ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Zomord Company ) ASBCA No. 59065
)
Under Contract No. H92236-07-P-4330 )
APPEARANCES FOR THE APPELLANT: Mr. Casier Fahmee
President
Mr. Hussien Fuad Albaldaoei
Manager
APPEARANCES FOR THE GOVERNMENT: Col Robert J. Preston II, USAF
Acting Air Force Chief Trial Attorney
Capt Eric J. Singley, USAF
Sarah L. Stanton, Esq.
Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE JAMES ON
GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION
This appeal arises from the contracting officer's (CO's) 22 March 2013 decision
that denied the 5 February 2013 claim of Zomord Company (Zomord) for payment of the
$150,144 contract price for 1,088 cubic meters of%-inch gravel. On 29 January 2014,
the government moved to dismiss this appeal for lack of Contract Disputes Act (CDA)
jurisdiction on the grounds that Zomord did not file its claim within six years after such
claim accrued, and did not submit an appeal within 90 days after receipt of the CO's
foregoing decision. Zomord responded to the motion on 19 February 2014.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. Effective 3 January 2007, CO Cori J. Duford of the "OCF-1 CONTRACTING
OFFICE," Balad, Iraq, awarded to Zomord commercial item Contract No. H92236-07-P-4330
(the contract) for 725 cubic meters (CM3) of%-inch gravel for the price of $100,050.00, to be
delivered 23 days after the date of contract award, i.e., by 26 January 2007, at Shark Base,
Ar Ramadi, Iraq. The contract included, inter alia, the FAR 52.212-4, CONTRACT TERMS AND
CONDITIONS-COMMERCIAL ITEMS (SEP 2005) clause. (Gov't mot., attach. 1 at 1, 4of13,
attach. 4 at 1)
2. By contract Modification No. POOOl, effective 5 January 2007, the parties
bilaterally modified the contract to increase the gravel quantity by 363 CM 3 to 1,088 CM3
and to increase the contract price from $100,050.00 to $150,144.00, with no change in
the delivery date (gov't mot., attach. 3).
3. Zomord submitted documents into evidence stating that under the contract it
delivered 440 CM 3 of gravel on 9 January 2007, 400 CM3 of gravel on 13 January 2007
and 248 CM3 of gravel on 18 January 2007 (totaling 1,088 CM3) and on 19 January 2007
it submitted a DD Form 250 invoice for $150,144.00 to OCF-1, which "Tony Bennett" of
"Shark Base, Ar Ramadi, Iraq" signed for acceptance on 20 January 2007 (app. resp.~ 3,
attachs. 1-2).
4. CO Duford asserts that on 21 January 2007 she sent contract Modification
No. P0002 (Mod. 2) to email address zomordco@yahoo.com (gov't mot., attach 4 (Duford
decl.) at~ 4). The record contains no evidence that Zomord received Mod. 2 on or about
21 January 2007, or prior to respondent's 29 January 2014 motion. 1
5. Mod. 2 is a Standard Form 30, whose block 13D stated that the authority for the
modification was "FAR Part 12.403(d), FAR [P]art 13.302-4, FAR Clause 52.212-4(1) (m)."
Block 13E stated: "IMPORTANT: Contractor ... is required to sign this document and return
1 copies to the issuing office" and block 14 stated:
1. This contract is cancelled in its entirety due to contractor
failure to meet the delivery and pricing terms of the contract.
This is a Termination for Cause, as a No Cost settlement, in
accordance with FAR 12.403(c).
2. No services or delivers [sic] were provided under this contract.
Block 26 of the SF 1449 is therefore decreased ... from
$150,144.00 to $0. No payments will be made. The
Contractor is not entitled to any payments, and the
Government will not seek any payments from the Contractor.
3. This is a final decision; you have the right to appeal under
the Disputes clause.
Zomord did not sign Mod. 2. (Gov't mot., attach. 2 at 1) As in effect on 3 January 2007,
FAR 12.403(d) was entitled "Termination/or the Government's convenience."
1
FAR 33.211, referenced by FAR 12.403(c)(3)(iv) for terminations of commercial item
contracts, provided: "(b) The [CO] shall furnish a copy of the decision to the
contractor by certified mail, return receipt requested, or by any other method that
provides evidence of receipt. This requirement shall apply to decisions on claims
initiated by or against the contractor."
