ASBCA 58801

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Taj AI Rajaa Company ) ASBCA No. 58801 ) Under Contract No. W91GFC-06-M-0169 ) APPEARANCE FOR THE APPELLANT: Mr. Baha'a Lafta Hassan Owner APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney CPT Tyler L. Davidson, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE JAMES ON GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION On 28 July 2013, Taj AI Rajaa Company (appellant) took an appeal to the ASBCA under the alleged captioned contract. On 17 October 2013, the government moved to dismiss the appeal for lack of subject matter jurisdiction. Movant's grounds are that appellant has never submitted a CDA claim to the contracting officer (CO), and the CO has never made a final decision regarding this matter, or, if appellant submitted a claim to the CO, it was untimely because not within six years of its accrual. Appellant opposed the motion on 9 November 2013, and on 3 December 2013 the government advised that it did not intend to reply to the opposition. STATEMENT OF FACTS (SOF) FOR THE PURPOSES OF THE MOTION 1. On 19 February 2013, appellant provided to the Army Contracting Command-Rock Island (ACC-RI) a copy of a document identified as Contract No. W91GFC-06-M-0169 (the contract) (R4, tabs 1, 2), whose Standard Form 1449, Solicitation/Contract/Order for Commercial Items, Block 9, stated that it was issued by "MNF-I/Regional Contracting Center (AI Taji)." Block 17a., Vendor, stated "Jalal Company" (Jalal) and "Email: alrajaacompany@yahoo.com," but no other address. I Blocks 19-24 specified item 000 1 for "( 1) Kaia, model 2002 14 pax passenger van lease" for 12 months at $2,516.00 unit price and a $30,192.00 amount. Blocks 30a., b., and c. show a signature of a person for "Contractor Jalal'' and "5-May-2006"; Block 31a. had no CO's signature or date. CLIN 0001 's period of performance was "08 May 06 -08 May 07." (R4, tab 1 at 1-2) I Later correspondence indicates that appellant is located in Baghdad, Iraq.  2. The document incorporated by reference the FAR 52.212-4, CONTRACT TERMS AND CONDITIONS-COMMERCIAL ITEMS (SEP 2005) clause (R4, tab 1 at 5), which included the following pertinent paragraphs: (d) Disputes. This contract is subject to the Contract Disputes Act of 1978, as amended .... Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1, Disputes, which is incorporated herein by reference .... (1) Termination for the Government's convenience. The government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder .... Subject to the terms of this contact, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination .... 3. The FAR 52.233-1, DISPUTES (JUL 2002) clause referenced in the document provided, inter alia: "(d)( 1) A claim by the Contractor shall be made in writing and, unless otherwise stated in this contract, submitted within 6 years after accrual of the claim to the Contracting Officer for a written decision." 4. Jalal's 18 February 2013 email to ACC-RI, "Subject: W91GFC_06_M_0169," stated: "I need your assistance, please ch[ e]ck this contract too and let me know" and was signed by "The manager: Baha'a Lafta." The 19 February 2013 email to Jalal from ACC-RI's CO Joan F.S. Wysoske, Chief, Reachback Closeouts, said: "Sir, we do not have this contract in our inventory. I cannot help you." (R4, tab 3) 5. Jalal's 27 February 2013 email to Ms. Wysoske stated: "I have no other way to go through and ask any help only your side . please search for it . then please advise me what I can do in such issue." (R4, tab 4, punctuation in original) 2  6.