Bahram Malikzada Construction Co.

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of -- )

)

Bahram Malikzada Construction Co. ) ASBCA Nos. 59613, 59614

)

Under Contract Nos. W9IB4N-IO-C-8182 )

W91B4N-10-C-8183 )

APPEARANCE FOR THE APPELLANT: R. Michael Smith, Esq.

Bowie & Jensen, LLC

Towson, MD

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

Army Chief Trial Attorney

MAJ James P. Leary, JA

Trial Attorney

OPINION BY ADMINISTRATIVE JUDGE YOUNGER

ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION

The government moves to dismiss these appeals for lack of jurisdiction,

contending that appellant, Bahram Malikzada Construction Co. (BMCC), failed to file a

notice of appeal within 90 days of receipt of the contracting officer's final decision as

required by the Contract Disputes Act, 41 U.S.C. § 7104(a). BMCC opposes. We grant

the motion and dismiss the appeals.

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

1. On 8 June 2010, the United States Joint Contracting Command-Iraq/Afghanistan,

Bagram Regional Contracting Center (the government) awarded Contract

No. W91B4N-10-C-8I82 (the 8I82 contract) to BMCC for the construction of Bravo Kandak

Headquarters Building I on Bagram Airfield, Afghanistan (R4, tab I). The government

subsequently awarded Contract No. W9IB4N-IO-C-8I83 (the 8I83 contract) to BMCC for the

construction of Bravo Kandak Headquarters Building 2 on I I June 20IO (R4, tab 2). Both the

8 I 82 and 8 I 83 contracts incorporated numerous standard Federal Acquisition Regulation (FAR)

clauses, including FAR 52.233-I, DISPUTES (JUL 2002) and FAR 52.249-IO, DEFAULT

(FIXED-PRICE CONSTRUCTION) (APR I984) (R4, tab I at I5, tab 2 at I4).

2. On 29 November 20IO, contracting officer Daniel R. Tatro issued two

contracting officer's final decisions, 1 terminating both the 8 I 82 and 8 I 83 contracts for

1

These decisions contained incorrect appeal rights.

default (R4, tabs 24, 25). The contracting officer subsequently issued unilateral

modifications reflecting the default terminations on 2 January 2011 (R4, tabs 26, 27).

3. The record also contains two final decisions by contracting officer

MAJ Michael Washington, both dated 14 July 2012, denying BMCC's "claim[s] for

additional payment" under the 8182 and 8183 contracts (R4, tab 30 at 2-3, tab 31at2-3).

The final decisions were provided to BMCC by emails dated 7 August 2012 (R4, tab 30 at 1,

tab 31 at 1). The claims in response to which the contracting officer issued the decisions are

not in the record. Contracting officer Washington determined that the 8182 and 8183

contracts were properly terminated and that BMCC was not entitled to additional

compensation (R4, tab 30 at 3, tab 31 at 3). Neither final decision, however, provided any

information regarding BMCC's right to appeal.

4. Following contracting officer Washington's final decisions, BMCC continued

to seek payment under the 8182 and 8183 contracts (see R4, tabs 34-39). By email dated

24 May 2013, Lt Col Matthew A. Sinning, USAF, Chief, Regional Contracting

Center-East, instructed BMCC to: "Please submit your claim and all associated

documentation to MAJ Locklear. He will be the contracting officer for this action." (R4,

tab 40) BMCC responded the same day, with a copy to contracting officer James T.

Locklear, "I would kindly requ[e]st for termination for convience [sic] to be issued and

will get back to you ASAP on Certified filled Calims [sic]" (id.).

5. BMCC submitted two documents to the government, each titled "Actual Bill of

Quantities Completed as Per Site," seeking $286, 139 under the 8182 contract and

$243,534 under the 8183 contract (R4, tabs 42, 44). BMCC provided these documents to

Col Glen E. Christensen, USAF, on 7 June 2013, which were forwarded to contracting

officer Locklear on 8 June 2013 (R4, tabs 41, 43). On 8 June 2013, contracting officer

Locklear directed BMCC to provide a certification and supporting documentation for its

claims (R4, tab 45 at 1-2).

