CBCA 5447

DISMISSED FOR LACK OF JURISDICTION: December 13, 2016 CBCA 5447 MUSTAFA KHAMOSH GROUP, Appellant, v. DEPARTMENT OF STATE, Respondent. Mustafa Wali, Chief Executive Officer of Mustafa Khamosh Group, Dubai, UAE, appearing for Appellant. Dennis J. Gallagher, Department of State, Rosslyn, VA, counsel for Respondent. Before Board Judges GOODMAN, LESTER and RUSSELL. GOODMAN, Board Judge. Respondent has filed a motion to dismiss this appeal for lack of jurisdiction and/or failure to state a claim upon which relief can be granted. We grant the motion and dismiss the appeal for lack of jurisdiction. Background On August 16, 2016, the Board received a submission from the contractor, consisting of email correspondence and documentation that appeared to be a contract modification arising from a termination for convenience of a contract. The Clerk of the Board inquired from the contractor if a claim had been submitted to the Government or if a contracting officer’s appealable final decision had been issued. The contractor responded by referring to the documentation previously submitted. CBCA 5447 2 On August 23, 2016, the Board issued an order on proceedings that read in relevant part: While the Board has procedurally docketed this submission as an appeal, the Board raises the threshold issue of jurisdiction, as it does not appear that a claim has been submitted by the contractor that has been deemed denied or that an appealable contracting officer’s decision has been issued, which would give rise to the Board’s jurisdiction pursuant to the Contract Disputes Act of 1978, 41 U.S.C. §§ 7101-7109 (as codified by Pub. L. No. 111-350, 124 Stat. 3677, 3816-3826 (2011). The order on proceedings directed appellant to submit a statement, supported by documentation, setting forth facts that would establish the Board’s jurisdiction in this matter–whether the contractor has submitted a claim, and if so, the status of that claim, whether sufficient time has passed for the claim to have been deemed denied, or whether a contracting officer’s appealable decision has been issued. Respondent was directed to submit a similar statement, or alternatively, if the Government did not believe there was a factual basis for jurisdiction, the Government was directed to file a motion to dismiss the appeal, explaining its position with supporting documentation. Respondent filed a motion to dismiss the appeal for lack of jurisdiction and/or failure to state a claim upon which relief can be granted, pursuant to Board Rule 8(c)(1). Respondent’s motion read in relevant part: On April 30, 2016, the United States Embassy in Kabul, Afghanistan issued Order No. SAF20016M0944 to Mustafa Wali Mohammad/Mustafa Khamosh Group of Companies for various quantities of 23 items of kitchenware. Some items were delivered and some were not. After an extensive e-mail correspondence between the parties, Modification No. 2 to the Order was issued by the Embassy on August 9, 2016.