Tokyo Company

ARMED SERVICES BOARD OF CONTRACT APPEALS

Petition of -- )

)

Tokyo Company ) ASBCA No. 59709-953

)

Under Contract No. W90U3Z-08-M-803 l )

APPEARANCE FOR THE PETITIONER: Mr. Beniamen Monadhil

Owner/General Manager

APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.

Army Chief Trial Attorney

CPT Melvin A. Lee, JA

Trial Attorney

ORDER PURSUANT TO BOARD RULE l(a)(5)

DIRECTING CONTRACTING OFFICER TO ISSUE DECISION

Pursuant to Board Rule l(a)(5), Tokyo Company petitions the Board to direct

the contracting officer (CO) to issue a decision on its 12 May 2014 claim. In response,

the government requests that it not be ordered to do so, asserting it already has issued a

final decision. The government also argues petitioner lacks privity of contract and

thus a new final decision is not warranted.

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE PETITION

1. By email dated 27 November 2014, Tokyo Company filed the instant

petition, stating the CO "does not send me his decision on this case," and listing

several dates that petitioner's owner, Mr. Beniamen Monadhil, purportedly sent emails

to named individuals at the Reachback Contracting Command at Rock Island, Illinois.

Petitioner listed dates from 8 May 2014 to 11November2014, and indicated he

received a response from only one inquiry, dated 14 May 2014. Petitioner's email

request to the Board contained numerous attachments, including what appears to be a

contract and modifications, a 15 February 2010 invoice for $920,602, and a signed

claim certification dated 9 May 2014.

2. By Order dated 3 December 2014, the Board directed the government to

show cause why an order directing the CO to issue a final decision should not be

issued or indicate when a decision would be issued.

3. The government responded by letter dated 22 January 2015, requesting that

it not be ordered to produce a new CO's final decision in this matter because a

decision has already been issued by the CO on 11 September 2013 and attached a copy

of the decision. Further, the government argued that

[T]he government has serious doubts that a contract ever

existed with the petitioner. A review of the government's

contract retrieval and archival system shows that the

subject contract was awarded, terminated, and closed out

with an entirely separate company. There is no

documentation within this system showing that the

petitioner was awarded the subject contract or performed

any work on the contract.... Since petitioner is not a

contractor as defined by the CDA and lacks privity of

contract with the government, a new contracting officer's

final decision on this matter is not warranted.

4. By Order dated 27 January 2015, the Board informed the government that

the final decision dated 11 September 2013 was the subject of ASBCA No. 59059,

which was dismissed by the Board on 23 April 2014 for Tokyo Company's failure to

properly sign or execute its claim certification in accordance with the requirement of

FAR 33.207(e). Tokyo Company, ASBCA No. 59059, 14-1BCAif35,590. The

Board pointed out that "[i]t appears from the current record that petitioner is seeking a

final decision on a different claim than the one at issue in ASBCA No. 59059."

5. The Board further stated in the 27 January 2015 Order, it was unclear which

documents attached to petitioner's 27 November 2014 email constituted the claim,

whether the 9 May 2014 certification related to any particular claim, or if the

certification or any claim was submitted to a CO. Petitioner was directed to provide:

( 1) a copy of the claim documents that it submitted to the CO, including any

certification; (2) evidence that the claim and any certification were actually submitted

to a CO; and (3) evidence of the date of claim submittal.

6. By email dated 28 January 2015, petitioner responded to the 27 January

2015 Order with the following:

On 12 May 2014, Tokyo [C]ompany has submitted its

claim as well as the signed Certification of Claims to the

Contracting Officer, Andrea Kalb, Branch C Chief, Global

Reachback Contracting Division, Army Contracting

Command - Rock Island, CCRC-RC. She replied on

14 May 2014 stating that "I have received your request."

Copies of these e-mails are attached with this letter. After

that we sent her several e-mails in different dates to remind

her about our request because we did not receive any

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update[.] Copies of these e-mails are also attached with

this letter.

7. Petitioner's documents indicate that on 12 May 2014, Mr. Monadhil

submitted a claim via email to the CO, Andrea Kalb, Branch C Chief, Global

Reachback Contracting Division, Army Contracting Command - Rock Island Arsenal,

Illinois, stating, "The ASBCA has dismissed our appeal... the ASBCA lacks the

jurisdiction because my claim certification lacks the required signature."

Mr. Monadhil's 12 May 2014 correspondence included several attachments, listed

seriatim in his cover email. These included a contract (no. 6), a 15 February 2010

invoice for payment of $920,602 (no. 7), and a signed claim certification dated 9 May

2014 (no. 12). In the last paragraph of his email, Mr. Monadhil appears to be asking

the CO to reconsider her original decision because of what he calls "these new

evidences and proofs."

8. By email dated 14 May 2014, the CO responded to petitioner with the

following:

I have received your request. Please stop bombarding me

with emails. I have 220,000 contracts to manage. Your

actions are only making your case worse. I will review

your information again. However, it is unlikely I will

overturn a Contracting Officer decision.

9. By email dated 4 June 2014, petitioner sent another email to the CO, which

read:

Ma'am,

I just talked to you by phone, you advised me to go to

ASBCA, but in order to do that, I need you to provide me

with new final decision about this case, so I can submit my

appeal on this final decision to ASBCA. I am waiting for

your reply. Thanks.

