CBCA 6704

DISMISSED FOR LACK OF JURISDICTION: June 16, 2020 CBCA 6704 MAHAVIR OVERSEAS, Appellant,1 v. AGENCY FOR INTERNATIONAL DEVELOPMENT, Respondent. Avinash Jain, Owner of Mahavir Overseas, New Delhi, India; and Vivek Aggarwal of A&A Lawcorp LLP, New Delhi, India, appearing for Appellant. John B. Alumbaugh, Office of the General Counsel, Agency for International Development, Washington, DC, counsel for Respondent. 1 When preparing this decision, the Board discovered that the individual who the appellant identified as its counsel, Vivek Aggarwal, never provided the Board with a bar number for a state in which he is licensed to practice law, as required by Board Rule 5(b), 48 CFR 6101.5(b) (2019). Under the Board’s rules, only an attorney who is “licensed to practice law in a State, commonwealth, or territory of the United States or in the District of Columbia” may represent a party before the Board. Id. 6101.1. Although Mr. Aggarwal’s status is unclear, the appellant’s original notice of appeal was filed jointly by Mr. Aggarwal and the appellant’s owner, Avinash Jain. Because our rules permit a corporation to “appear by one of its officers,” id. 6101.5(a)(1), we designate Mr. Jain as the appellant’s representative in this appeal and need not at this time resolve Mr. Aggarwal’s status. Nevertheless, to the extent that Mr. Aggarwal files future appeals with the Board, he will need to indicate that he is licensed to practice in the manner required by the Board’s rules. CBCA 6704 2 Before Board Judges SULLIVAN, LESTER, and RUSSELL. LESTER, Board Judge. On February 12, 2020, respondent, the Agency for International Development (USAID), filed a motion to dismiss this appeal for lack of jurisdiction, arguing that the USAID contracting officer had withdrawn the final decision asserting a government claim against appellant, Mahavir Overseas (Mahavir), and that, absent an outstanding final decision, the Board lacks jurisdiction over the appeal. Alternatively, USAID argued that the contracting officer’s decision asserting the government claim was never valid under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2018), because the dollar amount that USAID demanded Mahavir pay, although stated in a “sum certain,” was inconsistent with the written explanation supporting that demand. Although we question the merits of USAID’s jurisdictional arguments,2 we need not resolve them. During the Board’s review of the parties’ submissions, the Board discovered that Mahavir’s notice of appeal was filed more than ninety days after Mahavir received the contracting officer’s decision. That untimeliness bars us from considering the merits of Mahavir’s appeal, although, because USAID has now withdrawn its contracting officer’s decision, Mahavir will not be time-barred from returning to the Board if, at a later date, USAID restarts a new appeal deadline by reissuing it. Unless and until the USAID contracting officer issues a new decision reasserting USAID’s claim, however, we cannot entertain Mahavir’s challenge to it and therefore dismiss this appeal for lack of jurisdiction. Background On October 4, 2019, the USAID contracting officer issued a final decision, captioned a “Final Measure Notice,” alleging that USAID had to destroy 30,989 hygiene kits provided by Mahavir under Blanket Purchase Agreement (BPA) call award numbers AID-OAA-BC- 2 We note that, once a contractor establishes jurisdiction through its timely appeal of a contracting officer’s decision asserting a government claim, it is not (as USAID argues) the subsequent withdrawal of the contracting officer’s decision that moots the action, creating a jurisdictional deficiency. It is the elimination of the dispute between the parties that was embodied within the decision that causes a case to become moot. See AT&T Corp., GSBCA 13931-TD, 98-2 BCA ¶ 29,897 (the contracting officer’s act of withdrawing a decision, “in and of itself, does not necessarily deprive us of our jurisdiction”); Security Services, Inc., GSBCA 11052, 92-1 BCA ¶ 24,704 (1991) (“[E]ven though the final decision has been withdrawn by the contracting officer, the dispute remains.”). CBCA 6704 3 17-00019 and AID-OAA-BC-17-00033 because of mold growth and demanding that Mahavir repay $1,023,204 to USAID.