ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
North Arizona Construction Company ) ASBCA No. 61028
)
Under Contract No. W5K9UR-12-P-7021 )
APPEARANCE FOR THE APPELLANT: Mr. Mohammad Hussein Zamani
President
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
MAJ Bruce L. Mayeaux, JA
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE YOUNGER ON THE
GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION
The government moves to dismiss this appeal, contending that appellant, North
Arizona Construction Company (appellant or North Arizona) did not timely appeal to the
Board from a contracting officer's final decision pursuant to the 90-day limitations period
in the Contract Disputes Act, 41 U.S.C. § 7104 (CDA). Appellant opposes the motion.
We grant the motion and dismiss the appeal for lack of jurisdiction.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
1. On 21 May 2012, appellant and the Department of the Army (Army or
government) bilaterally executed a purchase order, No. W5K9UR-12-P-7021 (contract),
for the construction of upgrades to a police station in Afghanistan for a total value of
1,295,306.06 Afghani or $26,640 (R4, tab 1 at 1-2). The contract incorporated the
standard Federal Acquisition Regulation (FAR) clause 52.233-1, DISPUTES (JUN 2008)
(R4, tab 1 at 20).
2. During performance, appellant allegedly encountered problems in obtaining
access to the construction site (see generally R4, tab 3). On 27 October 2012, appellant
emailed a "Memo for Record," an invoice, and other documents to the contracting officer,
Mr. Isaac Thorp (CO Thorp) (Bd. corr. file, app. 29 January 2017 notice of appeal, attach.
file name "Gmail - Invoice PB Landay Upgrades - W5K9UR-12-P-7021.pdf'). The
"Memo for Record" was characterized by appellant as its claim seeking payment for 70%
of the costs related to materials allegedly stolen because an Army commander would not
allow appellant to store the materials at the construction site, and as a result, the items
were left unsecured outside the site. Appellant stated that the previous contracting officer
advised it to submit a claim for the stolen materials after work was completed. (R4, tab 5)
The Board is unable to locate copies of the invoice and other documents that were a part
of the 27 October submission in the record.
3. In an email dated 28 October 2012, CO Thorp notified appellant that quality
issues with the construction work would need to be corrected prior to acceptance by the
government. Additionally, CO Thorp informed appellant that the government was not
responsible for appellant's loss and would not pay appellant's invoice for the allegedly
stolen materials. CO Thorp advised appellant that once corrective actions were
completed it could submit an invoice for the contract amount. (Bd. corr. file, app.
29 January 2017 notice of appeal, attach. file name "Gmail - Invoice PB Landay
Upgrades - W5K9UR-12-P-702 l.pdf') The email on its face is not styled as a final
decision.
4. Between October and November 2012, the parties continued to exchange email
correspondence regarding responsibility for the costs of the allegedly stolen materials
(see generally R4, tab 7; Bd. corr. file, app. 29 January 2017 notice of appeal, attach. file
name "Gmail - Invoice PB Landay Upgrades - W5K9UR-12-P-7021.pdf'). After
receiving confirmation from government personnel that corrective work was completed,
CO Thorp, in an email dated 14 November 2012, directed appellant to submit its invoice
for the contract amount (R4, tab 7).
5. After continued insistence by appellant that it was entitled to payment for costs
associated with the allegedly stolen materials, CO Thorp, in an email dated
27 November 2012, advised appellant to submit two invoices, one pertaining to the
contract amount and the other pertaining to appellant's request for the costs of the lost
materials which would be treated as its claim under the contract. CO Thorp also advised
appellant to provide supporting documentation with its claim. (R4, tab 7)
6. On the same date, appellant submitted its claim package via email as directed by
CO Thorp. The package included the earlier submitted 27 October 2012 "Memo for
Record" (see statement 2) and an invoice in the amount of 1,071,444 Afghani.* (Bd. corr.
file, app. email