10. Petitioner provided copies of additional emails sent to the CO dated

21August2014, 5 November 2014, 6 November 2014, 7 November 2014,

10 November 2014 and 11 November 2014 requesting a response. There is no

indication petitioner received anything further from the CO.

11. In lieu of appealing from a deemed denial of its claim (41 U.S.C.

§ 7103(f)(5)), by email dated 27 November 2014, petitioner filed the instant petition

before us pursuant to 41 U.S.C. § 7103(f)(4) and Board Rule l(a)(5).

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DECISION

When a CO receives a certified claim over $100,000, the Contract Disputes Act

(CDA), 41 U.S.C. §§ 7101-7109, requires that within sixty days of receipt of the

claim, the CO shall either (a) issue a decision or (b) notify the contractor of the time

within which a decision will be issued. 41 U.S.C. § 7103(f)(2). In this instance, the

CO acknowledged receipt of petitioner's documents by email dated 14 May 2014

(SOF ii 8). To date, the CO has not issued a final decision on the 12 May 2014 claim.

The government now argues it should not have to issue another final decision

because it issued one dated 11 September 2013. Additionally, the government argues

it should not have to issue a final decision because Tokyo Company is not in privity of

contract with the government. (SOF ii 3)

At the outset, we note the 11 September 2013 final decision in ASBCA

No. 59059 was dismissed by the Board on 23 April 2014 because Tokyo Company

failed to "properly sign or execute its claim certification in accordance with the

requirement of FAR 33.207(e)" (SOF ii 4). Tokyo Company, 14-1BCAii35,590

at 174,392. There, we held the lack of a signature on a certification is not a defect that

can be cured under FAR 33.201, and the fact that the CO rendered a decision on the

Tokyo Claim is inconsequential, citing Paul E. Lehman, Inc. v. United States, 673 F.2d

352, 356 (Ct. Cl. 1982), wherein the court stated, "The contracting officer... had no

authority to waive a [certification] requirement that Congress imposed." The

government should not be allowed to rely on a previous CO decision found to be

inconsequential based on a jurisdictional defect to avoid issuing a decision now that

the jurisdictional defect has been corrected.

The government also argues that it should not have to issue a decision on what

appears to be a properly certified claim because "the government has serious doubts

that a contract ever existed with the petitioner." The government goes on, "Since

petitioner is not a contractor as defined by the CDA and lacks privity of contract with

the government," it should not be ordered to issue a new final decision. (SOF ii 3)

The government is confusing the merits of petitioner's claim with the CO' s

obligation to issue a decision. On 12 May 2014, petitioner submitted a properly

certified claim to the CO (SOF ii 7). According to the CDA, 41 U.S.C. § 7103(d), the

CO "shall issue a decision in writing and shall mail or otherwise furnish a copy of the

decision to the contractor." The government's argument that it doubts the validity of

Petitioner's alleged contract and should be entitled to refuse to issue a final decision

ignores the decisions by the Board and courts that hold a contractor initially need only

plead a valid contract, not prove it. "[T]he law is clear that, [for us] to have

jurisdiction, a valid contract must only be pleaded, not ultimately proven." Dongbuk

R&U Engineering Co., ASBCA No. 58300, 13 BCA ii 35,389 at 173,637 (quoting

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Total Medical Mgmt, Inc. v. United States, 104 F.3d 1314, 1319 (Fed. Cir.), cert,

denied, 522 U.S. 857 (1997)); accord Engage Learning, Inc. v. Salazar, 660 F.3d

1346, 1353 (Fed. Cir. 2011); Lewis v. United States, 70 F.3d 597, 602, 604 (Fed. Cir.

1995); Gould, Inc. v. United States, 67 F.3d 925, 929-30 (Fed. Cir. 1995). Tokyo

Company has made a non-frivolous, assertion of an express contract with the

government, and has provided copies of the alleged contract to the CO. The

government's contention-that the government does not believe that a contract existed

with this petitioner-is a challenge to the merits of the claim. As such, the CO may so

state in her final decision if she decides to deny the claim. At this stage in the

proceedings we do not decide the merits of petitioner's claim. See, e.g., Ironhorse

Ltd., ASBCA No. 56455-920, 09-1BCAi!34,096 at 168,591.

CONCLUSION

For the reasons stated we direct the CO, pursuant to 41 U.S.C. § 7103(t)(4), to

issue a decision no later than 30 days from the date of this decision.

This Order completes all necessary action by the Board. If the CO fails to

comply with this Order, such failure will be deemed a decision by the CO denying the

claim and the contractor may appeal to this Board or sue in the United States Court of

Federal Claims pursuant to 41 U.S.C. § 7103(f)(5) or§ 7104.

Dated: 12 February 2015

~#

Administrative Judge

Acting Chairman

Armed Services Board

of Contract Appeals

I concur I concur

......

~--~

RICHARD SHACKLEFORD

Administrative Judge Administrative Judge

Vice Chairman Armed Services Board

Armed Services Board of Contract Appeals

of Contract Appeals

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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. 59709-953, Petition of

Tokyo Company, rendered in conformance with the Board's Charter.

Dated:

JEFFREY D. GARDIN

Recorder, Armed Services

Board of Contract Appeals

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