ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Favor Company ) ASBCA No. 58843
)
Under Contract No. 000000-00-0-0000 )
APPEARANCE FOR THE APPELLANT: Mr. Majid Hamid
President
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
MAJ Nancy J. Lewis, JA
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE DICKINSON ON THE
GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION
Appellant Favor Company (Favor) filed a notice of appeal (NOA) with the
Board to which was attached a document identified by Favor as a contract. The
government filed a motion to dismiss for lack of jurisdiction. The purported contract
(SOF if 1) does not contain a disputes clause. It has not been alleged that we have
jurisdiction over the alleged contract under anything other than the Contract Disputes
Act (CDA). We grant the motion.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. The record contains a Memorandum for Record dated 16 June 2007 which
contains the following information:
SUBJECT: Contract for the delivery of Rice, Flour and
Cooking Oil
1.1 Project Name: Rice, Flour and Cooking Oil for
Humanitarian Assistance
1.2 Coalition Organization Requesting Contract:
CPT David Cartwright Jr.
3rd BCT, Project Purchasing Officer
FOB Warhorse, Iraq ...
1.3 Contractor Info:
... Favor Company ...
1.4 Content of Proposal: The Contractor will deliver Rice,
Flour and Cooking [Oil] as outlined in the scope of work to
FOB Warhorse.
1.5 Schedule of Work: The Contractor will deliver all of
the Rice, Flour and Cooking Oil in one shipment. All
Rice, Flour and Cooking Oil will be delivered to FOB
Warhorse, Iraq. . . . The Contractor will discuss any need
to deviate from the scope of work with the Project
Coordination Cell before doing so. The Projects
Coordination Cell is the only agency with the authority to
permit the Contractor to deviate from the scope of work
and the only agency that can issue orders to the
Contractor....
1.6 Cost of Work: $15,000.00. The Contractor is
expected to purchase his materials at the price that he
included in the Scope of Work. Any deviation from the
agreed purchases or increase in cost of materials will be at
the expense of the Contractor.
1. 7 Purchase Request and Commitment Number:
CP3CAV71413546 BN BULK
1.8 Performance Time: The Contractor has 15 days to
complete the project. The Contractor will notify the
Coalition Project Manager if he thinks that he will go past
schedule ....
1.10 Payment: The Contractor will be paid 100% of
payment upon delivery of the goods.
(R4, tab 3) The document was signed by Coalition Project Manager/Project
Purchasing Officer CPT David Cartwright Jr., Assistant Coalition Project
Manager/Paying Agent CPT Joseph C. Catamisan, and Shawqi Ali on behalf of Favor
(id.). It is this document that appellant contends is a contract over which this Board
may exercise jurisdiction.
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2. The government paid for supplies delivered under CP3CAV71413546 in full
by voucher No. 207399 dated 3 August 2007 (R4, tab 6, Raymond decl. if 4).
3. The record shows that the first contact by Favor seeking the alleged payment
now at issue (see SOF if 4) was on 10 April 2013 (R4, tab 7, Wysoske decl. if 2). The
record contains the declaration of Joan Wysoske, Contracting Officer (CO) and Chief
of the Reachback Closeouts Office for the U.S. Army, that stated:
4. The appellant's Agreement is not a standard
contract. The Agreement appears to be a Commanders'
Emergency Response Program ("CERP") agreement based
upon the PR&C numbering system, type of services
purchased, and general document format. ...
6. [T]he appellant's Agreement does not exist in the
government contract retrieval and archival systems.
8. To date, the appellant has not submitted a contract
that is signed by a contracting officer. Also, to date, the
appellant has not submitted an agreement with a contract
number.
9. Donna Raymond of ARCENT did inform the
contractor that the agreements that he provided had been
paid. The contractor also repeatedly asked Donna Raymond
and ARCENT to provide a copy of the voucher or payment
documents. To date, the appellant, in support of his
payment request, has only submitted documents of a service
that has already been paid.
10. Furthermore, to date, the appellant has not
submitted [a] valid claim or any other claim documentation
to ACC-RI as required by the Contract Disputes Act,
41 U.S.C. § 7103 and FAR 52.233-1 DISPUTES (JUL 2002).
Accordingly, neither me [sic] nor my office has issued a
contracting officer's final decision[.]
(R4, tab 7)
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4. On 21 August 2013 Favor emailed a NOA to the Board. The appeal was
docketed as ASBCA No. 58843. Favor agrees that it was paid in full under
CP3CAV71413546, but alleges that it has never been paid under CP3CAV71413546
BN BULK (Bd. corr. ltr.