ASBCA 58800

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) New Iraq Ahd Company ) ASBCA No. 58800 ) Under Contract No. W91GFB-10-C-5005 ) APPEARANCE FOR THE APPELLANT: Mr. Abbas Abed Mohsin Owner APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney CPT Vera A. Strebel, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE GRANT ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION Appellant, New Iraq Ahd Company (NIAC), seeks $166,014 for purchased materials following a termination for default. The government has moved to dismiss this appeal for lack of jurisdiction on the basis that NIAC did not file a certified claim as required by the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. For the reasons stated below, the government's motion to dismiss is granted. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On 30 May 2010, the Regional Contracting Center (RCC) Mosul (the government) awarded Contract No. W91GFB-10-C-5005 to NIAC for the construction of two concrete pads on the storage yard in Iraq. The total contract award value was $553,700. (R4, tab 1) The contract incorporated FAR 52.249-10, DEFAULT (FIXED-PRICE CONSTRUCTION) (APR 1984), and FAR 52.233-1(c), DISPUTES (JUL 2002) by reference (R4, tab 1 at 42). 2. By letter dated 18 August 2010, the contracting officer (CO) terminated the contract for default effective 7 August 2010 due to NIAC's alleged poor performance (R4, tab 5, ~ 2). This termination was also captured in Modification No. P00001, dated 21 August 2010, which also reduced the total contract value from $553,700.00 to $45,667.60, the amount the government asserted it owed NIAC for work performed (R4, tab 6 at 1-2).  3. NIAC submitted Invoice No. 01603, dated 18 August 2010, for $45,667.50 1 which was approved for payment on 10 January 2011 (R4, tabs 8, 10). On 13 April2011, NIAC executed a "Release of Claims" containing the following language: The undersigned contractor acknowledges payment in full for all supplies, services, and/or construction provided under the subject contract in the amount of$45,667.60 and hereby releases and discharges the United States Government of any further liabilities, demands, obligations, and claims arising under or by virtue of said contract. (R4, tab 11) 4. Over two years later, NIAC contacted the current CO by email on 1 June 2013 requesting "please check this contract" (R4, tab 13). On 3 June 2013, the CO responded that the contract had been closed on 13 April2011 (R4, tabs 13, 14). On 4 June 2013, the CO provided further information, in particular that the contract had been "terminated for cause" on 7 August 2010, that NIAC had been paid $45,667.60 for work performed, and that NIAC had executed a release of claims on 13 April2011 (R4, tab 14). 5. On 9 June 2013, NIAC sent the CO what it characterized as a "claim" for materials. Specifically, NIAC stated: [Y]es I signed the notice for the amount of achieved work $45,667.60. [T]his amount is for the work we did. [B]ut I bought the materials for this work. I have receipts prove that, I did not get a compensation for the losing, so please take my claim in your consideration and assist me as much as you can to get me paid my lost. . . . I just demand for my right. 1 Invoice No.