ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
KBAJ Enterprises, LLC t/d/b/a Home Again ) ASBCA No. 60014
)
Under Contract No. SPE5EM-14-V-5503 )
APPEARANCE FOR THE APPELLANT: Mr. Joseph Dente
General Manager, Member and
Corporate Officer
APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq.
DLA Chief Trial Attorney
John F. Basiak, Jr., Esq.
Steven C. Herrera, Esq.
J. Maxwell Carrion, Esq.
Trial Attorneys
DLA Troop Support
Philadelphia, PA
OPINION BY ADMINISTRATIVE JUDGE MELNICK ON
GOVERNMENT'S MOTION TO DISMISS
This appeal arises from an alleged deemed denial by the contracting officer (CO)
of appellant's claim seeking payment for delivered items under a purchase order (PO).
The government moves to dismiss the appeal for lack of jurisdiction, or alternatively, for
failure to state a claim upon which relief can be granted. Subsequent to the filing of the
government's motion, the Board, sua sponte, directed the parties to brief whether a sum
certain claim was submitted to a CO for a decision pursuant to the Contract Disputes Act
of 1978 (CDA), 41 U:S.C. §§ 7101-7109. In response, the government contends that no
proper claim was submitted to the CO. Because we conclude that a claim was not
submitted to a CO, we dismiss the appeal for lack of jurisdiction.
FINDINGS OF FACT
1. On 31 July 2014, Defense Logistics Agency Troop Support, Hardware
(DLA or government), issued unilateral PO No. SPE5EM-14-V-5503 (PO 5503) to
KBAJ Enterprises, LLC t/d/b/a Home Again 1 (KBAJ or appellant) for the delivery of
1
The PO was issued to "KBAJ ENTERPRISES DBA." This appeal was filed by
appellant's representative in the name of KBAJ Enterprises LLC. At the
Board's direction, the parties clarified that the proper name of appellant in this
500 weather-resistant neoprene rubber strips for a total price of $4,505 (R4, tab 3
at 9-13 2; compl. ~ 4). The PO contemplated delivery of the quantities by
10 November 2014 (R4, tab 3 at 13).
2. Under block 6 of PO 5503, Ms. Sharon Sax is identified as the "Local
Admin" (R4, tab 3 at 9). Ms. Sax was not the CO who issued the PO.
3. On 17 September 2014, KBAJ received notice from DLA that 60 of the 500
shipped items were accepted (comp I. ~ 31; gov't mot. at 3, ~ 16). Two days afterward,
KBAJ received a partial payment of $540.60 for the accepted items without allegedly
receiving any information as to why the other shipped items were not accepted (comp I.
~~ 32-33; gov't mot. at 3, ~ 17).
4. Between September 2014 and March 2015, KBAJ corresponded with various
DLA personnel, including Ms. Sax and her supervisor Mr. Jonathan Hampton, who
identified himself as a Branch Chief for the "Industrial Hardware/Post Award-FHCC"
division, seeking an explanation as to why DLA withheld payment of $3,964.40, the
balance corresponding to the 440 items under PO 5503 that DLA did not formally
accept (R4, tab 4; app. supp. R4, tabs 3, 7).
5. In a letter dated 21 April 2015 addressed to Ms. Sax, KBAJ stated in part:
RE: CONTRACT NO. SPE5EM-14-V-5503
Dear Sharon:
You are listed as the local administrator of the
above referenced contract. As you know from our past
requests we have been attempting to resolve the alleged
issues associated with this award. To date we have been
ignored, stonewalled and simply not responded to with
regard to our attempts to resolve the alleged problems.
Therefore, pursuant to the terms and conditions of said
contract we are hereby asking if you would agree to submit
this matter to [Alternative Disputes Resolution (ADR)] for
resolution. Please let us know your position on or before
COB, Friday April 24, 2015. Ifwe do not hear from you
appeal is "KBAJ Enterprises, LLC t/d/b/a Home Again" (see Bd. corr. gov't ltr.