ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of--                                   )
                                              )
Arab Shah Construction Company                )      ASBCA No. 60553
                                              )
Under Contract No. H92237-11-C-0639           )

APPEARANCE FOR THE APPELLANT:                        Mr. Mohammad Edress
                                                      President

APPEARANCES FOR THE GOVERNMENT:                      Col Matthew J. Mulbarger, USAF
                                                      Air Force Chief Trial Attorney
                                                     Gregory A. Harding, Esq.
                                                      Trial Attorney

          OPINION BY ADMINISTRATIVE JUDGE TING ON THE
     GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION

       Arab Shah Construction Company (appellant) filed a notice of appeal seeking
compensation under a contract awarded and performed in Afghanistan. Because no
proper Contract Disputes Act claim was filed with the contracting officer (CO), we
dismiss the appeal for lack of jurisdiction.

        STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

       1. In March 2011, Appellant was awarded a contract for $62,000 to construct a
metal pole barn in the village of Mangwal, *Afghanistan (R4, tab 1).

       2. By email dated 23 May 2011 at 3:35 PM, the CO, SSgt Aaron Waltersdorff,
informed appellant that the pole barn was no longer needed at Mangwal, but "[i]fyou
can keep the same price [I] will send you a modification to change the location [to
Gardez] and then you can keep this contract" (R4, tabs 2, 7).

        3. Appellant responded that same day at 3 :40 PM with "[ o]kay no problem [I]
want to be fair with us we have delivered our team and [materials] to Mangwell now we
have return them to Gardez it cost us more money." The email string also includes
conversations between appellant and the CO referencing other contracts between the
parties. (R4, tab 7) (Syntax in original)


* As the file contains numerous variations on the spelling of this village, we note the
       correct spelling is Mangwal.
       4. Later that same day, 23 May 2011, the parties executed Modification
No. POOOO 1, changing the location for the pole barn from Mangwal to the village of
Gardez, Afghanistan. The bilateral modification confirmed that the purpose of the
modification was to change the location where the work would be performed and stated,
"All other terms and conditions remain unchanged." (R4, tab 3)

       5. A receipt dated 26 May 2011 indicates appellant paid $19 ,000 to American
Alliance Logistic Services. The comments section of the invoice reads:

              Transportation of Materials from Mangwel to Gardez Paktia
              ONLY.

              The prime contractor is Arab Shah Construction Co, per our
              regulation, our company received advance payment for the
              transportation.

The description category on the invoice states: "Transportation of materials from Mangwel
to Gardez Paktia Date of delivery 27 May 2011 or per KO, COR order." (R4, tab 8)

       6. A pay voucher indicates appellant was paid $62,224.09 on 22 September
2011, $62,000.00 contract amount plus $224.09 in interest (R4, tab 4).

       7. Appellant filed an undated notice of appeal received by the Board on 22 April
2016, alleging that it "never got the payment for the services yet, we did deliver the
materials and all the equipments to the site." The Board docketed the appeal as ASBCA
No. 60553.

        8. On 17 May 2016, the government moved to dismiss the appeal for lack of
jurisdiction because appellant never submitted a claim in a sum certain to a CO.

        9. Appellant responded to the motion by email dated 11 June 2016, attaching a
letter already sent to government counsel stating "We did provide modification show the
location of project is change of after the delivery of materials, so it is strong proof show
we did expend money for the delivery of materials from one location to other location."
No copies of correspondence between appellant and the CO accompanied the response.

       10. In an email dated 23 June 2016, the Board was copied on correspondence
between the parties which indicated appellant was seeking payment for $19,000 in
transportation costs due to the change in performance location (Bd. corr. file, email                      -0--C-
                                                 PETER D. TING
                                                 Administrative Judge
                                                 Armed Services Board
                                                 of Contract Appeals
(Signatures continued)




                                            4
I concur                                      I concur



  .&?7~~HH
MARK N. STEMPLER                              RICHARD SHACKLEFORD
Administrative Judge                          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. 60553, Appeal of Arab Shah
Construction Company, rendered in conformance with the Board's Charter.

      Dated:


                                             JEFFREY D. GARDIN
                                             Recorder, Armed Services
                                             Board of Contract Appeals




                                         5