The late, great Yogi Berra once said that “Baseball is 90 percent mental. The other half is physical.” Sometimes it seems as if Yogi’s logic is equally applicable to the claims process in the world of Government contracting, where 90 percent of the early battle is following the correct claim initiation procedures prescribed by the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109.
The CDA is an indispensable statute that, inter alia, codifies a disputes process for companies wishing to assert claims based on Government acts and/or omissions in connection with a contract to which the CDA applies. Although the CDA is omnipresent in the world of Government contracting, an August 4, 2016, decision by the Armed Services Board of Contract Appeals (Board) highlights the danger faced by contractors who fail to comply with its most basic requirement – i.e., the written submission of a valid “claim” to the Contracting Officer in the first instance. The case is Arab Shah Constr. Co., ASBCA No. 60553, and the facts are straightforward:
In March 2011, Arab Shah Construction Company (“Arab Shah”) was awarded a contract for $62,000 to construct a metal pole barn in the village of Mangwal, Afghanistan.
- On May 23, 2011, the Contracting Officer informed Arab Shah via e-mail that the pole barn was needed in Gardez, Afghanistan, instead of Mangwal, and that the contract would be modified to effect the change in location if Arab Shah could “keep the same price.” Later that day, Arab Shah agreed to the contract modification, but indicated that the change in location would cost “more money.” In response, the Contracting Officer purportedly pledged to pay Arab Shah’s relocation costs. Although the modification was executed just hours later, it did not provide Arab Shah with any additional funding.
- On May 26, 2011, Arab Shah paid $19,000 to transport the materials to Gardez.
- On September 22, 2011, the Government paid Arab Shah $62,224.09 – constituting the $62,000 contract amount plus $224.09 in interest.
- Arab Shah filed an undated Notice of Appeal (Appeal) that was received by the Board on April 22, 2016. The Appeal stated that Arab Shah “never got the payment for the services” despite the fact that it delivered “all the equipment . . . to the site.”
- The Government filed a Motion to Dismiss (Motion) the Appeal on May 17, 2016, for lack of jurisdiction. In so doing, the Government argued that Arab Shah “never submitted a claim in a sum certain” to the Contracting Officer.