Judges: Hartman
Filed: Aug. 21, 2017
Latest Update: Mar. 03, 2020
Summary: but does not excuse complaint's failures if such there be).I certify that the foregoing is a true copy of the Opinion and Decision of the, Armed Services Board of Contract Appeals in ASBCA No. 60723, Appeal of, Elizabeth Construction Company, rendered in conformance with the Board's Charter.
ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Elizabeth Construction Company ) ASBCA No. 60723
)
Under Contract No. 000000-00-0-0000 )
APPEARANCE FOR THE APPELLANT: Ms. Mariam Sharifi
CEO and President
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
MAJ Elinor J. Kim, JA
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE HARTMAN
ON THE GOVERNMENT'S MOTION TO DISMISS
Appellant believes a base access determination made by the Department of the
Army based on information or documents appellant submitted to the Army via a
Department of Defense website to be "erroneous" and seeks review by us of that
determination. The Army seeks dismissal of appellant's appeal for failure to assert a
claim within our jurisdiction.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
In August 2016, the Board received an email from appellant, Elizabeth Construction
Company (ECC), stating "Please find attached notice of appeal, thank you very much."
Attached to the email was (1) a sheet setting forth various data (e.g., the names ofECC's
officers, date of establishment, address, "Legal Status" in Afghanistan, "AISA"
registration, phone number, tax identification number, email account, DUNS number,
NCAGE Code, and JCSS Vendor identification number); and (2) a document stating as
follows:
With due respects, This appeal is for my JCCS, our
company established in 2016, we upload all the required
documents in the JCCS, they denied our company for the
base access which is I am sure error decision, there was no
other option or other office to contact and solve this issue,
that is why I appeal with ASBCA to solve our problem.
Our current POC for the JCCS in Afghanistan is
SFC Natasha natasha.s.mckellum.mil@mail.mil
I respectfully from Board please help to solve this issue,
thank you very much.
Very Respectfully,
Ms. Mariam, Sharifi
CEO and President
Elizabeth Construction Company
(Syntax and punctuation in original)
The Board docketed this correspondence as appeal ASBCA No. 60723. Less
than two weeks later, the Department of the Army filed a motion to dismiss the appeal
for lack of jurisdiction and a motion to stay proceedings.
In its motions, the Army contends: (1) "appellant neither alleges nor
establishes that an express or an implied contract even exists to invoke jurisdiction"
under the Contract Disputes Act (CDA); (2) appellant "neither alleges nor establishes
that a claim was submitted" to a contracting officer; and (3) the Board should stay
submission of a Rule 4 file and other proceedings while it considers the Army's
motion because "the issue of jurisdiction is dispositive" (gov't mot. at I). Two days
after the Army filed its motion, on 18 August 2016, ECC sent an email to the Board
and Army stating:
I object the motion to dismiss, because I give you the POC
of the JCCS they denied our base access without any
reason, and we need justice, that is why I come to ASBCA
because I had no other choice, thank you very much.
The same day, the Board ordered that ECC shall have 30 days to respond to the
Army's motion to dismiss and that the motion to stay other proceedings was granted
pending a determination on the motion to dismiss.
By order dated 27 September 2016, the Board advised ECC it had received
ECC's brief response to the Army's motion dated 18 August 2016 and ifECC intends
to provide a more detailed response to the Army's motion it may do so no later than
18 October 2016. ECC, however, submitted nothing further to the Board by
18 October 2016.
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After the appeal was assigned to the docket of a judge, by order dated
4 November 2016, the Board notified ECC as follows:
By Order dated 18 August 2016, the Board granted the
government's request to stay proceedings. However,
appellant had not yet filed a complaint and, under Board
Rule 6(a), still had 15 days within which to do so.
Board Rule 6(a) requires an appellant to file a
complaint that sets forth simple, concise, and direct
statements of each of its claims. The complaint must also
set forth the basis, with appropriate reference to contract
provisions, of each claim and the dollar amount claimed, if
any. Essentially, the complaint should inform the Board of
the facts that led to this dispute and then briefly explain
what appellant wishes the Board to do and why appellant
believes the Board should do it.