2
FAR 13 .302-4, entitled "Termination or cancellation of purchase orders,"
~(a) referred the CO to "FAR 12.403 and 52.212-4(1) or (m) for commercial items";
FAR 52.212-4(1) was entitled "Termination/or the Government's convenience"; and
FAR 52.212-4(m) was entitled "Termination/or cause."
6. CO Duford's 21January2007 memorandum for record stated, inter alia:
In the case of 07-P-4330, the vendor failed to
perform/delivery on three separate occasions. Each time he
offered some excuse. However, despite repeated
messages ... advising him how serious we took the
contract ... he continued to not perform ....
...After the third missed delivery I made the decision to not
prolong the process ....
...The USG had not received any material, as such a
Termination for Cause was issued ....
(Gov't mot., attach. 2 at 2)
7. The record contains no evidence confirming that CO Duford provided that
21January2007 memorandum to Zomord prior to respondent's jurisdictional motion.
Respondent submitted no other evidence to substantiate the CO's statements about her
messages to Zomord and Zomord's failure to deliver gravel to Ramadi.
8. Zomord alleges that it never received contract Mod. 2. Zomord's 9 March 2007
email to the OCF-1 CO stated: "[W]e have completed delivery this contract [07-P-4330] and
in attached the invoice." OCF-1 CO "Kelly" wrote to Zomord on 10 March 2007 under the
heading "Contract# 07-P-4330 Ramadi Gravel": "Thank you for delivering the gravel.
Your payment has been sent out, please allow at least 30 days for payment to post."
(App. resp. ~~ 3-4, attachs. 1, 3 at 2)
9. On 1 May 2012 Zomord submitted an email to U.S. Special Operations
Command (USSOC) CO Paul S. McClain stating:
This is Zomord Co from Iraq. Our company signed Contract
# H92236-07-P-4330 for gravel at Camp Ramadi, Iraq. My
company completed the delivery on this contract and we have
sent voice for the contracting officer and the contracting
officer at that time sent me an e-mail told me that this
payment will be made within 30 days and no payment for this
date. I was try contact the contracting officer but no response
3
about this payment. I have contacted SCO [sic] closeout
contracts about this and some one gave me your POC. Can
you please check in your files about payment this contract?
Please help me. Thank you.
Considering Zomord's $150,144 invoice of 19 January 2007, "voice" apparently meant
"invoice." In this context the amount Zomord sought is readily determinable. However,
Zomord's submission had no CDA certification. (App. resp.~ 5, attach. 3 at 1)
10. The 31January2013 email from USSOC's Jonathan H. Katz 2 to Zomord
stated: "Please see the attached letter in response to your uncertified claim on 12 August
2012" (gov't mot., attach. 7 at 5of6). The appeal record does not include any attached
letter or 12 August 2012 Zomord claim to which Mr. Katz referred.
11. Zomord's 5 February 2013 email to Mr. Katz stated:
First of all; I know that my company has performed a service
for the United States Government represented by the United
States Army, and I know that since my company has
performed this service, we have the right to get paid for what
we did, this is our right as you can see ..
I was know when I worked with United States Government
which represents this Great Country, I was know that we will
not lose even one cent, as long as we have a right, United
States will give us our right, and I was know that no one ... can
ban me from taking my rights, and I am still know that..
From my side I am ready to provide you with all supporting
documents you may need, such as: schedule of delivery,
purchase receipts, plate numbers of truck, and e-mail
correspondent between my company and the customers ..
I beg you to reconsider your decision, and I beg you to cancel
the memorandum of rejection .. and I am ready to provide you
with everything you want and I am sure that you will help me
in this matter. Thank you [syntax and punctuation in original]
(Gov't mot., attach. 7 at 4-5 of 6) The record does not include the decision or the
memorandum of rejection to which Zomord's final paragraph referred.
2
The record contains no evidence that Mr. Katz was a CO.
4
12. Mr. Katz's 5 February 2013 emails told Zomord that it must certify its claim in
accordance with FAR 33.207(a) in order for the government to provide a formal decision
(gov't mot., attach. 7 at 4 of 6). Zomord manager Hussein Fuad signed a certification dated
5 February 2013 using the language in FAR 33.207(c) (Bd. corr. ltr.