Company appealed. The Board, sua sponte, sought the parties' views on what effect the lack of a physically signed claim certification has on the Board's jurisdiction over the appeal. In response, the government moves to dismiss for lack of jurisdiction. Tokyo Company maintains that we have jurisdiction. We grant the government's motion and dismiss this appeal for lack of jurisdiction. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 1. On 26 September 2008, Joint Contracting Command Iraq/Bucca, Regional Contracting Center-Bucca, awarded Contract No. W90U3Z-08-M-8031 (Contract 8031) to Khairat Alshemal Company (Khairat Alshemal). Samem Mohammed signed the contract for Khairat Alshemal. (R4, tab 1) The contract, in the amount of $1,432,810.00, was for the delivery and placement ofT-Walls, SCUD bunkers and Texas Barriers for personal protection from direct and indirect fire and blast mitigation to Camp Bucca, Iraq (id. at 1, 19). 2. On 2 March 2009, the CO issued a cure notice to Khairat Alshemal citing the need to improve the quality of the T-Walls. When Khairat Alshemal's next delivery was unacceptable, the CO issued a show cause notice on 16 March 2009. (R4, tab 6)  3. On 19 April 2009, the CO issued Modification No. POOOOl to change the contract issuing office from RCC Bucca Contracting, JCC-1/A Camp Bucca, Iraq, to MNSTCI Support Division, GRD-JCCI/A. Khairat Alshemal was identified as the contractor; and Mr. Samem Mohammed was identified as the "POC" or point of contact. (R4, tab 2) 4. The CO partially terminated Khairat Alshemal's contract for all remaining undelivered items for cause on 28 May 2009. The Notice of Termination for Cause told Khairat Alshemal that it could appeal the decision to the agency board of contract appeals or bring an action in the United States Court of Federal Claims. (R4, tab 6) 5. On 20 October 2009, the CO issued Modification No. P00002 to Khairat Alshemal confirming the partial termination for cause and paying Khairat Alshemal $85,172.00 for the 188 T-Walls out of the 3,067 deliverables the government accepted under the contract. The modification also de-obligated the unpaid contract balance of $1,347,638.00. It included language that Khairat Alshemal had the right to appeal the CO's decision or to file suit in the Court of Federal Claims. (R4, tab 3) 6. On 16 December 2009, Samem Mohammed, as General Manager ofKhairat Alshemal submitted Invoice No. 25 in the amount of$85,172.00 for the 188 T-Walls the government accepted (R4, tab 7). On 7 January 2010, the government made final payment under the contract to Khairat Alshemal in the amount of $85,726.46 on Voucher No. 194080 1 (R4, tab 8). 7. After the Army demobilized from Iraq at the end of 2011, responsibility for the Army's Iraq contracts was transferred to Rock Island Arsenal, Illinois (answer, part II, if 61). According to Joan F. Wysoske (CO Wysoske), the CO at the Army Contracting Command, Tokyo Company submitted Invoice No. 13 dated 15 February 2010 under Contract 8031 for payment. The invoice was for $920,602, and bore the stamp of "TOKYO COMPANY For general contracting & services Baghdad-Iraq Build 23 St Al-Karadaa" above the typed words "General Manager of Company BENJAMEN MONADHIL." (R4, tabs 11, 19) On a separate sheet, an undated Contract Disputes Act certification "Per FAR 33.207(C)" was submitted. Like the claim, the claim certification also bore the stamp "TOKYO COMPANY For general contracting & services Baghdad-Iraq Build 23 St Al-Karadaa" above the typed words "General Manager of Company BENJAMEN MONADHIL." (R4, tab 20) 8. According to CO Wysoske, when Tokyo Company submitted Invoice No. 13, it also submitted (1) Modification No.