ASBCA 59709

ARMED SERVICES BOARD OF CONTRACT APPEALS Petition of -- ) ) Tokyo Company ) ASBCA No. 59709-953 ) Under Contract No. W90U3Z-08-M-803 l ) APPEARANCE FOR THE PETITIONER: Mr. Beniamen Monadhil Owner/General Manager APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney CPT Melvin A. Lee, JA Trial Attorney ORDER PURSUANT TO BOARD RULE l(a)(5) DIRECTING CONTRACTING OFFICER TO ISSUE DECISION Pursuant to Board Rule l(a)(5), Tokyo Company petitions the Board to direct the contracting officer (CO) to issue a decision on its 12 May 2014 claim. In response, the government requests that it not be ordered to do so, asserting it already has issued a final decision. The government also argues petitioner lacks privity of contract and thus a new final decision is not warranted. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE PETITION 1. By email dated 27 November 2014, Tokyo Company filed the instant petition, stating the CO "does not send me his decision on this case," and listing several dates that petitioner's owner, Mr. Beniamen Monadhil, purportedly sent emails to named individuals at the Reachback Contracting Command at Rock Island, Illinois. Petitioner listed dates from 8 May 2014 to 11November2014, and indicated he received a response from only one inquiry, dated 14 May 2014. Petitioner's email request to the Board contained numerous attachments, including what appears to be a contract and modifications, a 15 February 2010 invoice for $920,602, and a signed claim certification dated 9 May 2014. 2. By Order dated 3 December 2014, the Board directed the government to show cause why an order directing the CO to issue a final decision should not be issued or indicate when a decision would be issued. 3. The government responded by letter dated 22 January 2015, requesting that it not be ordered to produce a new CO's final decision in this matter because a decision has already been issued by the CO on 11 September 2013 and attached a copy of the decision. Further, the government argued that [T]he government has serious doubts that a contract ever existed with the petitioner. A review of the government's contract retrieval and archival system shows that the subject contract was awarded, terminated, and closed out with an entirely separate company. There is no documentation within this system showing that the petitioner was awarded the subject contract or performed any work on the contract.... Since petitioner is not a contractor as defined by the CDA and lacks privity of contract with the government, a new contracting officer's final decision on this matter is not warranted. 4. By Order dated 27 January 2015, the Board informed the government that the final decision dated 11 September 2013 was the subject of ASBCA No. 59059, which was dismissed by the Board on 23 April 2014 for Tokyo Company's failure to properly sign or execute its claim certification in accordance with the requirement of FAR 33.207(e). Tokyo Company, ASBCA No. 59059, 14-1BCAif35,590. The Board pointed out that "[i]t appears from the current record that petitioner is seeking a final decision on a different claim than the one at issue in ASBCA No. 59059." 5. The Board further stated in the 27 January 2015 Order, it was unclear which documents attached to petitioner's 27 November 2014 email constituted the claim, whether the 9 May 2014 certification related to any particular claim, or if the certification or any claim was submitted to a CO. Petitioner was directed to provide: ( 1) a copy of the claim documents that it submitted to the CO, including any certification; (2) evidence that the claim and any certification were actually submitted to a CO; and (3) evidence of the date of claim submittal. 6. By email dated 28 January 2015, petitioner responded to the 27 January 2015 Order with the following: On 12 May 2014, Tokyo [C]ompany has submitted its claim as well as the signed Certification of Claims to the Contracting Officer, Andrea Kalb, Branch C Chief, Global Reachback Contracting Division, Army Contracting Command - Rock Island, CCRC-RC. She replied on 14 May 2014 stating that "I have received your request." Copies of these e-mails are attached with this letter.