• R.D. Lieberman,Consultant

Only A Contractor, Not an Imposter, May Submit a Valid Claim

An Air Force contracting officer (“CO”) receives an email referencing Contract No. H92237-13-C-5002 (the “Contract”) for general labor services for a base in Afghanistan. The General Director of Tawhid Afzali Construction Company (“TACC”), Mr. Muhmmad Nazeer, states in the email that his company did not receive payment for the three year old Contract, enclosing a purported copy of the Contract which was dated three years prior and showed a face amount of $72,400. The information on the face of the Contract contradicted the original award determination in the contract file which stated that “it is determined that Najibullah Rahmal, in the amount of $94,240, is most advantageous to the government.”

The CO has no copy of the Contract in the file, and no record of an award being made to TACC. The CO asks for supporting documentation from TACC, including invoices, name of the Contracting Officer Representative, and the solicitation. TACC did not provide the details.

The CO contacts an investigator with the Special Inspector General for Afghanistan Reconstruction (“SIGAR”), and the investigator contacts TACC, requesting that the company come to Bagram Airfield with its supporting documents, showing it performed the work, and bringing with it the contractor licenses required to perform the Contract. TACC refused to identify themselves or cooperate. The official point of contact for TACC was contacted, and the person had no idea who could be making these claims and was unaware of the Contract. SIGAR recommended that the issue be closed, because the investigator believed the person who contacted the CO was an impersonator.

The CO denied the claim because the awardee was Najibullah Rahmal, not TACC.

The Armed Services Board of Contract Appeals (“ASBCA”) considers TACC’s appeal and states:

  • The Contract Disputes Act, 41 U.S.C. 7101-7109 requires that a claimant be a “contractor” but the only credible contractor here was Najibullah Rahmal, not TACC.

  • There was no demand for a “sum certain,” as required by the Contract Disputes Act.

  • TACC failed to submit a proper claim to the contracting officer, as also required.

For all these reasons, the Board dismissed the appeal for lack of jurisdiction.See Tawhid Afzali Const. Co., ASBCA No. 61198, Jan 9, 2018

The Takeaway: Government contracting officers must be vigilant about impersonators or imposters who may seek to submit claims for money. The CO in this case sought proof (documentation), scoured his file, and because of the unusual nature of the claim, contacted investigators before acting. Lacking any proof, the CO denied the claim, and so did the Board. All of these actions are consistent with the CO’s and the ASBCA’s responsibilities as a guardian of U.S. Government funds.

For other helpful suggestions on government contracting, visit:

Richard D. Lieberman’s FAR Consulting at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes/.

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Square Corners

Nearly 100 years ago, U.S. Supreme Court Justice Holmes wrote “Men must turn square corners when they deal with the Government.” Rock Island, Ark. & LA RR Co. v. United States, 254 U.S. 141, 143 (19

The website of Richard Donald Lieberman, a government contracts consultant and retired attorney who is the author of both "The 100 Worst Mistakes in Government Contracting" (with Jason Morgan) and "The 100 Worst Government Mistakes in Government Contracting." Richard Lieberman concentrates on Federal Acquisition Regulation (FAR) consulting and training, including  commercial item contracting (FAR Part 12), compliance with proposal requirements (FAR Part 15 negotiated procurement), sealed bidding (FAR Part 14), compliance with solicitation requirements, contract administration (FAR Part 42), contract modifications and changes (FAR Part 43), subcontracting and flowdown requirements (FAR Part 44), government property (FAR Part 45), quality assurance (FAR Part 46), obtaining invoiced payments owed to contractors,  and other compliance with the FAR. Mr.Lieberman is also involved in numerous community service activities.  See LinkedIn profile at https://www.linkedin.com/in/richard-d-lieberman-3a25257a/.This website and blog are for educational and information purposes only.  Nothing posted on this website constitutes legal advice, which can only be obtained from a qualified attorney. Website Owner/Consultant does not engage in the practice of law and will not provide legal advice or legal services based on competence and standing in the law. Legal filings and other aspects of a legal practice must be performed by an appropriate attorney. Using this website does not establish an attorney-client relationship. Although the author strives to present accurate information, the information provided on this site is not guaranteed to be complete, correct or up-to-date.  The views expressed on this blog are solely those of the author. FAR Consulting & Training, Bethesda, Maryland, Tel. 202-520-5780, rliebermanconsultant@gmail.com

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