ASBCA 61198

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Tawhid Afzali Construction Company ) ASBCA No. 61198 ) Under Contract No. H92237-13-C-5002 ) APPEARANCE FOR THE APPELLANT: Mr. Mohammad Nazir General Director APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq. Air Force Deputy Chief Trial Attorney Lt Col Nathaniel H. Sears, USAF Phillip E. Reiman, Esq. Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE PAUL Appellant Tawhid Afzali Construction Company (TACC) filed a purported claim, without stating an amount claimed, to the contracting officer (CO) with respect to a construction contract which was awarded to another entity in Afghanistan. The CO denied the "claim" on the basis that it did not appear that TACC was awarded the contract and, accordingly, "is owed no money under the contract." The Air Force subsequently filed a motion to dismiss for lack of jurisdiction, contending that "nowhere does [TACC] state the amount of its claim" (gov't mot. at 1 of2). STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On 31 October 2012, GySgt Shane Oltman, CO USMC, awarded Contract No. H92237-13-C-5002, on behalf of the Combined Joint Special Operations Task Force -Afghanistan (CJSOTF-A) to Najibullah Rahmal (NR) in a total amount of $94,240 (R4, tabs 1-3). The contract's "STATEMENT OF WORK" stated: "1.1 SCOPE OF WORK. The contractor shall provide all personnel and supervision necessary to perform general labor services for the staging base at Fob [Forward Operating Base] Robinson, Helmand, Afghanistan." (R4, tab 21 at 1) 2. The performance period for contract line item numbers (CLINs) 0001-0009 was 5 November 2012 through 4 November 2013; for CLINs 1001-1009 was 5 November 2013 through 4 November 2014 (R4, tab 3 at 6of16). 3. On 18 July 2015, a Mr. Muhmmad Nazeer, styling himself as General Director of TACC, forwarded an email to Capt Brandon A. Sandoval, an Air Force CO in which he referenced Contract No. H92237-13-C-5002 and stated, "[a]ny one down in Bagram [AFB], [c]ould you please help us out with our payment? It has been years and we haven't get [sic] paid? What's going on? Thanks." (R4, tab 4) 4. On 20 July 2015, Mr. Nazeer sent another email to the CO in which he wrote: We'd a project back in 2012, with signed contract from Bagram Air Field, Camp Robinson in Fahrah province, which is extremely unsafe and dangerous. We've hired and contracted the personnel [required] for this project, rented the house for them near the base, but the COR has told them to wait for some time and we haven't heard back since then. Please see attached signed contract. (R4, tab 5 at 1 of 33) Mr. Nazeer enclosed a purported copy ofH92237-13-C-5002 which he allegedly signed and which was dated 30 October 2012. The instrument stated a face amount of $72,400. (R4, tab 5 at 3 of 33) 5. The information on the face of the purported contract flatly contradicted the "Award Determination" executed by the original CO, GySgt Shane Oltman, on 29 October 2012. There, the CO stated, "[i]t is determined that Najibullah Rahmal in the amount of $94,240.00 is most advantageous to the Government." On this basis, the CO awarded Contract No. H92237-13-C-5002 to Najibullah Rahmal. (R4, tab 1) 6. Capt Sandoval responded to TACC's "claim" as follows: "You need to send the specifics regarding your claim. What invoices have you not been paid for? You will also need to supply all supporting documentation regarding the payment or lack thereof. If you have any questions, please address them to me." In addition to the purported contract, TACC provided to Capt Sandoval what appears to be a quotation in a total amount of $72,400. (R4, tab 5 at 1 of 33) 7. On 23 July 2015, TACC forwarded to Capt Sandoval an email allegedly from GySgt Oltman to T ACC which stated: Tawhid Afzali Construction, Good evening. Please review the attached contract and sign page 1. Return a signed copy to this email address as soon as possible. Contract services are to begin 2  on 5 November 2012. Please coordinate with lstSgt Jazak (COR) that is Cc'ed on this email. Thanks. (R4, tab 6 at 1) 8.