6. The record contains an undated BMCC document titled "Claim Certification

and Support Documents" (R4, tab 51 ). This submission contained a Contract Disputes

Act certification pursuant to 41 U.S.C. § 7103(b), signed by BMCC's president,

Ziaulhaq Malikzada, which certified BMCC's claim for $286,139 under the 8182

contract and for $243,534 under the 8183 contract, a total of $529,673 (id. at 2). This

submission also provided copies of various invoices and other documents to support its

claims (id. at 3-55).

7. Contracting officer Locklear issued a 25 September 2013 final decision in

response to a "Certified Claim Submitted by BMCC," seeking $529,673 under the 8182

and 8183 contracts. In the final decision, the contracting officer denied BMCC's claim in

its entirety. The contracting officer's decision advised BMCC that:

2

This is the final decision of the Contracting Officer. You

may appeal this decision to the agency board of contract

appeals. If you decide to appeal, you must, within 90 days

from the date you receive this decision, mail or otherwise

furnish written notice to the agency board of contract appeals

and provide a copy to the Contracting Officer from whose

decision this appeal is taken.

The final decision also advised BMCC of its right to bring an action in the United States

Court of Federal Claims within 12 months of receipt in lieu of appealing to the Board.

(R4, tab 48 at 4) The contracting officer provided a copy of his decision to BMCC by

email dated 25 September 2013 (R4, tab 4 7).

8. In a 27 September 2013 email, BMCC responded to contracting officer

Locklear as follows:

This is the acknowledgement of your poor decision, and you

field [sic] to make reasonable decision, my claim's will

remain as it is, and with the Evidence that I have for a LAW

Suit, will start my Appeal, your senior contracting officer

visited the factory and physically Tasted the Pre-cast wall and

I have proof that he verify and I have recorded Voice

approval,. and will prove that these wall were pre-casted back

in 2010, As a local contractor and throw out my long history I

have had business with the U.S. Government, I been always

reliable and honest to the U.S Military, In return No one

would consider my problem and threats which me and my

family is facing with, the amount for these claims are not

affordable to be paid from my family, like i say i have more

than these claims and will presume to supreme Court of

U.S.A.

Thank you for making my day.

(R4, tab 49 at 1) (Syntax in original)

9. A 16 December 2013 email from the government to BMCC provided, in

pertinent part: "Captain Arizala is from the Contracting Office here on Bagram Airfield.

Captain Arizala is willing to inform you of how the appeals process will work and set up

a meeting." (R4, tab 50 at 1) BMCC emailed Captain Arizala on 17 December 2013,

with copy to other government officials, thanking him for his effort "to assist BMCC

[through] our long lasting dispute" and noting that "we [BMCC] are trying to find the

right chain of command to appeal in order to recover our los[s] and as an [A]fghan

3

company based in Afghanistan we are unable to appeal [through] the US legal system ... "

(id. at 2). The government's 17 December 2013 email reply to BMCC stated:

There is no need for a meeting, you have been informed that

this issue has been addressed by the RCC [Regional

Contracting Center] and this matter is now closed. If you

don't agree with the final decision of the contracting officer,

you are more than welcome to contact the Armed Services

Board of Contract Appeals.

(Id. at 3) The government's 17 December 2013 email then proceeded to provide BMCC

the contact information for this Board, including both the Board's email address and the

mailing address for the Board's offices in Northern Virginia (id.).

10. In March 2014, Mr. Malikzada protested contracting officer Locklear's final

decision by blocking a gate at Bagram Airfield (app. opp'n, Malikzada decl. if 15).

Following this incident, on 20 March 2014, lLT Joseph Krebsbach emailed

Ms. Mamie Gustavson noting that Mr. Malikzada had "a complaint regarding payment on

a contract for work that occurred in 201 O" and stating that he and his supervisor would

"be more than happy to assist anyone in making a claim, showing them the correct

channels through which to do so." lLT Krebsbach contacted Ms. Gustavson because

Mr. Malikzada "spoke highly of you, and indicated that he has a close relationship with

you," and hoped that Ms. Gustavson would relay his message to Mr. Malikzada. (App.

