Judges: Prouty
Filed: Oct. 15, 2018
Latest Update: Mar. 03, 2020
Summary: Sea Cycle Construction Company (appellant) appeals from a contracting, officer's final decision denying its claim for payment under a contract for construction, work in Afghanistan. Appellant timely filed its notice of appeal, with the Board by email dated June 27, 2018.
ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Sea Cycle Construction Company ) ASBCA No. 61671
)
Under Contract No. W91B4L-10-C-0229 )
APPEARANCE FOR THE APPELLANT: Mr. Abdul Jabar
Vice President
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
MAJ Bruce H. Robinson, JA
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE PROUTY ON THE
GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION
Sea Cycle Construction Company (appellant) appeals from a contracting
officer's final decision denying its claim for payment under a contract for construction
work in Afghanistan. The Army has moved to dismiss for lack of jurisdiction because
appellant failed to certify its claim as required under the Contract Disputes Act (CDA),
41 U.S.C. §§ 7101-7019. Appellant opposes the Army's motion. We grant the motion
and dismiss the appeal.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
On Augu~t 6, 2010, the Army awarded Contract No. W91B4L-10-C-0229
( contract) to appellant for site preparation, installation of a perimeter fence and gates,
and construction of a reinforced concrete pad at Kandahar Airfield, Afghanistan (R4,
tab 1 at 1-5). The contract included Federal Acquisition Regulation (FAR) 52.211-10,
COMMENCEMENT, PROSECUTION, AND COMPLETION OF WORK (APR 1984), which
required appellant to commence performance within 5 calendar days after receipt of
notice to proceed (NTP) and complete the work no later than 60 days from the date of
receiving the NTP (id. at 9).
By email dated August 6, 2010, the contracting officer forwarded an NTP to
appellant which stated that appellant had five days from August 6, 2010, to begin
performance, and that the work had to be completed by October 5, 2010 (R4, tab 8
at 5-6). Appellant returned the NTP to the contracting officer by email dated
August 7, 2010, and requested that the Army meet with its representatives at the work
site the following day to discuss badging issues for appellant's employees (id. at 5-7).
Although the parties exchanged several emails between August 8 and August 10,
2010, arranging for times to meet, the proposed meeting never occurred because
appellant was never able to gain access to the work site (id. at 7-13 ).
By email dated August 11, 2010, the Army contracting officer notified
appellant that because it was not able to begin performance on the date required by the
NTP, the Army would be pursuing a no-cost cancellation of the contract (R4, tab 8
at 13). The Army then cancelled the contract in its entirety through a modification
dated August 11, 2010 (R4, tab 2), and, by email dated August 13, 2010, forwarded a
copy of the modification to appellant requesting its signature (R4, tab 8 at 14).
Appellant refused to sign the modification, instead insisting that it was ready to
perform the contract (id. at 15).
By email dated March 25, 2018, appellant submitted a claim to the Army
Contract Command in Rock Island, Illinois (ACC-RI), seeking payment in the amount
of $342,590 for the inventory it allegedly purchased in preparation for performing the
contract (R4, tab 8 at 1-3). Appellant included a copy of the contract, the NTP, the
email traffic between the parties in August 2010, and receipts for the purchased
inventory (id. at 4-19). Appellant's claim did not include a signed statement that
includes the certification language, in whole or in part, found at 41 U.S.C. § 7103(b)
for claims exceeding $100,000; nor was any such statement found elsewhere in the
Rule 4 file, or in any of the submissions from appellant to the Board (R4, tab 8).
By letter dated June 12, 2018, the ACC-RI contracting officer denied
appellant's claim because appellant had failed to file a certified claim within the CDA
six-year statute of limitations (R4, tab 12). Appellant timely filed its notice of appeal
with the Board by email dated June 27, 2018.
DECISION
The Army has moved to dismiss this appeal for lack of jurisdiction on the basis
that appellant failed to certify its claim as required under 41 U.S.C. § 7103(b).
Appellant objects to the motion, stating that it has provided all documents showing it
is legally entitled to recover on its claim.
Appellant bears the burden of proving the Board's subject matter jurisdiction by
a preponderance of the evidence. Reynolds v. Army & Air Force Exchange Service,
846 F.2d 746 (Fed. Cir. 1988); United Healthcare Partners, Inc., ASBCA No. 58123,
13 BCA 135,277 at 173,156. Under the CDA, "[e]ach claim by a contractor against
the Federal Government relating to a contract shall be submitted to the contracting
officer for a decision." 41 U.S.C. § 7103(a)(l). In addition, for claim?exceeding
$100,000, the contractor must certify that:
2
(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); see FAR 2.101 (definition of claim).
Certification "is a jurisdictional prerequisite that must be satisfied by the
contractor before it may appeal the contracting officer's claim denial." Kandahar
Gravel Supplies and Logistics, ASBCA No. 60531, 17-1 BCA ,i 36,688 at 178,632
(quoting Abdul Ahad Khadim Construction Co., ASBCA No. 59206, 14-1 BCA
,i 35,694 at 174,765). While a defective certification does not deprive the Board of
jurisdiction, 41 U.S.C. § 7103(b)(3), the complete absence of a certification is a
jurisdictional defect that cannot be corrected. Al Rafideen Co., ASBCA No. 59156,
15-1 BCA ,i 35,983 at 175,808. Here, appellant's claim sought payment in an amount
that exceeds $100,000, but the record contains no evidence that appellant ever
submitted the required certification to the contracting officer prior to filing this appeal.
Accordingly, we do not possess jurisdiction to hear this appeal.
CONCLUSION
The Army's motion to dismiss this appeal for lack of jurisdiction is granted.
The appeal is dismissed without prejudice to appellant submitting a properly certified
claim to the contracting officer.
Dated: October 15, 2018
J. RE'lD PROUTY
Administrative Judge
Vice Chairman
Armed Services Board
of Contract Appeals
(Signatures continued)
3
r
I' I concur I concur
/'7
ministr ve Judge
i~a-
R BERT T. PEACOCK
Administrative Judge
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. 61671, Appeal of Sea
Cycle Construction Company, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
4