Accordingly, the stay of proceedings in this appeal
is lifted to allow appellant to file a complaint that satisfies
the requirements of Board Rule 6(a). Appellant shall file
its complaint within 21 days of the date of this Order or
immediately advise the Board how much more time is
needed and why. Should appellant fail to comply with this
Order, the Board shall proceed with its consideration of the
government's motion to dismiss on the basis of the notice
of appeal.
Upon receipt of appellant's complaint, the stay of
proceedings in this appeal will resume.
ECC has not filed a complaint or any other document with the Board in response to the
Board's November order.
DECISION
In deciding a motion to dismiss for lack of subject matter jurisdiction, we only
accept as true an appellant's uncontroverted factual allegations. Engage Learning, Inc.
v. Salazar, 660 F.3d 1346, 1354 (Fed. Cir. 2011); Cedars-Sinai Med. Ctr. v. Watkins,
11F.3d1573, 1584 n.13 (Fed. Cir. 1993). In its motion to dismiss for lack of subject
matter jurisdiction, the Army does not controvert any specific allegation made by
ECC. Rather, it merely asserts that the term "JCCS" used by ECC refers to the Joint
Contingency Contracting System now referred to as the Joint Contingency and
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Expeditionary Services, which is an internet-based information technology platform
used by the government to provide centralized vendor registration, post solicitations
and proposals, and provide other support to contingency and expeditionary programs
that rapidly deploy for humanitarian, peacetime, and wartime missions (gov't mot.
at 1-2, ex. 1). We therefore accept the allegations made by ECC as true for purposes
of resolving this motion and draw all reasonable inferences in its favor. E.g., Trusted
Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011); Henke v.
United States,
60 F.3d 795, 799 (Fed. Cir. 1995).
Pro se litigants, such as ECC, are held to a less stringent pleading standard than
those represented by counsel. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972).
However, they are not exempt from meeting jurisdictional prerequisites. See
Henke,
60 F.3d at 799 (fact appellant is acting prose may explain ambiguities in complaint,
but does not excuse complaint's failures if such there be). ECC bears the ultimate
burden of establishing jurisdiction for us to resolve its appeal. It, therefore, must
allege facts sufficient to articulate a claim that is within our jurisdiction. See
Kam-Almaz v. United States,
682 F.3d 1364, 1367-68 (Fed. Cir. 2012) (affirmance of
dismissal on pleadings for failure to allege facts necessary to establish a contract with
government).
ECC alleges, in sum, that it "uploaded documents" the government "required"
to the "JCCS" internet platform and the government made a determination erroneously
denying it "base access." It does not allege that a contract existed between it and the
government.
The Contract Disputes Act (CDA) grants this Board jurisdiction over appeals
"from a decision of a contracting officer (CO) of any executive agency ... relative to
a contract made by that agency." Engage Learning, 660 F.3d at 1353; NOVA
Technology Corp., ASBCA No. 57943, 12-2 BCA ~ 35,062 at 172,228; 41 U.S.C.
ยง 7105( e)(1 )(B). Thus, to establish Board jurisdiction, an appellant "need only allege
the existence of a contract." Engage
Learning, 660 F.3d at 1353; Black Tiger Co.,
ASBCA No. 59189, 16-1 BCA ~ 36,423 at 177 ,569; Dongbuk R&U Engineering Co.,
ASBCA No. 58300, 13 BCA ~ 35,389 at 173,637 (non-frivolous assertion of a contract
sufficient to establish jurisdiction); Robert B. Beachboard ta Save Columbia Council,
ASBCA No. 33362, 87-1BCA~19,532 at 98,703 (contract between government and
contractor is sine qua non of our jurisdiction). Here, ECC has not alleged existence of
any contract between it and the Army. We, therefore, lack jurisdiction to entertain its
appeal.
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CONCLUSION
We dismiss the appeal for lack of jurisdiction.
Dated: 21 August 2017
TERRENCES.HARTMAN
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I fQllCW: LJ_,
RIC~CKLEFORD
Administrative Judge
~L-
OWEN C. WILSON
Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 60723, Appeal of
Elizabeth Construction Company, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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