ASBCA 314

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Safaa Al-Rawaby Company ) ASBCA No. 63146 ) Under Contract No. H92277-21-C-0013 ) APPEARANCE FOR THE APPELLANT: Bayrak Abbas Fadel General Manager APPEARANCES FOR THE GOVERNMENT: Caryl A. Potter, III, Esq. Air Force Deputy Chief Trial Attorney Maj James B. Leighton, USAF Trial Attorney OPINION BY ADMINISTRATIVE JUDGE MCLISH In this appeal, Appellant, Safaa al-Rawaby Company (Safaa) seeks relief under the above-captioned contract (Contract), issued by U.S. Special Operations Command Central Forward Headquarters (SOCCENT FWD HQ). The Contract required Safaa to provide and deliver millable wheat grain to a mill in Syria for use by the Syrian Defense Forces, for a firm-fixed price of $1,689,589.20. The Contract required four monthly deliveries. The Contract was terminated for default on the ground that Safaa failed to make the first required delivery. Appellant claims “Compensation for losses” in the amount of $212,313 it allegedly incurred due to its “non-purchase of wheat” under a “prior agreement” with “the Al-Ubaidi Agricultural Office” (compl. ¶ 1-2). Appellant alleges that the non-purchase occurred because the quote from Appellant’s “suppliers went up to $6,944,000 which is a 400% increase” and that it was “the reason the first quantity was detained for more than a month” (id. at 1). Appellant also requests a “contract modification” and “price[] increase” to enable it to “buy wheat as per global market prices” and to “[r]eview prices . . . [s]o if our contract [is increased] up to $6,944,000 which is a 400% increase, we will be successful in delivery” (id. at 1-2). Respondent filed a motion for summary judgment on August 10, 2022. Appellant did not file an opposition. On January 10, 2023, the Board issued an order to show cause, requiring appellant to file either a response to the motion for summary judgment or a request for a further extension of time to file a response. The order informed appellant that the appeal may be dismissed without further notice if appellant did not make one of those filings within 30 days. In an email to the Board on January 27, 2023, appellant indicated that it had lost money on the contract and therefore could not afford counsel to prepare a response to the government’s motion. Appellant stated that it “was waiting for any compensation for this issue.” (Bd. corr. email dtd. Jan. 27, 2023) 1 We grant the government’s motion for summary judgment. 2 STATEMENT OF FACTS FOR PURPOSES OF THE MOTION The following facts asserted by the government in accordance with Board Rule 7(c) have not been disputed by appellant and are therefore accepted as undisputed for purposes of deciding the present motion. See Board Rule 7(c)(2). 1. Effective September 30, 2021, SOCCENT FWD HQ awarded the Contract to Safaa requiring the delivery of 7,827,600 kg of millable wheat over a period of four months (1,956,900 kg per month) to one specified location in Syria at a price of $424,647.30 per month (net price of $1,698,589.20). The initial delivery was due between October 19 and 28, 2021. The Contract was a firm-fixed price contract for a commercial item and incorporated Federal Acquisition Regulation (FAR) clause 52.212-4, Contract Terms and Conditions – Commercial Products and Commercial Services, by reference. (R4, tab 2 at 1, 4, 10, 13) 2. Safaa produced a document purporting to be an invoice dated October 28, 2021, from Al-Ubaidi Agricultural Office for “$212,323 Dollar” for “Fines for not buying wheat” addressed to Mr. Bayrak Abbas Fadel (R4, tab 7). 3. Safaa admits in its complaint that “the first [delivery] quantity was detained for more than a month” and that all its “means and solutions . . . in order to avoid losses and to supply the contract . . . [were] rejected and [Safaa was] notified to Stop Work.” (compl. ¶ 1). 4. On November 2, 2021, the contracting officer issued a memorandum labeled a “Cure Notice” via email “for lack of performance” on the Contract. The attached notice stated that Safaa was notified verbally and via email on October 16, 2021, of the 1 Although Appellant did not file a formal response to the summary judgment motion, we take its recent communications to indicate a desire to continue the appeal. (Bd. corr. emails dtd. Jan. 27, 2023, Feb. 13, 2023, and Feb. 26, 2023).