ASBCA 59819

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Black Tiger Company ) ASBCA No. 59819 ) Under Contract No. W91GXE-l l-P-0083 ) APPEARANCE FOR THE APPELLANT: Mr. Kadhom Husein Faraj Owner APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ Elinor J. Kim, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE PAGE Black Tiger Company (appellant or Black Tiger) appeals from a deemed denial of its claim seeking $1,368,095 based upon an alleged contract with the United States CENTCOM Contracting Command (the government) to deliver heavy construction equipment to Tallil Air Base, Iraq. In a previous decision, Black Tiger Company, ASBCA No. 59189, 16-1 BCA ,-i 36,423, we denied the government's motion to dismiss this appeal for lack of jurisdiction, holding that triable issues remained regarding the existence of a contract, precluding dismissal. Id. at 177 ,570-71. The government requested submission of this appeal on the record, pursuant to Board Rule 11. The Board attempted to contact appellant to inquire as to its position regarding a Board Rule 11 decision, and whether it intended to file a brief. The 3 November 2016 scheduling order directed the parties that "Any filing not made in a timely manner may be deemed waived." It cautioned the parties that "Following the filing date for reply briefs," which was set as 27 July 2017, "the record in this appeal will be deemed closed and the appeal ready for decision without further notification from the Board." Appellant has not responded to the Board's orders, and we rule upon the record as of 27 July 2017. We decide entitlement only, and deny this appeal. FINDINGS OF FACT 1. This appeal arises from alleged Contract No. W91GXE-l l-P-0083 (alleged contract) between the government and appellant. The alleged contract has an effective date of 5 December 2010, although the signature date is listed as 7 December 2010. (R4, tab 1 at 1)  2. The alleged contract purportedly calls for the delivery of heavy construction equipment, consisting of two John Deere graders and three bulldozers, to Tallil Air Base, Iraq, on 29 December 2010 (R4, tab 1 at 3-4 ). 3. By email dated 3 February 2015, appellant submitted a certified claim for $1,368,095 to Ramena Gabriel, Contract Specialist, Reachback Closeout Division, U.S. Army Contracting Command, Rock Island, Illinois (ACC-RI), alleging that it had not been paid for performance of the contract (R4, tab 5 at 1, tab 7). 4. By email dated 5 February 2015, appellant filed a notice of appeal with the Board stemming from the 3 February 2015 certified claim for $1,368,095. The Board docketed the appeal as ASBCA No. 59819 on 6 February 2015. As noted in the Board's prior decision, although the notice of appeal was filed only 48 hours after appellant submitted a claim to the contracting officer (CO), the government was not requesting that appellant refile the notice of appeal to timely comply with the rules, as more than 60 days had elapsed since the date of claim submission. Black Tiger Company, 16-1 BCA, 36,423 at 177,570, SOF, 5. 5. As part of the notice of appeal, appellant submitted the following documents: (1) an alleged invoice for Iraqi Dinar (IQD) 1,532,266,400; (2) the first page of the alleged contract; (3) a certification for the claimed amount totaling $1,368,095; (4) email exchanges between appellant and Ms. Gabriel, beginning on 20 January 2016, in which she denied the existence of the contract; and (5) an email dated 3 February 2015 from "Meelondrell," sent from a Gmail email address (email address No. 1), that stated "It is unacceptable that you did not get paid for this contract." Appellant alleges that the last email was sent by a contracting officer's representative (COR) named "Meelondrell," "Meelondrell Park,'' "Meelondrell Park-Link," or "Meelondrell Park-Laink" (Notice of Appeal at 10-11; R4, tab 1 at blocks 14, 29, tab 3 at block 13, tab 7, tabs 9-10) 6. By declaration dated 10 March 2015, CO Thomas A. Petkunas asserted that he executed a "comprehensive search" of various government contract retrieval and archival systems for any records related to the alleged contract. No documents were found. (R4, tab 8 at 1) 7. By email dated 10 March 2015, CO Petkunas emailed the alleged COR "Meelondrell Park" at email address No. 1, requesting additional documentation for the alleged contract. CO Petkunas also requested that Ms.