ASBCA 58585

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Mawaraa AlBihar Company ) ASBCA No. 58585 ) Under Contract No. W91GF5-07-M-6845 ) APPEARANCE FOR THE APPELLANT: Mr. Sisaban Obeidi Owner APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney LTC Peter H. Tran, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE SHACKLEFORD ON GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION This appeal involves a contract for generators in Iraq. The government has moved to dismiss the appeal for lack of jurisdiction. The motion is granted. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. The government awarded Contract No. W91GF5-07-M-6845 to "Qusay H. Jabir[,] Torok Baghdad Company" on 28 August 2007. Under the contract, Torok Baghdad Company (Torok) was to provide an estimated quantity of 40 generators of various types. The award amount was $632,200. (R4, tab 1 at 1-2) 2. On 4 September 2007, Mr. Jabir emailed the government stating that Torok could not supply the generators at the prices in the contract. Torok would require "at least $925,000.00." (R4, tab 2) 3. In apparent response to Mr. Jabir's email, the government issued, on 5 September 2007, Modification No. P00001 which canceled the order for generators. The modification stated that cancellation had been agreed to by both parties, that the government would not be liable for any costs associated with the contract, and that contract funds would be "re-obligated to a new contract." (R4, tab 3) 4. Appellant's submissions in this appeal include a copy of what appears to be Contract No. W91GF5-07-M-6845 awarded to Mawaraa AlBihar Company on 9 September 2007. This contract was for the same generators in the same quantities as listed in the contract with Torok, but the individual prices were somewhat different and the total price was $667,200. The contract appears to be signed by a government contracting officer, but not by a representative for appellant. (R4, tab 4; notice of appeal dtd. 13 March 2013, attach.; app. reply to gov't mot. to dismiss dtd. 14 May 2013, attach.) The government says that it has no record that appellant even bid on the solicitation that led to the award of Contract No. W91GF5-07-M-6845 or that it contracted with appellant under Contract No. W91GF5-07-M-6845 (gov't proposed finding 2). The government could not find, in its files, any record of a contract with appellant, any background information about appellant, any pre-award correspondence from appellant, or any quote from appellant (R4, tab 25). 5. The government awarded Contract No. W91GF5-07-M-6857 to MachineryGroup-KU on 13 September 2007. This contract was for the same generators in the same amounts as listed in the contract with Torok, but the individual prices were somewhat different. In addition, this contract added shipping prices. The total price was $657,940. (R4, tab 5 at 1-2) Modification No. P00001 increased the contract price by $29,720. (R4, tab 6). The government states that this contract was paid and closed out (R4, tab 25 at 2). 6. The original contract with Torok, the asserted contract with Mawaraa AlBihar, and the contract with Machinery Group-KU incorporated by reference FAR 52.212-4, CONTRACT TERMS AND CONDITIONS-COMMERCIAL ITEMS (FEB 2007) (R4, tab 1 at 3, tab 4 at 3, tab 5 at 3). Subsection (d) ofFAR 52.212-4, Disputes, stated that the contract was subject to the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. 1 7. On 18 September 2012, Sisaban Obeidi contacted the government saying that his company, Mawaraa AlBihar, won Contract No.W91GF5-07-M-6845 on 7 September 2007 and delivered the generators, but had not been paid. In a later email on 21 September 2012, he stated that the company had delivered the generators required under the contract over an eight-day period in October 2007; thereafter he left Iraq, returning in 2011 when he resumed attempting to obtain payment for the generators. There were three attachments to the email. (R4, tab 11) According to the contracting officer, the three attachments were: 1) a copy of the Mawaraa AlBihar contract on SF1449 which had Mr. Obeidi's name typed both in Box 17a for Contractor and in Box 30b as signer of the contract, although not signed; 2) an invoice for $667,200; and 3) a DD250 dated 18 October 2007 (R4, tabs 4, 7, 9, 21).