opp'n, Gustavson decl., ex. 1at2) Ms. Gustavson's 20 March 2014 email reply stated

that BMCC had "been through this particular process a number of time and has even been

told to go to Virginia to file a lawsuit." Ms. Gustavson further stated that BMCC was

moving to using political pressure to get compensated and that she had requested that the

Special Inspector General for Afghanistan Reconstruction open an investigation into the

matter. (App. opp'n, Gustavson decl., ex. 1 at 1-2)

11. On 6 October 2014, the Board received a letter, dated 22 September 2014 and

postmarked 25 September 2014, titled "Subject: Bahram Malikzada Construction

Company (BMCC) Appeal," along with numerous attachments. BMCC's 22 September

2014 letter directly addressed many of the paragraphs in contracting officer Locklear' s

25 September 2013 final decision, and requested that the Board reverse the default

terminations and award it $415,568.40 under the 8182 and 8183 contracts. The Board

docketed BMCC's 22 September 2014 letter as two appeals, one under each contract.

4

DECISION

The government moves to dismiss these appeals for lack of jurisdiction, arguing

that BMCC's 22 September 2014 letter (see statement 11) was not filed within the 90-day

period prescribed by the Contract Disputes Act, 41 U.S.C. § 7104(a) (gov't mot. at 6-7).

In opposition, BMCC does not contend that its 22 September 2014 letter was a timely

notice of appeal. Rather, relying upon this Board's misdirected appeal cases, BMCC

asserts that its 27 September 2013 email to contracting officer Locklear provides a basis

for the Board's jurisdiction over these appeals (app. opp'n at 7-9). The government

responds that the 27 September 2013 email fails to provide a basis for the Board's

jurisdiction because BMCC failed to make an election of forum (gov't reply at 4-6).

Under the Contract Disputes Act, a contractor may appeal a contracting officer's

decision to an agency board of contract appeals within 90 days of receipt of the decision.

41 U.S.C. § 7104(a); Creek Services, LLC, ASBCA No. 59127, 14-1 BCA ii 35,648 at

174,554; Alnawars Co., ASBCA No. 58678, 13 BCA ii 35,463 at 173,909. The timely

filing of an appeal within the 90-day statutory period is jurisdictional and cannot be

waived. Cosmic Construction Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir.

1982); Waterstone Environmental Hydrology & Engineering, Inc., ASBCA No. 57557,

12-1BCAii35,028 at 172,141-42; Dick Pacific/GHEMM JV, ASBCA Nos. 55562,

55563, 07-1BCAii33,469 at 165,920.

We have long held that filing an appeal with the contracting officer is tantamount to

filing an appeal with the Board. Ft. McCoy Shipping & Services, ASBCA No. 58673,

13 BCA ii 35,429 at 173,795; Mass. Microwave Tube & Device Corp., ASBCA No. 52020,

99-1BCAii30,350 at 150,100; I.TS. Corp., ASBCA No. 31993, 86-1BCAii18,678 at

93,927. An otherwise sufficient notice of appeal filed with the contracting officer rather

than the Board, and furnished within the 90-day appeal period, is a valid notice of appeal.

JWA Emadel Enterprises, Inc., ASBCA No. 51016, 98-2 BCA ii 29,765 at 147,503. To be

an effective notice of appeal, a writing filed within the requisite time period must express

dissatisfaction with the contracting officer's decision and indicate an intention to appeal the

decision to a higher authority. Ft. McCoy, 13 BCA ii 35,429 at 173,794; ESA

Environmental Specialists, Inc., ASBCA No. 55620, 07-1BCAii33,573 at 166,312.

This Board, however, is not the only forum for challenging a contracting officer's

decision. The Contract Disputes Act provides that in lieu of filing an appeal with this

Board, a contractor may bring an action directly in the United States Court of Federal

Claims within 12 months of receipt of a contracting officer's decision. 41 U.S.C.

§ 7104(b )( 1), (3 ). Once a contractor makes an election to challenge the contracting

officer's decision in one forum, the contractor can no longer pursue its claim in the other

forum. Bonneville Associates v. United States, 43 F.3d 649, 653 (Fed. Cir. 1994).

