ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                  )
                                              )
American Green Land Construction Co.          )      ASBCA No. 60986
                                              )
Under Contract No. W91JA4-l l-C-7153          )

APPEARANCE FOR THE APPELLANT:                        Mr. Haafiz
                                                      Corporate Officer

APPEARANCES FOR THE GOVERNMENT:                      Raymond M. Saunders, Esq.
                                                      Army Chief Trial Attorney
                                                     CPT Sarah E. Park, JA
                                                      Trial Attorney

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

       The government moves to dismiss this appeal for lack of jurisdiction,
contending that appellant, American Green Land Construction Co., did not submit a
claim to a contracting officer prior to filing this appeal. We grant the motion.

            STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

        1. On 17 May 2011, the Department of the Army awarded Contract
No. W91JA4-l l-C-7153 to appellant for the construction and installation of a security
perimeter wall, gate, and guard tower around a water waste treatment facility in
Afghanistan for a total contract value of7,131,286 Afghani or about $145,000 (R4, tab 1
at 1-3, 33 1). The contract incorporated standard Federal Acquisition Regulation clauses
52.233-1, DISPUTES (JUL 2002); and 52.249-1, TERMINATION FOR CONVENIENCE OF THE
GOVERNMENT (FIXED-PRICE) (SHORT FORM) (APR 1984) (id. at 20).

        2. By memorandum dated 2 September 2011, the government terminated the
contract for its convenience (R4, tab 7 at 5). In an email dated 6 September 2011,
appellant submitted a termination settlement proposal, seeking payment for incurred costs
in the total amount of$141,242. Appellant did not certify its proposal. 2 (R4, tab 8).


1
    Citations to the Rule 4 file are to the consecutively-numbered pages.
2
    Although not directly relevant because we conclude that we lack jurisdiction, we
         observe that the Rule 4 file contains what appears to be a signed bilateral
         modification dated 29 September 2011 reflecting a no cost settlement of the
         termination (R4, tab 12).
        3. On 10 January 2017, appellant filed what it referred to as a claim letter with
the Board, which the Board docketed as a notice of appeal. It attached a number of
documents to the notice, including copies of email correspondence between appellant
and the contracting officer and an undated document styled as a claim letter with an
apparent defective Contract Disputes Act (CDA) certification. 3 In the claim letter,
appellant seeks payment in the amount of $140,909 and stated that it had received no
response from the government to its 6 September 2011 settlement proposal. There is
nothing in the record that demonstrates that appellant previously submitted this claim
to the contracting officer.

       4. The government has filed a declaration from contracting officer Celeste R. Hobert
of the Army Contracting Command - Rock Island in which Ms. Hobert testifies she
reviewed the contract file but did not find a claim from appellant (R4, tab 15).

                                       DECISION

       The government contends that we lack jurisdiction because appellant failed to
submit a claim to the contracting officer prior to the filing of the appeal. The Board's
jurisdiction under the CDA is dependent upon a contractor's prior submission of a
proper claim to a contracting officer for a decision. 41 U.S.C. § 7103(a); Lael Al
Sahab & Co., ASBCA No. 58346, 13 BCA ~ 35,394 at 173,662. As the proponent of
our jurisdiction, appellant bears the burden of establishing jurisdiction by a
preponderance of the evidence. CCIE & Co., ASBCA Nos. 58355, 59008, 14-1 BCA
~ 35,700 at 174,816. We conclude that appellant has not met this burden. There is no
evidence in the record that demonstrates that appellant ever submitted to the
contracting officer the undated claim included with its notice of appeal to the Board.
Accordingly, we lack jurisdiction to entertain the appeal. 4




3   The CDA requires a contractor asserting a claim over $100,000 to certify that:
        "(A) the claim is made in good faith; (B) the supporting data are accurate and
        complete to the best of the contractor's knowledge and belief; (C) the amount
        requested accurately reflects the contract adjustment for which the contractor
        believes the Federal Government is liable; and (D) the certifier is authorized to
        certify the claim on behalf of the contractor." 41 U.S.C. § 7103(b)(l).
4   Although appellant did not make this contention, we have considered whether its
        termination settlement proposal could be a basis for our jurisdiction. See James M
        Ellett Constr. Co. v. United States, 

, 1543-44 (Fed. Cir. 1996). However,
        because appellant did not certify its proposal we lack jurisdiction. 41 U .S.C.
        § 7103(b).
                                             2
                                    CONCLUSION

        The government's motion is granted. The appeal is dismissed without prejudice
to the contractor's submission of a certified claim to the contracting officer for a final
decision.

       Dated: 10 May 2017



                                                   MICHAEL N. O'CONNELL
                                                   Administrative Judge '
                                                   Armed Services Board
                                                   of Contract Appeals


 I concur                                          I concur




 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. 60986, Appeal of
American Green Land Construction Co., rendered in conformance with the Board's
Charter.

       Dated:



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




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