Accordingly, for this Board's jurisdiction to attach, a contractor's communication with

the contracting officer must express an election to appeal to this Board. Stewart-Thomas

5

Industries, Inc., ASBCA No. 38773, 90-1BCA~22,481 at 112,835-36; see also Maria

Lochbrunner, ASBCA Nos. 57235, 57236, 11-2 BCA ~ 34,783 at 171,186;

Environmental Safety Consultants, Inc., ASBCA No. 54995, 06-1 BCA ~ 33,230 at

164,666; Wach-und Werkschutz Kleve-Bocholt GmbH, ASBCA No. 41651, 91-2 BCA

~ 23,862 at 119,553. We have inferred such an intent to appeal to this Board where a

contractor's communication to the contracting officer uses the term "appeal." Mass.

Microwave, 99-1 BCA ~ 30,350 at 150,100 (noting that the Contract Disputes Act "does

not use the term 'appeal' for proceedings in the [Court of Federal Claims]");

McNamara-Lunz Vans & Warehouses, Inc., ASBCA No. 38057, 89-2 BCA ~ 21,636 at

108,856 (noting that the contracting officer's decision "advised the contractor that it

could 'appeal' to this Board or 'bring an action' in the U.S. Claims Court") (emphasis in

original); see also Axxon Int'!, LLC, ASBCA Nos. 59497, 59498, 15-1 BCA ~ 35,864 at

175,342 (finding that a contractor's letter was an effective notice of appeal where the

letter stated that it was "an appeal of the wrongful termination"). However, we have also

stated that we will not retroactively attach to correspondence the requisite intent to appeal

to the Board where a review of the record demonstrates that such intent was lacking when

submitted. AIW-Alton, Inc., ASBCA No. 46917, 94-3 BCA ~ 27,279 at 135,904-05;

Oconto Electric, Inc., ASBCA No. 36789, 88-3 BCA ~ 21,188 at 106,939, ajf'd, 884 F.2d

1399 (Fed. Cir. 1989) (unpublished table decision).

We conclude that BMCC's 27 September 2013 email to the contracting officer

(see statement 8) does not constitute an effective notice of appeal. Although BMCC

stated that it "will start [its] Appeal" (statement 8), the record does not reflect an intent by

BMCC to appeal to this Board through that email. BMCC's 17 December 2013 email to

the government stated that it could not appeal through the "US legal system," indicating

that BMCC was attempting to resolve the matter locally (statement 9). Although the

government's 17 December 2013 response noted that the matter was closed by the

Regional Contracting Center, stated that BMCC could contact this Board if it did not

agree with contracting officer Locklear's final decision, and provided BMCC with this

Board's contact information (statement 9), BMCC did not contact this Board until nine

months later with its 22 September 2014 letter. The record reflects that in the meantime

BMCC continued to seek compensation through local channels in Afghanistan

(statement 10). Based on this record, we cannot attribute an intent to appeal to this Board

to BMCC's 27 September 2013 email.

As we stated in Oconto, "[w ]hile the Board historically has interpreted

contractors' communications liberally in determining whether an intent to appeal exists,

the record reasonably must demonstrate an intent to appeal to the Board in order for our

jurisdiction to attach." 88-3 BCA ~ 21,188 at 106,939. BMCC's 27 September 2013

email was not an effective notice of appeal because the record does not demonstrate that

BMCC had the requisite intent to appeal to this Board. BMCC's 22 September 2014

letter was filed outside the prescribed 90-day appeal period. Absent a timely notice of

appeal, we lack jurisdiction to consider these appeals.

6

CONCLUSION

The government's motion to dismiss for lack of jurisdiction is granted. The

appeals are dismissed.

Dated: 8 October 2015

Administrative Judge

Armed Services Board

of Contract Appeals

RICHARD SHACKLEFORD

Administrative Judge Administrative Judge

Acting Chairman Vice Chairman

Armed Services Board Armed Services Board

of Contract Appeals of Contract Appeals

I certify that the foregoing is a true copy of the Opinion and Decision of the

Armed Services Board of Contract Appeals in ASBCA Nos. 59613, 59614, Appeals of

Bahram Malikzada Construction Co., rendered in conformance with the Board's Charter.

Dated:

JEFFREY D. GARDIN

R.ecorder, Armed Services

Board of Contract Appeals

7